2017Na2017038 Claim for Return of Sale Price, etc.

A

B Regional Housing Association

Suwon District Court Decision 2015Gahap1904 Decided February 16, 2017

January 19, 2018

March 7, 2018

1. A plaintiff concerning the preliminary claim amounting to the subsequent amount ordered to be paid in the judgment of the first instance;

The part of the loss shall be revoked.

The defendant shall pay to the plaintiff KRW 7,260,000 and to March 7, 2018, respectively, for each year from May 10, 2015 to March 7, 2018.

5% and 15% interest per annum from the next day to the day of full payment shall be paid.

2. All appeals filed against the plaintiff's primary claim and dismissal of all the remaining appeals against the conjunctive claim;

(c)

3. 30% of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. The portion of payment of the amount under paragraph (1) may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff 58,700,000 won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff falling under the order to pay below shall be revoked. The defendant shall pay to the plaintiff 30 million won with 5% interest per annum from March 12, 2015 to February 16, 2017, and 15% interest per annum from the next day to the date of full payment.

1. Facts of recognition;

A. The Defendant was established to implement a new apartment construction project on the land outside H and 27 parcels in Suwon-si, Suwon-si. The Defendant obtained authorization from the head of Suwon-si on January 3, 2012. On November 1, 2012, the Defendant submitted a business plan to the effect that “C apartment of 844 households” was newly constructed on the land subject to the project, and obtained approval for the project plan from the Suwon-si market on January 2013.

B. Around September 30, 2013, the Plaintiff entered into a membership agreement with the Defendant and the Plaintiff (hereinafter “instant agreement”) with the effect that the Plaintiff would join the Defendant as the Defendant’s members and pay the Defendant the share of the association members regarding the operating expenses, and that the Plaintiff would allocate the said apartment 112 and 702 to the Defendant (hereinafter “instant agreement”). The main contents of the instant agreement and each letter prepared and submitted by the Plaintiff to the Defendant at the time of the instant agreement are as follows.

1) The instant contract

Article 3 (Share of Cooperative Members)

1. The Plaintiff, an applicant, as a member, shall pay the land purchase cost, construction work cost, design supervision cost, removal cost, model cargo construction cost, civil petition treatment cost, and other project cost necessary for a housing construction project within the following schedule:

(units: 1,00 won

241,073 Contract Price 1 (Contract Price), 10%24,702 ( July 2013) 20% 20% 24,202 10% 20% 24,202 ( August 2013), 203 ( May 2014), 10% 10% 24,204 204 ( October 2014), 1024,205 ( March 2015), 512,106 ( August 2015) 5% 12,100,47,073

2. The amount of the above-mentioned contribution shall be determined on the basis of the base floor by the difference or change in the contribution according to the number of floors, units and units thereafter, and the amount of the contribution determined on the basis of the number of floors, units and units shall be determined thereafter (including the increase or decrease in the area indicated on the subject matter).

2. Business authorization. During the process of permission, there may be an increase or decrease in the sale area and a change in the scale of business, and consent shall be obtained without an objection to the changed business plan.

3. Members' contributions shall not include taxes and public charges, such as various acquisition tax, registration tax, stamp tax, development charges, charges for school sites, etc. related to the project, and shall be collected and disposed separately at the time of occurrence;

Article 4 (Vicarious Execution Fee)

1. The agency service cost shall be KRW 13.2 million (including value-added tax) in the case of the agency service cost, and 6.6 million won in the case of paying the down payment and 6.6 million won in the case of paying the down payment and 6.6 million won in the case of within 7

Article 8 (Disqualification for Membership)

1. The defendant may immediately cancel the contract without taking the highest or other separate measures upon the plaintiff's act falling under any of the following subparagraphs. In this case, the plaintiff is automatically disqualified. In this case, the plaintiff shall not raise a civil or criminal objection against this contract for the smooth promotion of the project:

(1) If the terms of this contract have not been faithfully fulfilled

(6) commit an act detrimental to the common interest of all members of the Project.

