2018 Gohap100390 Services Costs

A Stock Company

Law Firm Jin-jin, Counsel for the defendant-appellant

Attorney Lee Gyeong-young, Counsel for the plaintiff-appellant

B Regional Housing Association

Law Firm Tae-ho et al., Counsel for defendant-appellant

Attorney Kim Young-soo

July 12, 2019

September 6, 2019

1. The defendant shall pay to the plaintiff 1,034,257,723 won and 556,820,000 won with 5% per annum from November 29, 2017 to September 6, 2019; 47,437,723 won with 5% per annum from the following day to February 9, 2018; 15% per annum from the following day to May 31, 2019; and 12% per annum from June 1, 2019 to the date of full payment.

2. The plaintiff's remaining claims are dismissed.

3. One-fourth of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

With respect to the Plaintiff KRW 1,386,257,723 and KRW 908,820,00 among them, the Defendant shall pay 5% interest per annum from April 14, 2017 to the service date of a duplicate of the complaint of this case, and 15% interest per annum from the next day to the day of full payment, with respect to KRW 477,437,723 interest per annum from April 27, 2017 to the service date of a duplicate of the complaint of this case, and 5% interest per annum from the next day to the day of full payment.

1. Basic facts

A. The relationship between the Parties

1) The Defendant is a regional housing association established pursuant to the Housing Act in order to promote a housing construction project (hereinafter referred to as “instant project”). The Defendant, after holding an inaugural general meeting on March 18, 2015 through the stages of the committee of promoters, held an authorization to establish an association on July 1, 2015 (hereinafter referred to as “Defendant” in total without distinction before and after the authorization to establish an association was granted on July 1, 2015, and if it is necessary to indicate the stages separately, it is designated as “Defendant (association)” and “Defendant (Promotion Committee)”.

2) The Plaintiff is a company established for the purpose of housing construction business, sales agency business, consulting, and engineering service business, and D is the Plaintiff’s representative (in-house director).

(b) Conclusion and progress of a service agency contract;

1) Around January 2015, Defendant (Promotion Committee) concluded a service agency contract with the Plaintiff (hereinafter “instant agency contract”). The main contents of the relevant contract are as follows.

In order to facilitate the division of the business affairs (Article 4), each party shall share and cooperate with one another as follows: (a) the establishment of a regional housing association; (b) the opening and management of a general assembly for the selection of a contractor and an agent; (c) the opening and management of the general assembly for the recruitment, management, and sale of association members (in the case of matters that may affect sale, such as the method of sale, advertisement, public relations, and establishment of sale terms and conditions), and (d) removal and removal of land-purchase costs and the acquisition of land ownership (including the removal of restricted property rights) and other obstacles; (f) consultation on rental business for the approval of the project plan and other acquisition of authorization and permission (including the alteration of the business), all kinds of documents (including various written consents, various certificates, etc.) required for the promotion of the project; (d) the members of the association; (e) the members of the association and the part payment business related to the construction of the urban planning facilities; (e) all the expenses incurred in the performance of the project (such as various charges, charges, taxes, public charges, public charges, financial charges, financial disposal expenses, and financial treatment expenses, etc.

(1) The Plaintiff’s business activities are conducted on behalf of the Plaintiff. A regional housing association is established on behalf of the Plaintiff. A regional housing association is established on behalf of the Plaintiff. A general assembly and management is held on behalf of the Plaintiff. A general assembly is held on behalf of the Plaintiff. A general assembly is provided on behalf of the Defendant and the Plaintiff (in the case of a matter that may affect allotment, such as the method of sale, advertisement, publicity, and establishment of a sale condition, it shall be conducted by agreement between the Defendant and the Plaintiff) with respect to the recruitment of members, management, and sale of land. An act on behalf of the Defendant and the Plaintiff (including the cancellation of a limited real right), an act on behalf of the Plaintiff, such as removal and removal of land (including the removal of restricted real right), an act on behalf of the Plaintiff as well as all other documents (including various written consents, various certificates, etc.) necessary for the promotion of the project. The payment method of the Plaintiff’s land use on behalf of the Plaintiff and the buyer, the contract amount of intermediate payment related to the Plaintiff’s construction and installation of support model(50) after completion of the project.

A. 30%: 60% of the intermediate payment (time of commencement): 10% of the remainder (time of commencement): 10% of the service charges the Defendant pays to the Plaintiff in cash, and the payment of service charges shall be made immediately within 15 days from the date the Defendant claims the Plaintiff according to the schedule of each phase. (1) The Defendant may request the Plaintiff to lend and collect ○○ Fund (Article 9) funds related to the business, and the said request may be lent if the Plaintiff considers it necessary for the smooth performance of the business. (2) The time of collection of the loan invested by the Plaintiff is the time of the Plaintiff’s request for return, and if the loan is not collected, the expenses of interest on the land-to-land loan interest rate shall be paid to the Plaintiff as of the date the request for return is made.

