2013 Gohap 31324 Damage, Claim

Korea New Co., Ltd.

1. A district housing redevelopment and rearrangement project association;

2. B

3. C.

4. D;

5. E.

6. F;

7. G.

8. H;

April 15, 2014

April 29, 2014

1. The Defendants jointly and severally pay to the Plaintiff 1,890,978,135 won and the amount calculated by each of 20% per annum from November 9, 2013 to from May 8, 2013; Defendant C, D, and F from May 7, 2013 to from May 7, 2013; Defendant G from May 24, 2013 to April 29, 2014 to the date of full payment; Defendant H paid 5% per annum from May 9, 2013 to April 29, 2014 to the date of full payment.

2. The plaintiff's remaining claims against the defendants are all dismissed.

3. Of the costs of lawsuit, 10% is borne by the Plaintiff, and the remainder is borne by the Defendants.

4. Paragraph 1 can be provisionally executed.

The defendants jointly and severally pay to the plaintiff 1,922,176,675 won with 20% interest per annum from the day following the delivery date of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

가. 피고 A구역주택재개발정비사업조합(이하 '피고 조합'이라고만 한다)은 인천광역시 부평구 | 일대에서 주택재개발사업(이하 '이 사건 재개발사업'이라 한다)을 시행하기 위하여 설립된 조합이다.

B. Around October 2008, the Defendant Cooperative conducted a tender to select the instant redevelopment project, and the Plaintiff was selected as the contractor from the extraordinary meeting of the Defendant Cooperative through the bid process. Article 15 of the “tender Selection Guidelines” issued to the tender participants, including the Plaintiff, etc. under the name of the Defendant Cooperative stated that “any costs related to the instant redevelopment project shall be borne by the successful bidder,” and the Plaintiff paid KRW 31,198,540 to the Defendant Cooperative on December 31, 2008 pursuant to the above provision. The Plaintiff and the Defendant Cooperative concluded a contract amount of the instant redevelopment project of KRW 38,724,023,00 (hereinafter “the instant construction contract”). At the time of signing and sealing the instant construction contract as a joint and several surety, the remainder of the Defendants Cooperative, other than the Defendant Cooperative, signed and sealed the instant construction contract.

Article 3 (Status of Parties and Principles of Business)

(3) A (the defendant association, the same shall apply hereinafter) shall consult with B (the plaintiff and the same shall apply hereinafter) when it intends to confirm and change a business plan, project implementation, etc.

Article 4 (Method of Implementing Projects)

(1) A shall provide Party B with land necessary for a housing redevelopment improvement project for Zone A located in Bupyeong-gu Incheon Metropolitan City, Bupyeong-gu, one of which is owned by Party A and its members, and pay construction contract amount, and Party B shall construct construction facilities in accordance with design documents and written contracts approved by the head of a local government on the land provided by Party A. In such cases, land to be provided to Party B means land in a state that does not impede the commencement of construction works of Party B, securing ownership of land and right to use site

(2) A project promotion expenses and relocation expenses for members A may be leased to members of A and B, and in such cases, A and members of A shall repay the principal and interest on loans, such as the project promotion expenses and the principal and interest on moving expenses (hereinafter referred to as "interest and interest on loans"), borrowed from B pursuant to the provisions of Articles 40 and 41.

Article 5 (Financial Resources for Business) (1) A shall provide the land referred to in Article 4 (1).

(2) A shall perform the following subparagraphs in constructing building facilities referred to in Article 4 (1), lending project promotion expenses, etc., and performing the relevant construction works. In order to guarantee the performance of contractual obligations entered into with Article 10 (Contract Performance Guarantee) A, A shall act on behalf of the members of A, and B shall act on behalf of the members of the association, and on behalf of the construction guarantee certificate as provided for in the Act on the Maintenance and Improvement of Urban Areas and

(2) Where a joint and several sureties A loses his/her qualification as a guarantor due to death, bankruptcy, etc., he/she shall be replaced by another joint and several sureties, and the replaced joint and several

(3) A joint and several sureties shall be jointly and severally liable for the obligations arising from a non-performance of contractual obligations by A.