(8) In carrying out the Project, it is deemed impossible to carry out the Project due to the failure to cooperate in the implementation of the Project without good cause or due to the failure to comply with legitimate consultation, etc.

2. If the plaintiff violates Paragraph 1 above, the defendant does not raise any objection to the defendant even if he loses the plaintiff's membership's qualification or ex officio expulsion.

3. Where the Plaintiff withdraws and is expelled ex officio pursuant to paragraphs (1) and (2), only the principal of the paid amount, excluding the contract deposit and the agency fee, shall be refunded; the time of refund shall be the refund key when the deposit is replaced by a new member and a general seller, and other procedures for refund shall follow the order determined by the Defendant (hereinafter omitted).

Article 12 (Application Mutatis Mutandis of Matters to be Observed)

1. The Plaintiff recognized and approved all project-related contracts, such as a real estate sale and purchase-related business, construction contract with the land owner, and other partnership agency business services contract, construction design services contract, removal services contract, and traffic impact assessment services contract.

2. The Plaintiff recognized and approved the business of the partnership and the execution of expenses, which the Defendant had performed before the date of the conclusion of this contract.

Article 16 (Other Matters)

3.The terms and conditions not stated in this Agreement shall be in accordance with the bylaws of the Association, the contract for the construction work and the relevant laws and regulations and general practices.

2) Each letter of this case

11. The shares of members under Article 3 of this Agreement shall be determined by the final amount to be supplied by one household (excluding land acquisition tax, registration tax, and registration tax for preservation) with a unit of 85 square meters (the amount of increase or decrease may be based on the matters of authorization or permission) based on exclusive use area: Provided, That additional shares of members may occur in the process of revising the relevant laws and regulations and permission or changing construction works.

C. From September 30, 2013 to October 29, 2014, pursuant to the instant contract, the Plaintiff deposited KRW 45.5 million into the account designated by the Defendant. The Plaintiff borrowed KRW 144 million from the Suhyup Bank designated as the Defendant’s intermediate payment lending institution, and paid the Defendant a sum of KRW 189.5 million (==45 million + KRW 14,000 + KRW 144,000 + KRW 144,000). In addition, the Plaintiff paid to the Plaintiff as a partner’s share.

From December 31, 2013 to January 24, 2014, the Plaintiff paid KRW 13.2 million as an agency service fee (the Plaintiff was the person who was the applicant of the payment of the above agency service fee in the application for modification of the purport of the claim and the cause of the claim as of March 11, 2015, and the Defendant made a statement consistent with the above person’s statement on February 1, 2017, and thus, the prior confession was established as to the statement of the person in question. The Plaintiff was in the first instance, and the Plaintiff was in the first instance.

4. 5.5. The argument that the above prior confession was revoked through the preparatory documents, but it is not sufficient to acknowledge that the above prior confession was either contrary to the truth or erroneous, solely with the descriptions of the evidence No. 3-3 and No. 9, and there is no other evidence to acknowledge it (the plaintiff's assertion that the service agency fee specified in the contract of this case or the covenant of the Association was not paid in accordance with the plaintiff's assertion).

The result of the advance payment of part of the remainder for which the period of reimbursement has not yet arrived is that it goes against the actual situation, and the revocation of the confession is invalid).

D. The main contents of the rules of the defendant association are as follows:

Article 9 (Joining Association)

(1) A person falling under Article 8 (Qualification for Membership) of the Regulations who intends to join a cooperative shall submit an application for membership in the prescribed form and documents necessary for the implementation of the project and obtain permission from the head of the cooperative

Article 10 (Rights and Duties of Union Members)

(1) Members shall have the following rights:

1. Right to demand the supply of housing of an association determined by a business plan;

2. The right to attend a general meeting, the right to speak and vote;

(2) Members shall perform the following duties:

1. Liability for payment of charges (including agency service charges, land purchase charges, construction charges, etc.);

2. Compliance with relevant Acts and subordinate statutes, regulations, and resolutions at a general meeting;

Article 12 (Expulsion from Disqualification for Membership)