2) On March 18, 2015, at its inaugural general meeting held on March 18, 2015, the Defendant resolved to ratification the duties (including contracts) performed by the promotion committee prior to its establishment.

3) The Plaintiff performed the service under the above contract, and the Defendant obtained the approval of the project plan from the Asan market on October 26, 2016, and received the certificate of completion of construction work on April 14, 2017.

4) The number of households of the project in question is 153m (51m). The number of households in question is 153m (51m). Other contracts and expenditures

1) On January 19, 2015, the Defendant (Promotion Committee) entered into a contract on the recruitment of cooperative members with E Co., Ltd. (hereinafter referred to as “E”). On behalf of the Defendant, E entered into a contract on the recruitment of cooperative members and an advertising service for the recruitment of cooperative members on behalf of the Defendant (hereinafter referred to as “instant recruitment service contract”). The Defendant paid E KRW 1,036,750,000 at the above service cost.

2) On January 15, 2015, a model voucher E (including value-added tax) rental fee of KRW 330,000,000 (including value-added tax) and a lease period of KRW 140,000 for membership recruitment (hereinafter referred to as “the lease contract in this case”). The Defendant paid KRW 330,00,000 to E for the above rent of KRW 330,000.

D. A loan transaction between the plaintiffs and the defendant 1) The plaintiff loaned money as stated in the attached Form 1 to the defendant by setting the interest rate of 5% per annum from December 12, 2014 to December 19, 2016.

2) Meanwhile, from March 12, 2015, to April 26, 2017, the Defendant repaid the loan to the Plaintiff as indicated in the “attached Form” item, and accordingly, the principal and interest on the loan unpaid around April 26, 2017 are KRW 477,437,723.

E. Plaintiff’s request for payment of service charges and loans to the Defendant

On November 13, 2017, the Plaintiff: (a) based on content certification, the service cost and the substitute for the instant agency contract to the Defendant.

The sum of 1,396,722,00 won was claimed.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, 8, 10 (including each number, if any; hereinafter the same shall apply), Eul evidence Nos. 1 and 2, and the purport of the whole pleadings

2. Determination on the Plaintiff’s claim for service costs

A. Determination on the cause of the claim

According to the facts acknowledged earlier, the instant agency contract concluded between the Plaintiff and the Defendant (Promotion Committee) ought to be deemed valid as it is between the Defendant and the Defendant (partnership) by a resolution of ratification on March 18, 2015. Moreover, as the Plaintiff performed services under the instant agency contract, barring any special circumstance, the Defendant is obligated to pay the Plaintiff the service cost of KRW 908,820,00 (==60,000 won X 153 households X 153 households X project approval phase, including value added tax) and the delay damages therefrom.

B. Judgment on the defendant's defense

1) Determination as to the assertion of nullity of ratification

A) Summary of the Defendant’s assertion

It is true that the Defendant ratified the duties of the committee of promoters at its inaugural general meeting on March 18, 2015. However, the said committee of promoters did not have any entity before the inaugural general meeting, and ② the general meeting of promoters passed a resolution of ratification formally without properly explaining the contents of the instant agency contract, so the ratification should be null and void or cancelled on the ground of mistake of deception.

B) Determination

(1) The evidence submitted by the Defendant alone alone is insufficient to deem that there was no substance of the committee prior to the inaugural general meeting, and there is no other evidence to acknowledge it (In light of the fact that the Defendant took legal actions prior to the inaugural general meeting, such as the service contract and the conclusion of a monetary loan contract, and that the general meeting explicitly adopted a resolution to ratification the work of the committee’s “promotion committee”, it appears that the entity of the committee at the

(2) In addition, according to the evidence Nos. 5, 20, and 4, each of the evidence Nos. 5, 20, and 4, it is recognized that the conclusion of the agency contract with the plaintiff was stipulated as an object of ratification on the data of the general meeting meeting (see, e.g., evidence No. 20, hereinafter referred to as the "business of the promotion committee member"). In light of the above facts, the evidence submitted by the defendant alone is insufficient to recognize that the ratification was made without properly explaining the contents of the instant agency contract, or that there was any defect such as deception or mistake, and there is no other evidence to acknowledge it otherwise.

(3) Therefore, we cannot accept this part of the defendant's assertion.

2) Determination on the assertion of default and termination

A) Summary of the Defendant’s assertion

(1) Although the Plaintiff was able to lend interest-free loans to the Defendant for 70% intermediate payments, the Plaintiff became able to lend interest-free loans for 60% only, and the remainder intermediate payments for 10% was borne by members or the Defendant. As a result, the occupancy date of the instant project was delayed for more than two years than the scheduled occupancy date.

