2017dan5048372 Other (money)

A

B Housing Association

November 16, 2017

December 21, 2017

1. The defendant shall pay to the plaintiff 3,429,380 won and 33,00,000 won with 15% interest per annum from August 9, 2017 to the day of full payment.

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

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Indication of claims: It shall be as shown in attached Form; and

2. Judgment made by deemed confession (Article 208 (3) 2 of the Civil Procedure Act).

Full completion of judges

Grounds for Claim

1. Relationship other than the Parties

The plaintiff is a purchaser of the partnership apartment scheduled to be transferred to the Chungcheong-gun C Group, and is a member of the association, the implementer of which is the defendant, and the defendant is a purchaser of the above apartment (see, e.g., the cooperative certificate No. 1 and the cooperative agency contract) to construct the above apartment.

2. Conclusion of a contract for joining an association and for acting an association;

On August 7, 2016, the Plaintiff: (a) the Defendant Union and the intermediate payment of KRW 13,500,000; (b) the intermediate payment of KRW 108,000; and (c) the remainder of KRW 13,500,000; and (c) B the Plaintiff’s association at KRW 135,00,000.

In addition, I concluded a separate construction contract with a total of KRW 3,00,000 for down payment and KRW 5,500,000 for the remainder and KRW 85,500,000 for the balcony expansion.

【Main Contents of the Contract】

O Subject matters: B housing association apartment (a type of 59㎡ A)

O Goods sold in lots: B Housing Association 59A 25 p. 103 Dong 401

O Sale price: 135,000,000

O Expenses for expanding balconys: 8,500,000 won

O Time limit for the payment of contributions: See Attached Form 1.

O Major special terms and conditions: To refund the full amount of the down payment (the full amount paid) at the time of the commencement of the construction in a year: Provided, That the delay in the progress of the documents approved for the commencement of the construction of the government office and the delay in one month due to other reasons

3. Payment of down payment and intermediate payments.

The Plaintiff entered into the above contract with the account designated by the Defendant (refer to the respective certificates of transfer No. 2). The Plaintiff paid the down payment and the intermediate payment with the deposit account No. 351-0725-0981-83 (State). (See the certificates of transfer No. 2)

On August 8, 2016, the fixed amount of date and the fixed amount of down payment 8.00,000,000,000 on September 2, 2016, the annual contract deposit (including the down payment of three million won for the low construction work) 8,500,000,000, the total amount of substitute payment 30,000,000 in the calculation of the Defendant’s day of August 30, 2006.

4. Obligations to return down payment and intermediate payment upon breach of a contract;

A. The defendant's non-performance of contract

The plaintiff continued to verify the progress of construction after the payment of the above contract amount, but the commencement of construction has been delayed, and the plaintiff will comply with this.

In addition, even though the defendant did not commence construction work up to the present time when the contract was concluded that the sublime's delay is being delayed or during the loan examination will be replaced by the nese letter letter, and that the construction work will be commenced at least in the year, it was urgent for the plaintiff to avoid it without clearly announcing the position to the plaintiff every time.

However, it can be said that there is room for dispute as to whether the contract in this case is a non-performance of a contractual obligation in that the contract in this case is promoted in an uncertain state of non-approval for admission and the time for each stage of the contract is not explicitly specified, but it is stipulated that "it is necessary to take measures to refund the full amount of the down payment that has not been commenced within the year," and "it is not raised any objection as to the cancellation of membership when the subscription is made in the case of a special agreement." In light of the above special agreement, it is obvious that the defendant's obligation to start construction in the year has not been performed until now, and the non-performance of such a contract contains the defendant's reasons attributable to the defendant, and therefore, it is intended to claim the cancellation of the contract and its restoration

(b) Cancellation notification;

As above, since the defendant did not continue to perform his contractual obligations on the ground of such a low ground, the plaintiff as the plaintiff is no longer reliance on the defendant.