Article 11 (Supervision over Authorization and Permission Affairs)

(1) All business affairs such as authorization, permission, etc. related to the relevant business shall be managed by A, and B shall cooperate therewith.

(2) Where any change in a project implementation plan or any change in design under related Acts and subordinate statutes, such as the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Building Act and City Ordinance, it shall be resolved as the responsibility of A, and expenses incurred therein shall

Article 15 (Project Promotion Expenses)

1. The project promotion expenses under this contract shall be as follows, and Eul shall lend the project promotion expenses to Gap in accordance with the terms and conditions of the lending separately determined, and Eul shall consult in advance with Eul about the contents and amount thereof (not later than each subparagraph is omitted). Article 18 (Free Subsidization of the Operation Expenses of Cooperatives) Section 18 (Support of the Operation Expenses of Cooperatives) Section 18 (Free Subsidization of the Operation Expenses of Cooperatives) Section 18 shall be provided to Gap at least seven million won per month from the date of the execution of this contract until three months after moving into a cooperative, and the payment date of

○ Article 20 (Suspension, etc. of Lending Business Promotion Expenses)

(1) Where a member of a Party A or a member of a Party A fails to complete any project within the time limit fixed for the schedule of all the projects under Articles 13, 14, and 23, or delays in the payment of the construction amount, Eul shall notify Party A of the implementation thereof by fixing a period not exceeding one month, and where implementation has not been completed even after the said time limit expires, the lending of all the expenses

Article 35 (Cancellation and Termination of Contracts)

(2) If it is found impossible to continue to perform a project due to any of the following causes, Eul may suspend the project and cancel or terminate all or part of this contract, if the project is not performed within the said period after giving written notice by setting a deadline for performing the contract for 30 days. In such cases, Gap shall settle all loans borrowed from Eul, the amount of construction works completed, etc., without delay:

1. Where the construction period has been delayed by at least 1/3 due to a cause attributable to the Party A;

2. Where the continued performance of construction works is objectively deemed impossible because A fails to perform this contract without justifiable grounds or fails to comply with the consultation prescribed in the terms of the contract;

3. Other cases where Party A is objectively deemed unable to achieve the agreed purpose in violation of the contract terms and conditions, and where a contract is terminated under paragraphs (1) and (2), Party A and B shall, without delay, settle the construction amount, loan, etc. of completed portion.

(4) Where any loss occurs due to the cancellation or termination of a contract under paragraphs (1) and (2), the other party may claim compensation therefor from the other party.

Article 54 (Effect of Contract)

② This contract does not affect the change of the representative of Gap and the executive officers of the Eul association and the change of Eul. (d) At the request of the defendant association, the plaintiff unilaterally lent KRW 1,605,978,135 to the defendant association from January 15, 2009 to November 2, 2010, and ② the defendant association's non-disputation rate of 231,000,000 for the operating expenses of the association from January 23, 2009 to February 27, 2012 to the defendant association's non-disputation rate of 20,000, and the plaintiff's non-disputation rate of 54,00,000,000 from September 25, 200 to February 27, 2012 to the defendant association's cancellation of the association's association's establishment approval.

F. Around July 2012, the Plaintiff notified the Defendant Union of the rescission of the instant construction contract on the ground that the instant construction contract fell into nonperformance due to a cause attributable to the Defendant Union’s side.

G. Meanwhile, the articles of incorporation of the Defendant Union provide the following provisions:

○ Article 15

(2) The executives of an association shall be appointed at a general meeting with the attendance of the majority of the members and with the consent of the majority of the members present: Provided, That where a vacancy occurs during the term of office, the board of representatives among the members shall be appointed as a substitute. The executives whose term of office expires

Article 18

(2) Where an executive voluntarily resigns or is dismissed, a new executive shall be elected without delay. In such cases, the qualifications of the newly appointed executive shall take effect to the external effect upon filing an authorization for the establishment of the Bupyeong-gu Office and the change of the executive of the corporation.