(1) No cooperative member shall withdraw from the cooperative at will: Provided, That where a cooperative member intends to withdraw from the cooperative due to an unavoidable cause, he/she shall notify the head of the cooperative of his/her intention in writing 15 days prior to such withdrawal, and the head of the cooperative shall determine whether to withdraw from the cooperative

(3) Where a union member causes damage to the union because he/she fails to perform his/her duties as a union member, such as any of the following cases, he/she may be expelled from the union according to a resolution of the board of representatives or the general meeting. In such cases, the union member shall be given an opportunity to vindicate before expulsion, but where the union member fails to comply with such opportunity even though he

1. Where charges, etc. have not been paid on at least two consecutive occasions by the designated date;

2. Where it causes enormous damage to the promotion of projects by engaging in an act in violation of the objectives of the association. Article 23 (Resolution by General Meeting)

(1) The following matters shall be determined through a resolution at a general meeting:

7. Details of sharing project costs by each partner;

Article 37 (Imposition and Collection of Charges)

(3) The agency service expenses to be paid at the time of application for membership shall not be refunded when the member withdraws or is expelled from the partnership by payment in accordance with an agreement with the company concluding the contract with the union.

E. On December 7, 2014, the Defendant passed a resolution on the payment of additional contributions to a cooperative member on the ground that additional expenses were incurred in the course of the project implementation by holding a general meeting of the cooperative members. According to the above resolution of the subdivision, the Defendant, like the Plaintiff, bears the obligation to additionally pay KRW 64,02,00 to a cooperative member who is to receive allocation of 33 square apartment as the Plaintiff, as the shares of the cooperative member. The specific items and amounts are as follows (hereinafter “the additional contributions”).

A person shall be appointed.

A person shall be appointed.

F. On February 25, 2015, the Plaintiff refused to pay the instant additional contributions, and filed a lawsuit against the Defendant seeking the cancellation of the instant contract and the refund of the contribution, etc. paid prior to restitution.

G. On March 11, 2015, the Defendant held a board of representatives to recommend the Plaintiff on a resolution to dismiss the Plaintiff. On April 29, 2015, the Defendant repaid the Plaintiff’s loans worth KRW 140 million to the Suhyup Bank on behalf of the Plaintiff.

[Ground of recognition] In without dispute, Gap evidence 3-3, Gap evidence 4, 9, 14, Gap evidence 19-3, Gap evidence 22-2, Eul evidence 1, 2-2, Eul evidence 1 and 2 (excluding the case of specifying provisional numbers; hereinafter the same shall apply), the result of inquiry into the original market of the court of first instance, and the purport of all pleadings

2. Judgment as to the main claim

A. The plaintiff's assertion

The plaintiff is obligated to cancel the contract of this case on the grounds of fraud or mistake in the following order, and the defendant is obligated to pay the plaintiff the share of the union members 45 million won and the total of 13.2 million won for the agency service expenses, and damages for delay thereof, which the plaintiff received from the plaintiff due to restitution to its original state following cancellation.

1) The Defendant makes a false statement to the effect that, upon knowing that the instant additional contributions may be imposed at the time of the conclusion of the instant contract, the Plaintiff would be paid only to the members of the association specified in the instant contract, and there is no charge to be paid in addition to balcony expansion expenses and school site charges.

Accordingly, the above act of the defendant constitutes deception by commission.

2) If the Plaintiff knew that the amount specified in the instant contract, expenses for the expansion of balcony and the charges for school site should be paid in addition to the amount specified in the instant contract, the Defendant did not conclude the instant contract, and thus, the Defendant is legally obligated to notify that the additional charges may arise. However, at the time of concluding the instant contract, the Defendant did not notify the Plaintiff of the fact that the amount equivalent to the instant additional charges could be imposed, and the said amount was entered into the instant contract with the Plaintiff. Accordingly, the Defendant’s aforementioned act constitutes deception by omission.

