2018Gahap24956 Registration of transfer of ownership

A

Attorney Lee Jong-soo et al.*

○ District Land Partitioning Association

소송대리인 변호사 @@

April 18, 2019

June 27, 2019

1. As to each of the lands listed in the separate sheet to the Plaintiff, the Defendant shall implement the procedure for ownership transfer registration on May 31, 1997, based on the entrustment contract for the execution of the land readjustment project by ○○ District.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

A. Conclusion of an entrustment contract between the Defendant and the Bilateral Industry

1) The Defendant (hereinafter “Defendant Union”) is a cooperative that carries out a land readjustment project for the area of 275,070 square meters in Seosan-gun, Ulsan-gun, Seosan-gun, Seoul Special Metropolitan City (hereinafter “instant land rearrangement project”) (hereinafter “instant land rearrangement project”).

2) On May 31, 1997, the Defendant Cooperative concluded an entrustment contract with multiple companies regarding the execution right of the instant compartmentalization and rearrangement project (hereinafter “instant entrustment contract”) with which it would commission the Balbry Industry Co., Ltd. (hereinafter “BU”) to carry out the instant rearrangement and rearrangement project (hereinafter “instant entrustment contract”), and the main contents thereof are as follows.

Article 2 (Contract Amount) (1) In lieu of paying 539,268,390 won of the above settlement amount to be paid to the defendant cooperative, the amount of the contract shall be the same as the contract amount between the defendant cooperative and the Doe Development (i.e., the above 539,268,390 won paid to the defendant cooperative, i.e., the purport that the Bright Industry is included in the project cost of the Bright Industry.)

3) Bilateral Industry was built in accordance with the instant consignment contract. On August 22, 2001, the Defendant Mutual Association terminated the instant consignment contract on the grounds that the Bright Industry did not carry out the instant compartmentalization and rearrangement project.

B. Lawsuit seeking confirmation of the existence of an obligation on the joint venture industry of the Defendant Union

On October 17, 2001, the Defendant Union filed a lawsuit to confirm the existence of the obligation under the instant consignment contract with the Ulsan District Court 2001Kahap3425, Ulsan District Court 2001, and on February 18, 2005, the appellate court rendered on February 18, 2005 that “the obligation under the instant consignment contract does not exceed KRW 2,876,887,920 shall not exceed KRW 2,87,920” (the Busan High Court 2004Na3529). The judgment became final and conclusive on August 19, 2005 as the appeal by the Defendant Union was dismissed (Supreme Court 2005Da19491).

(c) Action to change the name of the owner of the land allotted by the authorities in recompense for development outlay industry;

On January 7, 2002, Bright Industry filed a lawsuit against the Defendant Mutual Aid Association to change the name of the owner of the land allotted by the authorities in recompense for development outlay as the Ulsan District Court 2002Gahap41, and from that appellate court on February 18, 2005, “The Defendant Mutual Aid Association shall dismiss the Defendant Mutual Aid Association’s appeal (Supreme Court Decision 2004Na3536) as to the land allotted by the authorities in recompense for development recompense for development outlay, including the “attached list” of the land allotted by the authorities in recompense for development recompense for development recompense for the instant land (hereinafter “instant land”) 11,416.2 square meters (=2,876,87,920, 252,00 won) including the instant land allotted by the authorities in recompense for development recompense for development recompense for development recompense for development outlay for development outlay for the instant land, and the judgment was finalized by the Defendant Mutual Aid Association’s appeal (Supreme Court Decision 2005Da19507).

D. Assignment of assignment of the Bright Industry and litigation relationship between the Plaintiff and the Defendant Union

1) On January 31, 201, 201, after a lawsuit to change the name of the said owner became final and conclusive, the Bilateral Industry transferred to the Plaintiff “the claim for late payment under the instant entrustment contract that the Defendant Industry has against the Defendant Association” (hereinafter “transfer of claim”), and the Defendant Union consented thereto.

2) On August 4, 2015, the Plaintiff filed a lawsuit against the Defendant Mutual Association to change the name of the owner of the land allotted by the authorities in recompense for development outlay under the instant consignment contract as the Ulsan District Court 2015Gahap2634, the lower court rendered a judgment that “the Defendant Mutual Association will implement the procedure to change the name of the owner of the land allotted by the authorities in recompense for development outlay on the ground of the instant consignment contract with respect to the land allotted by the authorities in recompense for development outlay for development outlay 11,416.2 square meters, including the instant land allotted by the authorities in recompense for development outlay,” and the said judgment was finalized around that time on November 8, 2017 by the Defendant Mutual Association’s appeal (Seoul High Court 2017Na54367

(e) Registration of replotting disposition and preservation.

The Ulsan Metropolitan City Mayor issued a disposition of replotting regarding each of the instant land allotted by the authorities in recompense for development outlay on April 19, 2018, and accordingly, the instant land allotted by the authorities in recompense for development outlay was finalized as indicated in the “registration of preservation” column in the annexed sheet (hereinafter “instant land”). The instant land was completed on May 30, 2018 in the future of the Defendant Cooperative.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6, 17, 18, Eul evidence 3, 4 and 6 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination as to the cause of action

According to the above facts, the B/L industry is obliged to pay the Defendant Union the development recompense land of KRW 11,416.2 square meters including the instant development recompense land corresponding to the claim for the completion payment under the instant consignment contract (=2,876,887,920 won/252,00 won/), and the B/L industry transfers the ownership completion bond under the instant consignment contract to the Plaintiff on January 31, 201, and the instant development recompense land became final and conclusive as the land of this case on April 19, 2018 in accordance with a replotting disposition, and thus, the Defendant Union is obligated to implement the procedure for the ownership transfer registration on the instant land as the ground of the consignment rearrangement project on May 31, 197, in the absence of other special circumstances.