(4) When it is deemed inappropriate for an officer who resigns or is dismissed to perform his/her duties until his/her new executive is appointed or dismissed, he/she may suspend the performance of his/her duties in accordance with a resolution of the board of directors or the board of representatives, and the president of the partnership may temporarily appoint a person to perform the duties of the executive officer: Provided, That where the president of the partnership resigns

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 38 (including each number), Eul evidence 1, the purport of the whole pleadings

2. Determination as to the claim against the defendant union

A. Determination on the main defense of this case

Defendant Union asserts that the part of the lawsuit in this case against Defendant Union is unlawful, since the J, which the Plaintiff designated as the representative of Defendant Union, resigns from the president of Defendant Union, is not the representative of Defendant Union.

According to Gap evidence Nos. 1 and Eul evidence Nos. 1 through 4, it is recognized that (i) at the time of the instant construction contract, the head of the Defendant Union was K, (ii) at the time of the instant construction contract, the Defendant Union was elected as the head of the new association, and (iii) on May 15, 2012, the Plaintiff was authorized to change the establishment of the head of the Bupyeong-gu Incheon Metropolitan City deputy Office with respect to the change of the head of the association; and (iv) on September 2012, the J expressed its intent to resign from the head of the association to the members through the newsletter of the Defendant Union; (iv) but the head of the association was not newly elected; and (v) the acting person was not appointed by the auditor. In addition, considering the articles of association of the Defendant Union as seen earlier, it is recognized that the Defendant Union still continued to perform its duties until his successor was appointed; and (v) unless the auditor did not temporarily designate the head of the association as the representative of the Defendant Union.

B. Judgment on the merits

1) The cited part

According to the above facts, the contract for the construction of this case was lawfully rescinded due to the reasons attributable to the defendant association. Pursuant to Article 35 of the contract for the construction of this case, the defendant association is obligated to pay to the plaintiff 1,605,978,135 won for the project promotion expenses of this case, ② the sum of KRW 231,00,000,000 paid to the plaintiff and the additional union operation expenses of KRW 1,890,978,135 for the plaintiff, and as the plaintiff seeks, the amount of damages for delay calculated at the rate of 20% per annum from November 9, 2013 to April 29, 2014, which is the day following the date of cancellation of the contract for the construction of this case, which is the day of delivery of a copy of the complaint of this case after the date of cancellation of the contract for the construction of this case.

2) The dismissed part

The Plaintiff asserts that 31,198,540 won, which the Plaintiff paid to the Defendant as stated in Paragraph 1(b), is also included in the scope of compensation for damages arising from the cancellation of the instant construction contract. However, if the Plaintiff and the Defendant are to be selected as a contractor, the said money constitutes a kind of investment cost incurred by the Plaintiff to be selected as a contractor by themselves, and constitutes a kind of investment cost incurred by the Plaintiff in order to pay extraordinary expenses, and since it was not paid according to the instant construction contract after the conclusion of the instant construction contract, it is difficult to view that it is included in the scope of compensation for damages arising from the cancellation of the instant construction contract. Accordingly,

3. Determination as to the claim against Defendant H

Defendant H’s signature and seal on the column for joint and several sureties of the instant construction contract as an auditor of the Defendant Union at the time of the instant construction contract, and the fact that Defendant H’s joint and several sureties’s joint and several sureties’s payment amount to the Plaintiff due to the cancellation of the instant construction contract is as seen earlier. In light of the language of the instant construction contract, the scope of Defendant H’s joint and several sureties’s joint and several sureties’s payment under the terms of the instant construction contract includes the Defendant Cooperative’s business promotion expenses and the obligation to settle its operating expenses. As Defendant H jointly and severally and severally with the Plaintiff, Defendant H is liable to pay damages for delay calculated from May 9, 2013, the following day after the date of cancellation of the instant construction contract, which is the date of delivery of the copy of the instant complaint, to the date of delivery of the instant construction contract, to April 29, 2014, which is the date of the instant judgment, to the date of completion of the contract.