3) The Plaintiff entered into the instant contract due to the Defendant’s aforementioned act (i.e., the Plaintiff’s act) resulting in the mistake that the Plaintiff would not pay the Plaintiff’s contribution, other than the Plaintiff’s contribution, the expenses for the expansion of balcony and the charges for school site. Such mistake was caused by the Defendant’s fault.

B. Determination

1) The revocation on the ground of deception by commission

The statement of the witness D (the defendant's wife) of the first instance court is difficult to believe it as it is in light of the evidence mentioned above and the testimony of witness E and F of the first instance court, and evidence submitted by the plaintiff alone, including the evidence of No. 2 (which means a recording of the conversation between Plaintiff I and G of the first instance court, and there is no evidence to deem that G performed the business of entering into a membership agreement with the plaintiff), and there is no other evidence to acknowledge it otherwise. Accordingly, this part of the plaintiff's assertion is rejected.

2) The revocation on the ground of deception by omission

In light of the following facts and circumstances revealed by taking full account of the purport of the entire arguments and the facts and evidence as seen earlier, it is reasonable to deem that the instant contract concluded with the Defendant’s member membership agreement, recognizing the circumstances that the Plaintiff may incur additional contributions in addition to balcony expansion expenses and school site charges. Therefore, the Plaintiff’s assertion on the ground that the Defendant committed deception by omission was not notified of the aforementioned circumstances cannot be accepted.

① In light of the name and content of the instant contract (Evidence A 3-3), even if the Plaintiff did not pay special attention, it seems that the instant contract was either aware or could have been sufficiently aware of the circumstances that the instant contract was not the real estate sales contract but the Defendant’s membership agreement.

② Article 12 of the instant contract recognizes and approves the Defendant’s business affairs and performance of expenses that the Plaintiff had entered into force before the instant contract, and stipulates that the Defendant’s rules, regulations, etc. comply with the instant contract. Article 3 of the instant contract stipulates that additional charges may be incurred according to the recognition of the project, the process of permission, or the imposition of taxes and public charges on the project. Article 11 of the instant written contract stipulates that the possibility of additional charges may accrue, and does not specifically limit the items of the charges. In addition, Article 23(1)7 of the Defendant’s bylaws stipulates that the details of allocation for the Defendant’s business expenses may be determined through a resolution of the general meeting of the association members. Accordingly, the Defendant passed a resolution on December 7, 2014 at the general meeting of the association members.

③ If the contract of this case can be interpreted as a provision that can impose additional contributions without being excluded from items as the Defendant’s assertion, it falls under each subparagraph of Article 6(2) of the Regulation of Standardized Contracts Act and thus invalid. The contract of this case is concluded with a majority of other parties who the Defendant wishes to join as a member.

Although it falls under the terms and conditions of a contract commonly prepared in advance (see, e.g., Supreme Court Decision 9Da8353, Nov. 27, 2001). However, in light of all circumstances, such as the nature and content of the contract of this case, the contents of the covenant of the Association, and the point that it is required to pass a resolution at the general meeting of the association members to impose additional contributions, it is difficult to conclude that the provisions on additional contributions of this case are null and void.

④ Although the amount of the instant additional contribution appears to have been expressed more than the estimated amount of the Plaintiff at the time of entering into the instant contract, it is difficult to recognize that such circumstance alone was a deceptiond by the Plaintiff, in light of the content of the instant contract as seen earlier and the items regarding the cost of the instant additional contribution.

3) The part concerning the argument for revocation due to mistake

In light of the above circumstances, it is insufficient to recognize that the submitted evidence alone was insufficient to acknowledge that the Plaintiff entered into the instant contract due to the mistake that the additional charges, other than the expenses for expanding balcony and the expenses for school use, will not have occurred, and there is no other evidence to acknowledge this otherwise. The Plaintiff’s allegation on this part is not acceptable.