(2) Since this is the Plaintiff’s failure to perform its obligation, the Defendant is not obligated to pay the service cost to the Plaintiff. In addition, the Defendant terminated the instant service contract on the ground of the termination on November 20, 2017, and thus, there is no obligation to pay the service cost to the Plaintiff.

B) Determination

(1) In light of the content of the instant agency contract, it is insufficient to view that the evidence submitted by the Defendant alone to allow an intermediate payment 70% loan without interest is stipulated as the Plaintiff’s obligation under the instant agency contract, and there is no other evidence to acknowledge this. Moreover, there is no evidence to acknowledge the fact that the intermediate payment 10% was non-interest-free loan, and that the delay in the business schedule was caused by the Plaintiff’s cause attributable to the Plaintiff. Therefore, it is difficult to deem that there was the Plaintiff’s nonperformance of obligation

(2) Therefore, we cannot accept the Defendant’s assertion on the premise of the Plaintiff’s default of obligation.

3) Determination on the assertion of repayment concerning E

A) Summary of the Defendant’s assertion

In fact, the Plaintiff and E are the same companies, and the content of E’s service under the instant agency contract is included in the Plaintiff’s service under the instant agency contract. Therefore, the Defendant’s payment of KRW 1,036,750,000 to E should be deemed to be the same as the payment to the Plaintiff of the service cost under the instant agency contract.

B) Determination

In light of the following circumstances, the Defendant’s payment of service costs to E cannot be deemed the same as the payment to the Plaintiff, in light of the aforementioned facts, the aforementioned evidence, Gap’s evidence, Gap’s evidence, evidence Nos. 6, 9, 18, 24, and Eul’s evidence Nos. 6 and 7. Therefore, the Defendant’s assertion on this part is rejected.

(1) The Defendant directly concluded the instant recruitment agency contract with E and agreed to pay fees. If, as alleged by the Defendant, the business under the said recruitment agency contract is included in the instant agency contract’s business, the Plaintiff, other than the Defendant, entered into a contract similar to the subcontract with E, and there is no reason to be a party to the contract under which the Defendant is directly liable for the payment of fees.

(2) On March 18, 2015, the Defendant ratified the duties of the committee at its inaugural general meeting of promoters. Of the list of duties subject to ratification, the partnership regarding the preparation of business plans, the promotion committee’s duties, the authorization of establishment, the land purchase duties, and the conclusion of agreements with the construction company, etc. are divided into separate items, and the “Recruitment of partners” is entered into as a partnership (Evidence 20). This is supported by the fact that the duties under the instant recruitment agency contract are not included in the instant agency business contract, but in the instant agency business, E, other than the Plaintiff, is entrusted with the recruitment of partners.

(3) Even based on the budget bill decided at the inaugural general meeting of March 18, 2015, the agency service cost is set up as “unit cost,” while the agency service cost is “sale cost,” such as promotional officers, advertising publicity, and the recruitment of union members,” is separately set up (No. 9-2). This supports the fact that the instant agency contract and the instant recruitment agency contract concerning the recruitment of union members are separate.

(4) Even in the standard agency contract of the regional and workplace housing association created by the Ministry of Land, Infrastructure and Transport, the services of the selling agency are excluded from the scope of the services of the agency contract (No. 6 No. 3).

(5) The Plaintiff and E are similar to the time of establishment, and they are jointly included in D as promoters and stockholders. In promoting the instant business, the Plaintiff and E appears to have performed the instant business without strict distinction between their duties and employees. However, as seen in the above paragraphs (1) through (3), as seen in the above, the Plaintiff and E entered into a separate contract with the Defendant respectively, and the contents of each contract were different, and the accounting-related matters, such as the issuance of tax invoices, were separately carried out by each company. In light of the above, it is insufficient to deem the Plaintiff and E to be the same company in fact.

4) Determination as to the relevant assertion, such as model cargo rents, etc.

A) Summary of the Defendant’s assertion

Under the instant agency contract, the Plaintiff’s business includes “support for the recruitment, management, and sale of all the affairs related to the recruitment of partners.” However, since the instant model right is for the recruitment of partners, it is only for the Plaintiff to provide services under the instant agency contract (support for the recruitment of partners). Therefore, the Defendant’s payment of rent, etc. to the Plaintiff under the instant lease contract should be deemed to have actually paid the service cost.

B) Determination

As seen earlier, according to the instant agency contract, “the construction of a model house” is separate items from “all the affairs related to the recruitment, management, and sale of members” (Article 4(1) Subparag. 1 of the instant agency contract). The Plaintiff is in charge of only the affairs to support the construction of a model house (Article 4(2) Subparag. 1 of the instant agency contract). If so, it cannot be deemed that the construction of a model house and the lease of it are included in the scope of the Plaintiff’s affairs under the instant agency contract. Accordingly, the Defendant’s assertion on this part is rejected.