Since it was judged that the contract cannot continue any longer, the second half of February, 2000, pursuant to the contents of Paragraph 1, etc. of the Special Agreement in this case, the defendant made an oral expression against the defendant that "the commencement of construction work has not been in progress and the grace period for one month has been over, and the contract deposit is to be cancelled and repaid in full," but the defendant failed to return the next half of February, 2017, because the commencement of construction work is scheduled to be early, and the return of the next half of the construction work has not been made. Accordingly, on February 23, 2017, the plaintiff sent the name to the defendant on February 24, 2017, which was confirmed to have been reached as soon as the defendant was delivered to the defendant on February 24, 2017 (see subparagraph 3 evidence 1, content 2, and delivery details).

Although the defendant was notified of the plaintiff's cancellation of the contract and the return of the down payment, etc. within one week, the defendant changed to the effect that the loan will be completed within three months, and the procedure for the settlement of the balance and transfer of ownership with the landowner will be completed, and the construction will be commenced only until that time.

However, the plaintiff, however, judged that the defendant who has continued to repeat the same words as above and drawn up between the time has no longer been trusted, and that the same situation as granting time according to the defendant's position has been repeated. Above all, considering the defendant's above response, the defendant was judged to receive the notification of cancellation of the contract and to have no intention to return the down payment, etc., which led to the defendant's filing of the lawsuit in this case.

5. Scope of the return of down payment and intermediate payment.

위 계약해제를 내용으로 하는 내용증밍이 피고에게 2017. 2. 24. 송달된 으로써 이 사건 매매게약은 해제되었고, 이에 따른 원상회복으로서, 피고는 원고에게 2016. 8. 8. 8,000,000원, 2016. 9. 12. 8,500,000원, 그리고원고 명의로 발생시켜 피고 조합에 지급된 중도금 대출 원금 13,500,000원을 합한 30,000,000윈과 발코니 확장 공사 계약 제4조에 따른 위약금2)으로서 3,000,000윈 도합 33,000,000윈에 더하여, 위 각 금액 중 계약금3)에 대하여 그 금액을 받은 각각의 날로부터 내용증명이 송달된 이후 1주일째인 2017. 3. 3.(이행지체발생 전일)까지 연 5%의 비율로 계산한 벆정이사 합계액을 가산한 총계 33,429,380윈을 원고에게 반환하여야 할것입니다.

O The basis for calculating statutory interest:

X X (208/365 corresponding to 208 days from August 8, 2016 to March 3, 2017) X 0.05 + X (173/365 corresponding to 173 days from September 12, 2016 to March 3, 2017) X 0.05 = 429,380 won (ging less than 10 won)

6. Conclusion

In light of the above points, the defendant shall be liable to the plaintiff for breach of the contract. Thus, the defendant shall be liable to the plaintiff for the principal of the down payment of KRW 16,50,000 as well as the statutory interest of KRW 429,380 as well as KRW 13,50,00 as well as the intermediate payment of KRW 30,429,380 as well as penalty of KRW 33,429,380 as well as penalty of KRW 33,429,380 as mentioned in the purport of the claim. In addition, the defendant shall file the lawsuit of this case seeking the amount of money under the purport of the claim.

1) The name of the transfer passbook was D, the spouse of the Plaintiff, and through the passbook of the Dong, paid the Defendant 1.2 amount.

2) In the event that this contract is terminated on the grounds of Article 4(2)(A) of the Separate Contract for Documentary Evidence No. 1 (B)(A), “A” shall pay to “B (Plaintiff)” the amount equivalent to the down payment of the total amount supplied. The Defendant’s fault stated as follows. Since the mother contract of this case is terminated and the separate contract (this contract) is automatically cancelled, it is subject to the cancellation of the incidental contract. Under the same Article, the Defendant is obliged to pay the down payment of KRW 8.5 million of the total down payment to the Plaintiff.

3) The contents of Article 3 of the Special Agreement on A’s Certificate No. 1 are “interest on personal credit loans 100% of the amount to be paid in the contract shall be paid by the housing association B, and accordingly, interest on the principal of part payments