4) Other alleged parts

A) The Plaintiff cannot impose additional contributions on the Plaintiff on the ground of the instant contract, as the instant contract becomes retroactively null and void due to the Plaintiff’s cancellation, and even if it can be used as the ground for imposing additional contributions on the Plaintiff pursuant to the so-called “the so-called “the so-called “performance-based relationship theory”, the Plaintiff cannot impose additional contributions on the Plaintiff on the ground that the instant contract occurred prior to the formation of a factual contractual relationship, and ② demanding the Plaintiff who lost its membership by cancelling the instant contract to share the project cost against the Plaintiff who lost its membership is in violation of Article 23(

Although it is alleged that the plaintiff cannot cancel the contract of this case, the plaintiff's above assertion on a different premise is without merit, as long as the plaintiff cannot cancel the contract of this case.

B) Although Article 97 subparag. 7 of the former Housing Act (amended by Act No. 13687, Dec. 29, 2015) prohibits a person, other than a member of a housing association, from receiving fees in mediating subscription to a housing association, the Plaintiff asserts that the Defendant’s payment of the fees to a member recruitment service company selected a member recruitment service company and paid the fees for joining the association member, and that it cannot be allowed to calculate and impose additional charges based on this. However, the submitted evidence alone is insufficient to recognize that the sales fees paid by the Defendant to a sales agency are the money paid to the Plaintiff for the referral of subscription to the housing association, and there is no other supporting evidence, and even if it is assumed that the fees were paid in return for the referral of subscription to the housing association, it is difficult to say that such contract should be denied under the private law. Accordingly, the Plaintiff’

C) The Plaintiff asserted to the effect that the instant contract was null and void from the beginning, since the Defendant entered into the instant contract with the status that it was impossible to recruit new members and that it was difficult to change its members due to the lack of withdrawal from membership.

Article 32(5) of the former Housing Act (amended by Act No. 13435, Jul. 24, 2015) provides that the method and procedure for the establishment of a housing creation agreement, the standards and procedure for the qualification of union members, the operation and management of a housing association, and other necessary matters shall be prescribed by Presidential Decree. Article 39(1) of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 26172, Mar. 30, 2015) provides that a regional housing association can not allow a replacement of union members or new subscription after obtaining authorization for the establishment of a housing association; Provided, That where the number of union members obtained the approval for additional recruitment of union members from the Mayor, etc. within the scope not exceeding the expected number of housing construction scheduled, it may allow a replacement of union

In addition, even if the aforementioned provisions of the former Housing Act and the Enforcement Decree were to be merely a regulatory provision and cannot be deemed an effective provision, and thus an agreement was made between the parties in violation of the said provisions, the validity of the said agreement does not become null and void (see, e.g., Supreme Court Decision 2011Da7628, Jul. 25, 2013).

In light of the aforementioned legal principles and the evidence, Gap evidence No. 58, and the purport of the whole arguments, the defendant, before entering into the instant contract, applied for the approval of additional recruitment of union members only on Nov. 25, 2015 when about one year and ten months have passed since it was approved on Nov. 10, 2015, and applied for the approval of additional recruitment of union members on Jan. 6, 2016, and the defendant did not have applied for the approval of additional recruitment of union members to the head of the Suwon City. However, it is difficult to conclude that the plaintiff and the defendant did not invite the plaintiff to join the association without the approval of the competent government office (see, e.g., Supreme Court Decision 93Da2926, Jul. 27, 1993). It is difficult to conclude that the defendant's additional recruitment of union members could not be approved by the head of the instant association without the permission of the competent government office (see, e.g., Supreme Court Decision 93Da29266, Jul., 27, 1993).

C. Sub-decision

The plaintiff's primary claim is without merit.

3. Judgment on the conjunctive claim

A. The parties' assertion

1) The plaintiff's assertion

Since the Defendant, upon expulsion of the Plaintiff from the Plaintiff’s member, cancelled the instant contract, the Defendant is obligated to refund the Plaintiff’s share of KRW 45 million and KRW 13.2 million in total, and KRW 58.7 million in total.