As to this, Defendant H had a seal affixed to the Defendant Union, but was unaware of the fact that it was used as a joint and several surety for the instant construction contract, and that the Plaintiff’s claim against oneself was dismissed from the position of auditor on January 19, 2010, and thus, the Plaintiff’s claim against oneself is groundless. In the preparation of the joint and several surety for the instant construction contract, there is no evidence to deem that the document was forged against Defendant H’s will. Even if Defendant H resigned resigned from the position of auditor, so long as the newly appointed auditor resigned from the position of auditor did not succeed to the status of the joint and several surety for the Plaintiff, the mere fact that Defendant H resigned resigned from the position of auditor for the instant construction contract cannot be deemed to have extinguished, and thus, Defendant H’s above assertion cannot be accepted.

3. Determination as to the claim against Defendant B, C, D, E, F, and G (hereinafter “Defendant B, etc.”)

A. Determination on the cause of the claim

Defendant B, etc., as its executive officers at the time of the contract for the instant construction work, signed and sealed the amount to be paid by the Defendant Union to the joint guarantor column of the Defendant Union. The fact that the amount to be paid by the Defendant Union to the Plaintiff due to the rescission of the contract for the instant construction work is equal as seen earlier. The scope of joint and several surety by the Defendant B, etc. under the terms and conditions of the instant contract for construction work also includes the duty to restore the amount to the Defendant Union due to the cancellation of the contract for construction work. As the Plaintiff seeks, Defendant B, and E, the following day after the date of delivery of the complaint of this case, which was after the date of cancellation of the contract for the instant construction work, shall be from May 8, 2013; Defendant C, D, and F, from May 7, 2013 to May 24, 2013; Defendant G, from May 24, 2013 to 200% of the total annual damages for delay as prescribed by the Civil Act.

B. Determination as to Defendant B, etc.’s assertion

1) As to the assertion that the maximum amount of the debt is not effective because it does not specify it

A) The assertion

Article 6 (1) of the Act on Special Measures for the Protection of Suretyies on the Construction Contract of this case constitutes "a debt arising from a continuous transaction contract or any other specific transaction between a creditor and a principal debtor or from a certain kind of transaction, or a debt arising continuously from a specific cause." Article 6 (2) of the same Act provides that a guarantee contract for the above debt shall not be effective unless the maximum amount is specified in writing. Thus, the joint and several guarantee contract of this case between the plaintiff and the defendants shall

B) Determination

In the construction contract of this case, the Plaintiff’s obligation under the construction contract of this case includes the content that the Defendant association will lend the business promotion expenses and the operating expenses of the association to the Defendant association in a successive manner according to its necessity. However, the construction contract of this case is determined as the construction amount, and the project promotion expenses and the operating expenses of the association are expected to be the approximate amount, and the scope of the Defendants’ joint and several liability obligations is anticipated. The contract of this case is for the Plaintiff to execute the redevelopment project of this case and the Defendant association to implement the redevelopment project of this case. Thus, it is difficult to view the Defendant association’s obligation under the construction contract of this case as falling under “a debt arising continuously from a specific transaction contract or any other specific transaction transaction between the creditor and the principal debtor, or due to a specific cause.” Accordingly, the assertion of Defendant B, etc. based on this premise is unacceptable.

2) As to the assertion that the guarantee period has expired

A) The assertion

Article 7 (1) of the Act on Special Measures for the Protection of Guarantor provides that "if there is no term of guarantee, such term of guarantee shall be deemed three years". The construction contract of this case does not state the guarantee period of the Defendants, and it has expired three years from December 30, 2008, which is the date of guarantee, and the Defendants' joint and several liability has ceased to exist.

