[Defendant-Appellant] District Housing Association and two others (Attorneys Go Jong-jin et al., Counsel for defendant-appellant)

Defendant (Attorney Dog-won, Counsel for the defendant-appellant)

December 2, 2011

1. The Defendant (Counterclaim) shall deliver to the Plaintiff (Counterclaim Defendant) the part of the ship’s 24.48 square meters and the part of the ship’s 25.44 square meters, which successively connects each point of 53.50 square meters of the attached table among the buildings listed in the attached table No. 2 of the real estate list No. 1, 2, 3, 4, and 1, and the part of the attached table No. 5, 6, 7, 12, and 5, and each point of 36.48 square meters, 7, 8, 11, 12, and 7, which successively connects each point of 36.48 square meters, 24.48 square meters, and 8, 9, 10, 11, and 8.

2. The Defendant-Counterclaim Plaintiff’s primary counterclaim is dismissed.

3. The Plaintiff (Counterclaim Defendant) paid KRW 76,446,786 to the Defendant (Counterclaim Plaintiff) simultaneously with the delivery of each of the parts described in paragraph (1) from the Defendant (Counterclaim Plaintiff).

4. The costs of lawsuit are assessed against the Defendant (Counterclaim Plaintiff) and 1/2 of the costs of lawsuit are assessed against the Plaintiff (Counterclaim Defendant) and the remainder is assessed against the Defendant (Counterclaim Plaintiff).

5. The above paragraphs 1 and 3 can be provisionally executed.

1. Purport of the principal claim

It is as stated in paragraph (1) of this Article.

2. Claim for a counterclaim

The primary purport of the claim is that the plaintiff (Counterclaim defendant, hereinafter "the plaintiff") implements the procedure for the registration of ownership transfer on June 16, 2005 with respect to each one-third share of the buildings listed in the separate sheet No. 2 of the real estate list to the defendant (Counterclaim plaintiff, hereinafter "the defendant").

Preliminary claims: It is so stated in paragraph (3) of this Article.

1. Basic facts

A. On May 28, 2002, the Plaintiffs: (a) sold the buildings listed in the attached Table 1 (hereinafter “instant building”) to Ledrid Consulting Co., Ltd. (hereinafter “ Ledrid Consulting”) in total at KRW 1.132 million; and (b) sold the sale price for each sectional ownership to the relevant parts as stated in the attached Table 1.

B. On January 20, 2003, Red Consulting Co., Ltd. sold to Nonparty 1 a building listed in the attached Table 2 of the real estate list (hereinafter “instant underground shopping mall”) among the instant building to KRW 245 million, and Nonparty 1 sold it to the Defendant on December 17, 2003 at KRW 490 million. At the time of the purchase, the Defendant paid KRW 3587.5 million to Nonparty 1 at the time of the purchase, while Nonparty 1 received the obligation to pay the remainder of Red Consulting Co., Ltd., and paid KRW 130,1250,000 to Red Co., Ltd. on around 204.

C. On October 26, 2004, the plaintiffs completed registration of preservation of ownership of 1/3 shares as to the underground shopping districts of this case, and on the other hand, on June 16, 2005, the defendant prepared a sales contract for the purchase of the instant underground shopping districts of 200,19,600 won directly from the Ledrid consulting, and currently occupies the instant underground shopping districts of this case.

D. Non-party 2 and non-party 5, who purchased the sectional ownership of 7 stores of the first floor among the instant buildings from Leddd Co., Ltd., filed a lawsuit against the plaintiffs and Led Co., Ltd. on March 7, 2006 against Suwon District Court No. 2006Gahap4215 on March 7, 2006 against the plaintiffs and Led Co., Ltd.: ① to request the plaintiffs to implement the procedure of ownership transfer registration in their own name with respect to the instant sectional ownership; ② to request the plaintiffs to implement the procedure of ownership transfer registration in the name of Led Co., Ltd.; and to seek ownership transfer registration procedure against Led Co., Ltd. in their own name

E. In the above case, the plaintiffs and the non-party 2 and the non-party 5 resolved voluntarily on March 9, 2007 to the effect that "the plaintiff shall perform the registration of ownership transfer with respect to the above seven stores". On March 23, 2007, the above court rendered a judgment to the effect that Ledrid consulting shall perform the registration of ownership transfer with respect to each of the above seven stores under the name of the non-party 2 and the non-party 5, and the above judgment was finalized on April 18, 2007.

(f) Ledrid consulting is currently insolvent.

【Ground of recognition】 The fact that there is no dispute, Gap evidence 1, 2, Eul evidence 1 through 6, Eul evidence 10, 11 (including virtual numbers, hereinafter the same as the same), the purport of the whole pleadings and arguments

2. The assertion and judgment

A. Determination on the main claim

According to the above facts of recognition, the defendant as the possessor is obligated to deliver it to the plaintiffs, who are co-owners of the underground shopping families of this case, unless there are special circumstances.

B. Judgment on the counterclaim claim and the defendant's defense

(1) Judgment on the primary claim and defense during the counterclaim

The defendant, on June 16, 2005, purchased the underground shopping districts of this case from Ledrid Consulting with the authority to sell all parts of the building of this case by concluding a sales agency contract with the plaintiffs, and therefore, the plaintiffs are obligated to implement the procedure for ownership transfer registration for shares of 1/3 of the underground shopping districts of this case. Thus, the plaintiffs cannot accept the plaintiff's request for delivery, and at the same time, they seek the implementation of each procedure for ownership transfer registration for shares of 1/3 as counter-claim.