2) The defendant's assertion

According to Article 8(3) of the contract of this case, if the Defendant cancels the contract of this case as the Plaintiff was expelled from the Plaintiff’s member, the full amount of the down payment and agency service expenses that the Defendant received from the Plaintiff is determined to be confiscated. Thus, as seen earlier, the Defendant’s fact of recognition that Article 3(1) of the contract of this case prescribes the down payment to be returned to the Plaintiff following the rescission of the contract of this case by dividing the down payment into 1 and 2 lanes. As such, the Defendant asserts that there is no obligation to return only the amount equivalent to the first down payment of KRW 24.7 million among them. The Defendant asserts that there is no obligation to return the down payment. The “contract money” in this case means the first down payment of the down payment of this case, the total amount of KRW 13.2 million, and KRW 37.9 million should be deducted.

B. Determination

1) The occurrence of the obligation to return the paid amount

According to the facts found above, the defendant ordered the plaintiff from its member on the ground of the plaintiff's refusal to pay the additional contributions of this case, and as a result, the plaintiff and the defendant lose their status as the defendant's member, the defendant is obligated to pay the plaintiff's money paid to the plaintiff, barring any special circumstances (the above assertion was included in the plaintiff's claim for the refund of the additional contributions under the name

(c).

2) Scope of obligation to return

A) We examine the following facts: (a) although the instant contract constitutes an apartment sales contract, not an apartment sales contract; (b) the Defendant’s rescission based on the Plaintiff’s causes attributable to the Plaintiff; (c) Article 8(1) of the instant contract provides that the Defendant may dismiss the Plaintiff from the association members for the same reason as that of the Plaintiff; (d) Article 8(2) of the instant contract provides that the Plaintiff may be removed from the association members on the premise of the Plaintiff’s breach of duty under the instant contract; and (e) Article 8(3) of the instant contract provides that only the remainder excluding the down payment and agency service charges out of the Plaintiff’s total payment, where the Plaintiff lost its membership status under the same rescission or title as above, shall be refunded; and (c) where the Defendant cancels the instant contract, it is reasonable to interpret that the amount equivalent to the down payment and agency service charges can be forfeited pursuant to the scheduled amount of damages under Article 8(3) of the instant contract amount without any special ground to deem otherwise in light of the fact that it is difficult to deem that the Defendant’s legal composition of the Plaintiff’s contract deposit and the damages amount.

B) As to this, the Plaintiff’s additional contributions were due to the Defendant’s occupational failure or intentional omission, etc., and thus, even if the Plaintiff rejected the payment, it does not constitute nonperformance. Thus, even if the Defendant expelled the Plaintiff from a member, Article 8(3) of the instant contract even if the Plaintiff was expelled from the Plaintiff

In light of the fact that the Plaintiff filed the instant lawsuit seeking the cancellation of the instant contract with the Plaintiff’s payment of the instant additional contributions, and made it clear that the Plaintiff would no longer perform its obligations under the instant contract, this part of the Plaintiff’s assertion is difficult to accept.

C) Meanwhile, the court may reduce the estimated amount of compensation for damages to a reasonable extent (Article 398(2) of the Civil Act). The court may reduce the estimated amount of compensation for damages to a reasonable extent (Article 398(2) of the Civil Act). The above facts and evidence acknowledged as above, Gap, 20, 21, 28, 30, 31, 32, 35, 36, 37, 43 through 50, 55, and the following circumstances, which can be known in light of the purport of oral argument as a whole at the witness J of the Party J, i.e., ① where Article 37(3) of the Defendant’s Code of the Association is expelled, the amount equivalent to the agency service cost is not refunded if the Plaintiff’s additional charges were imposed by the resolution of the general meeting of the Association members, ③ The Plaintiff is liable to pay the above charges as the Defendant’s association members for stabilizing the housing of ordinary people, whereas the additional charges are likely to be paid by the Plaintiff 200, 2000,2000.

In light of all circumstances, including the fact that the Plaintiff and the Plaintiff entered into the instant contract with additional recruitment and did not file an application for the approval of additional recruitment of union members with the competent authority until the Plaintiff was expelled (However, as seen earlier, that the instant contract does not become null and void), it is reasonable to reduce the amount of damages under Article 398(2) of the Civil Act to 2,2740,000 won, which is the sum of the down payment of KRW 24.7 million and the agency service cost of KRW 13.2 million in accordance with Article 398(2) of the Civil Act (i.e., KRW 37.7 million (= KRW 379,900,000).