B) Determination

According to Gap evidence No. 1, it is acknowledged that "the validity of this contract shall be effective from the date of conclusion of the contract to the date of completion of the project." In full view of the above facts, it is difficult to view that there was no guarantee agreement since the joint and several surety period of the defendant Eul et al., the joint and several surety period of the defendant Eul et al., which is the joint and several surety of the defendant union, was specified until the completion or dissolution of the redevelopment project of this case.

We cannot accept the above assertion.

3) As to the assertion that joint and several liability has ceased to exist due to resignation

A) The assertion

Since around September 17, 2012, before the Plaintiff expressed his intent to cancel the instant construction contract, the Plaintiff notified the Plaintiff that “the Defendant resigned from office as an executive officer of the Defendant Union, and the replacement director and the auditor are appointed, so no longer will be held liable for joint and several liability under the instant construction contract.” Hence, there is no joint and several liability as to the obligation to settle the project cost, etc. of the Defendant Union incurred by the Plaintiff’s declaration of intent to cancel the instant construction contract.

B) Determination

The Defendants: (1) Where a director, etc. of a company provides joint and several sureties with a debt incurred by a continuous transaction with a third party of the company, he/she shall become a joint and several sureties for the company’s debt inevitably arising from a continuous transaction of the company due to his/her status as a director; and and (2) where the other party to the company

The legal principle that the limitation of liability is limited solely on the debt incurred while in office (see, e.g., Supreme Court Decision 98Da34911, Dec. 22, 1998) and (2) where a person who has become a guarantor for the company's debt arising from continuous transactions between the company and a third party inevitably leaves the position of director after leaving the position of director, it constitutes a case where the situation at the time of the establishment of the guarantee contract is significantly changed, and thus, the guarantee contract can be terminated on this ground (see, e.g., Supreme Court Decision 98Da11826, Jun. 26, 1998). In this case, Defendant B, etc. can terminate the joint and several guarantee contract with the Plaintiff, or the liability limit is limited solely on the debt incurred during the employment of Defendant B, etc., but it is difficult to view the joint and several guarantee contract as a continuous joint and several guarantee contract between the Defendant union and the third party. It is difficult to view that the Plaintiff newly obtained the new joint and several guarantee contract with the Plaintiff.

4) As to other allegations

Defendant B, etc. asserted that the Plaintiff’s obligation to settle the project cost and operating expenses of the instant construction project that the Plaintiff lent to the Defendant Cooperative is not the obligation under the instant construction project contract, or is not included in the scope of the Defendants’ joint and several liability, or that the contract for the instant construction project was cancelled due to the cause attributable to the Defendant Cooperative. However, according to the above facts, the instant construction project contract was omitted due to the cause attributable to the Defendant Cooperative (the Plaintiff’s suspension of payment prior to the rescission of the instant construction contract is not a dispute between the parties, but it appears to be due to Article 20 of the instant construction contract, and it appears to have been due to the fact that the Plaintiff ceased to pay the operating expenses of the instant association before the rescission of the instant construction contract, and it is reasonable to deem that the liability without the instant redevelopment project was not properly carried out due to the failure to consolidate the intent of the association members for several years, and that the Defendant B, etc. was jointly and severally liable for the settlement of the project promotion cost and the settlement of the

Therefore, Defendant B, etc., jointly and severally with the Defendant Cooperatives, as the Plaintiff sought, have a duty to jointly and severally pay to the Plaintiff 1,890,978,135 won as well as damages for delay calculated at the rate of 5% per annum under the Civil Act from May 9, 2013 to April 29, 2014, which is the date following the date of service of a copy of the complaint of this case, which is after the date of cancellation of the construction contract of this case, to the day following the date of delivery of the copy of the complaint of this case.

4. Conclusion

Therefore, the plaintiff's claim against the defendants is justified within the scope of the above recognition, and all of the remaining claims against the defendants are dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge and assistant judges;

Judges branch line

Judges authorized-type Judge