However, as acknowledged earlier, the plaintiffs only sold the underground prices of this case to Ledrid Consulting, and the entries in Eul evidence Nos. 9 and Eul Nos. 13 through 17 alone are not sufficient to conclude that Ledrid Consulting granted all the sales authority to the building of this case, or that the defendant directly sold the underground prices of this case to the defendant, and there is no legal basis or evidence to acknowledge otherwise ( even according to the entries in Eul No. 15, the fact that the transfer registration of ownership has been completed in the name of the plaintiff in the name of Leddrid consulting, and in the name of each third party from Ledrid consulting, it is difficult to view that Ledrid consulting is merely the plaintiffs' sales agent, and it is reasonable to deem that Ledrid consulting was directly sold to the third party after the sale of the building of this case from the plaintiffs, and that there is no need to consider the main claim and defense during the counter-claim, and there is no reason to deem otherwise.

(2) Determination on the conjunctive claim and defense during the counterclaim

The defendant paid 942 million won to the plaintiffs, out of 1.132 billion won for the sale price of the building of this case, 94 million won for the sale price of the building of this case. 94 million won for the sale price of the building of this case was appropriated for the sale price of the building of this case in proportion to the sale price of the building of this case among the total sale price of this 94 million won. However, the defendant raised a defense of simultaneous performance that the plaintiffs cannot respond to the plaintiff's request for delivery before refund of 76,446,786 won calculated in subrogation of ledroid consulting, which is in insolvent condition, and at the same time, sought payment of the above money

In addition, in case where the obligor bears several obligations to the same obligee for the same kind of obligation, and the parties did not designate the obligation to be appropriated for the repayment, in accordance with Article 477 of the Civil Act. In particular, according to Article 477 subparagraph 4 of the Civil Act, if the order of statutory appropriation of obligation is equal under Article 477 subparagraph 4 of the Civil Act, it shall be appropriated for the repayment of each obligation in proportion to the amount of the corresponding obligation. Unlike the statutory appropriation of obligation according to the above proportional appropriation of obligation, unlike the above proportional appropriation of obligation, a person who claims that the above obligation has been appropriated for the full amount of the corresponding obligation shall be liable to assert and prove the fact in preference to the legal effect which is more favorable to himself by the court appropriation of obligation, the designation of the appropriation of obligation, or the agreement between the parties on the appropriation of obligation, or the fact that the pertinent obligation has been appropriated for the full amount of the corresponding obligation in preference to the statutory appropriation of obligation shall be appropriated in proportion to the amount of each obligation (see Supreme Court Decision 2003Da27379, Feb. 29, 20197, 27, 2019).

However, according to the evidence Nos. 3 and 15 of this case's evidence Nos. 4, 500,000 won out of the purchase price of the building of this case to the plaintiffs, 942 million won out of 1.132 million won of the purchase price of the building of this case (it cannot be readily concluded that e.g., item No. 5 of the above amount is not sufficient to conclude that e., e., the purchase price was paid to the plaintiffs in excess of the above amount, and there is no evidence to recognize otherwise). Since the plaintiffs can be recognized that e.g., e., (1 omitted) to e., (2) to e.g., (2) to e., (3) to e., the above e., e., 4.g., 500,000 won of the above divided ownership e., e., 706,740,7500 won of the sales price of this case's e.

On the other hand, it is reasonable to view that the plaintiffs sought delivery of the above amount to the defendant who purchased the underground prices of this case from the Ledrid Consulting for the unpaid payment of the sale price of Ledrid consulting, and that the Ledrid consulting also does not take any legal measures until six years have passed since the completion of the registration of ownership preservation on the underground prices of this case, and that the sale contract between the plaintiffs and Ledrid consulting on the underground prices of this case has already been terminated due to the cancellation or termination of agreement due to the refusal of performance. Therefore, the plaintiffs are obligated to return the above amount to Ledrid consulting upon the performance of the duty to restore, and the defendant can seek return of the above amount to the plaintiff on behalf of the defendant. Accordingly, the plaintiffs have the obligation to pay the above amount to the defendant the above amount to 76,46,46,786 won as the defendant's conjunctive consulting at the time of receiving the above amount from the defendant and the defendant's preliminary claim is reasonable.

However, the obligation to return the above obligation to the plaintiffs to Leddrid Consulting is concurrently performed with the obligation to deliver the above underground price to the plaintiffs of Ledrid Consulting. However, since the defendant's obligation to deliver the above underground price to the plaintiffs of this case is not recognized as a quid pro quo relationship, the defendant's defense of simultaneous performance as to the claim against the plaintiff of this case is without merit.

3. Conclusion

Therefore, the defendant has a duty to deliver the instant underground shopping mall to the plaintiffs, and the plaintiffs have a duty to pay KRW 76,446,786 to the defendant simultaneously with the delivery of the instant underground shopping mall from the defendant. Thus, the plaintiffs' claims in the main lawsuit are justified, and they are dismissed as the defendant's primary counterclaim is groundless, and the defendant's primary counterclaim claim is dismissed as it is reasonable, and it is so decided as per Disposition by the defendant's preliminary counterclaim.

[Attachment]

Judges Kim Young-chul