D) Therefore, the Defendant is obligated to return to the Plaintiff the remaining KRW 3,59.6 million after deducting the above KRW 2,2740,000 from the paid-in KRW 58.7 million.

3) Time of obligation to return

A) The fact that Article 8(3) of the instant contract stipulates that the time when the payment is completed by replacing the new union members and the general buyers with regard to the time when the payment is returned is recognized as above. It is reasonable to interpret Article 8(3) of the instant contract as follows: (a) the Defendant’s union agreement does not expressly stipulate the time when the payment is returned; and (b) if the existing union members lose their status as union members because it does not specify the time when the payment is returned; (c) there is room to view that the Defendant bears the obligation to immediately refund the payment; (d) in such a case, there is a risk that the Defendant’s interest would be infringed upon due to unexpected financial burden, and thus, (e) the time when the payment is returned by a special agreement as to the time when the payment is returned.

In full view of the purport of the entire pleadings in evidence Nos. 23 and 56 No. 23 and No. 56, the plaintiff

In light of the fact that the Defendant sold the apartment units No. 112, 702, which was scheduled to be allocated under a new contract, to the general seller on May 9, 2015, and completed the registration of ownership transfer under the name of the general seller on January 19, 2017 after the completion of the above apartment units, it can be recognized that the Defendant set up approximately KRW 337 million at the time of the sale price of the apartment units at approximately 33,000,000, and that the buyer paid the purchase price to the seller at the time of the conclusion of the sale contract, it is reasonable to deem that the Defendant received part of the sale price from the general seller on May 9, 2015 after the purchase and sale contract was concluded with the general seller, and that the time when the Defendant returned the Plaintiff on the same day has arrived.

B) However, in the instant case where only the Plaintiff appealed, the period of damages for delay and the rate of damages for delay on the refund of the amount used by the judgment of the first instance court cannot be considered disadvantageous to the Defendant compared to the judgment of the first instance court. Thus, the amount of damages for delay cited by the judgment of the first instance court shall be maintained at the rate of damages for delay and the rate of damages for delay, which are recognized by the judgment of the first instance court, and the amount of the refund of the amount additionally recognized by the first instance court shall be applied in accordance with the foregoing criteria, only

C) The Plaintiff sought payment for the full amount of the payment to be refunded from the day following the delivery of a copy of the complaint of this case to the day of full payment. However, the Plaintiff’s above assertion is not accepted for the foregoing reasons.

C. Sub-decision

Therefore, with respect to the plaintiff's KRW 35.96 million and the amount of KRW 28.7 million cited in the judgment of the first instance court, the defendant shall be sentenced from March 12, 2015 to the first instance court, which is the day following the delivery of a copy of the complaint of this case.

By February 16, 2017, 5% per annum under the Civil Act (in cases of delay damages for the amount of KRW 28.7 million, referring to the principle of prohibition of disadvantageous change as set forth in the judgment of the court of first instance) and 7.2.6 million won, which is added to the court of first instance, are obligated to pay damages for delay calculated at each rate of 5% per annum under the Civil Act from May 10, 2015, the day following the date on which the payment was returned to the court of first instance, to May 10, 2015, which is deemed reasonable to dispute the existence and scope of the obligation to perform, until March 7, 2018, and 15% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the following day to the date of full payment

4.In conclusion

Therefore, the plaintiff's main claim is dismissed as it is without merit, and the main claim shall be accepted within the above recognition scope, and the remainder of the conjunctive claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the part of the part against the plaintiff as to the conjunctive claim in the judgment of the court of first instance equivalent to the above additional payment order shall be revoked, and the payment order shall be issued to the defendant, and the remaining appeal as to the plaintiff's main claim and the conjunctive claim shall be dismissed, and it

Judgment of the presiding judge;

Judges Yang Sung-nam

Judges next to the court;