5) Determination on the conjunctive defenses

A) Summary of the Defendant’s assertion

In the process of the instant project, when the additional shares of the Defendant’s members increased considerably, the Plaintiff set the construction cost at KRW 3,50,000 per square year with the Si Construction Corporation G (hereinafter “G”) and increased the construction cost at KRW 3,430,000 per square year, while the problems arose during the construction process, G increased the construction cost at KRW 80,000 per square year. Accordingly, the Plaintiff pointed out the Plaintiff’s mistake that the Defendant’s members failed to properly calculate the unit price per square year. On November 201, 2016, the Plaintiff agreed to have the Defendant bear KRW 3,80,000,000 for the increased construction cost, and agreed to deduct

B) Determination

According to the purport of Eul evidence No. 11 and the whole arguments, the plaintiff stated that the agency fee of 598,00,000 won is 598,000,000 won for each household under the business balance analysis sheet, which was sent by the plaintiff to the defendant around October 27, 2017, and that 3.20,000,000,000 won is 153 households, and the data pertaining to the completion of business approval sent by the plaintiff to the defendant are also stated 598,00,000 won as an agency fee of 153 households, and the contents include 153 households X6,00,000,000 won for each household under the contract of this case excluding value-added tax) x 300,000 won x 153 households excluding the amount of 6,00,000 won per household under the contract of this case x 300,000 won.

According to the above facts, the plaintiff agreed to bear part of the construction cost to the defendant, and the plaintiff agreed to claim only KRW 1,009,800,000 after deducting 320,000,000 from the service cost other than value-added tax (excluding value-added tax; hereinafter the same shall apply). Therefore, the plaintiff agreed to claim for the amount of KRW 1,00,800 (=6,600,000 from X 153 households, value-added tax; hereinafter the same shall apply) equivalent to the difference between the service cost other than value-added tax + KRW 352,00,000 from the service cost other than value-added tax + KRW 300,300 from the above service cost plus the above amount of KRW 352,00,000 from the service cost that the plaintiff was entitled to claim against the defendant under the agency contract of this case (i.e., value-added tax + KRW 300,300,000.

C. Sub-committee

Then, the defendant is liable to pay damages for delay calculated at the rate of 56,820,00 won remaining 352,00,000 won, excluding those agreed to be borne by the plaintiff at the service cost of 908,820,000 won, as above, and damages for delay calculated at the rate of 12% per annum under the Civil Act until September 6, 2019, which is deemed reasonable to dispute as to the existence and scope of the defendant's obligation to pay from 15 days after the commencement date of construction to 20,000 won, and from 20,000 won to 16,820,000 won, excluding those agreed to be borne by the plaintiff at the service expense of 15,00,000 won, to the defendant, pursuant to the provisions of the former Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, 16,0000 won per annum from 20,000 to 16,000.

3. Judgment on the Plaintiff’s loan claim

The Plaintiff loaned money to the Defendant at an annual interest rate of 5% from December 12, 2014 to December 19, 2016 as stated in attached Form 1 is as seen earlier. The Plaintiff is a person who has received the repayment of the loan from the Defendant as stated in attached Form 1 from March 12, 2015 to April 26, 2017, and the fact that the amount of the loan unpaid at the time of April 26, 2017 is 47,437,723 is no dispute between the parties.

Therefore, the Defendant is obligated to pay the Plaintiff KRW 477,437,723 as well as damages for delay calculated at the rate of 5% per annum prescribed by the Civil Act from April 27, 2017 to February 9, 2018, the delivery date of a copy of the instant complaint, from the date of the final repayment date, to the date of February 9, 2018, and 15% per annum from the next day to May 31, 2019, and 12% per annum from June 1, 2019 to the date of full payment (the Plaintiff claimed 15% per annum from the day immediately following the delivery date of the copy of the instant complaint, but the Plaintiff did not have any reason to seek damages for delay exceeding the annual interest rate of Article 3(1) of the Act on Special Cases Concerning the Encouragement, etc. of Legal Proceedings amended by Presidential Decree No. 29768, May 21, 2019).

4. Conclusion

Therefore, the Defendant is obligated to pay the Plaintiff 1,034,257,723 (i.e., service charges of KRW 556,820,00 + loans of KRW 477,437,723) with 556,820,00 as service charges of KRW 50 per annum from November 29 to September 6, 2019; 5% per annum from September 6, 2019; 47,437,723 with 5% per annum from April 27, 2017 to February 9, 2018; and 15% per annum from the next day to May 31, 2019 to the day of full payment; and 15% per annum from June 1, 2019 to the day of full payment.

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

The presiding judge and the lowest judge;

Judges fixed-age

Judges Gin Young-young