3. Determination on the defendant union's non-performance defense

A. The parties' assertion

1) The Defendant Union asserts that, prior to the instant replotting disposition, the instant land was sold to a third party, subject to the resolution of the 16th council prior to the instant land substitution disposition; each purchaser, who is the nominal owner of the land secured for the recompense of development outlay, acquired the instant land at the original time following the determination of a replotting disposition by changing the name of each owner on the ledger of the land secured for the recompense of development recompense of development recompense from each purchaser to each purchaser; thus, the Plaintiff Union

2) On this issue, the plaintiff asserts that since the decision of the defendant union to elect the president B and other officers at the 13th council of representatives and the decision of the 16th council to sell the land allotted by the development recompense for the development recompense for the development recompense for the development recompense for the development recompense for the development recompense for the development recompense for the land in this case is all null and void, and therefore the purchaser of the above sales contract cannot be deemed to have acquired the ownership of the land in this case at the original time, the plaintiff's right to claim for ownership transfer registration against the

(b) Fact of recognition;

The following facts are recognized if Gap evidence Nos. 8, 11, 12, 13, and Eul evidence Nos. 4 added the purport of the whole pleadings:

1) On July 28, 199, the Defendant Union held 14 representatives with the attendance of 13th representatives from among 29 representatives, and decided to replace 15 representatives who died or were less present at the above board of representatives with the attendance rate. Upon recommendation, the representatives present at the meeting made a resolution to select 3 directors, 1 auditors, and 14 representatives as well as 20 representatives from among 29 representatives.

2) On July 3, 2001, the Defendant Union held 22 representatives, including 12 representatives from among the representatives elected by the said 13th council of delegates, and revised the business plan on the ground that the said council claims for excessive progress payment, and paid the progress payment on the basis of relevant data. However, if Bright Industry fails to complete the necessary construction work by July 29, 2001, the Defendant Union decided to sell development recompense land owned by the association and perform the remaining construction work by itself.

3) On August 7, 2001, the board of directors of the 52th meeting passed a resolution on August 7, 2001 to terminate the entrustment contract of this case on the grounds that the BB industry does not submit documents for settlement of completedness, and to sell the land allotted by the authorities in recompense for development outlay and execute the remaining construction, and to entrust the authority to sell the land allotted by the authorities in recompense for development outlay to B, the president of the partnership.

4) On August 22, 2001, the Defendant Mutual Aid Association terminated the instant consignment contract to the BB industry, and the head of the Defendant Mutual Aid Association sold each purchaser the instant land allotted by the development recompense on the date indicated in the “date of sale” column as indicated below, and changed the name of the owner of the land allotted by the development recompense for development outlay around that time to each purchaser.

A person shall be appointed.

5) The law and articles of association relating to the election of directors such as the president of the defendant association and the members of the board of representatives

the following shall be applicable:

(2) In case where the number of members of an association is 100 or more, the association shall establish a board of representatives in lieu of the general meeting. (1) Article 22 (2) (1) of the former Land Planning and Utilization Act (amended by Act No. 6252, Jul. 1, 200; hereinafter referred to as the "former Land Planning and Utilization Act"), and the following officers shall be established in the association, and the number of members of the association shall be determined by the articles of association within the scope of the standards prescribed by the Presidential Decree.

C. Determination

1) In the case of a land partition rearrangement cooperative, an executive officer of a cooperative is selected and appointed by the general meeting in accordance with Article 22 of the former Land Rearrangement and Rearrangement Projects Act, and Article 27(3) of the former Land Rearrangement and Rearrangement Projects Act and Article 18 of the Enforcement Decree of the same Act can act on behalf of the general meeting. However, the appointment of the head of a cooperative, a director, an auditor, or an auditor may be excluded. The articles of association of the defendant cooperative also provide that the head of a cooperative, a director, an auditor, or a representative shall be elected at the general meeting in the same manner as the above provisions of the law are the same, and the board of representatives

Nevertheless, according to the above facts, the defendant union made a resolution to appoint three directors, one auditor, and 14 representatives at the 13th council of representatives, and the two representatives were elected as the president of the defendant union. The articles of incorporation of the defendant union should be at least 20 persons (29 persons x 2/3) of the incumbent officers in order to become a representative of the board of representatives. If the above officers are excluded, 14 persons at the 13th council of representatives, 16th council of representatives, and 10 million persons at each board of representatives were present at the 13th council of representatives, and the 16th council of representatives decided to sell the development recompense land of this case at the 13th council of representatives, and therefore, the 16th council of representatives, which was concluded by the 16th council of representatives with respect to the development recompense land of this case, cannot be deemed as having been registered in the name of the owner of the land of this case, and therefore the plaintiff's claim for the transfer registration of the ownership of the land of this case.

2) Even if the sales contract on the land allotted by the Defendant Union is null and void, the Defendant Union made a resolution of ratification of all the sales contract until the 17th council of March 14, 2002, the 18th council of July 16, 2002, the 19th council of November 27, 2002, and the 19th council of November 27, 2002, the 17th council of March 14, 2002, the 17th council of July 18, 202, the 19th council of November 27, 2002, and the 19th council of November 27, 2002, were comprised of representatives elected by the resolution of the 13th council of representatives, and therefore, the above 19th council of the Defendant Union cannot be deemed to have any defects in the sales contract on the land allotted by the development recompense of development outlay.

4. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by the assent of all participating Justices.

The presiding judge, appointed judge and appointed bonds;

is a judge:

Judges Kim Nam-young