(영문) 대구지방법원 2017. 11. 15. 선고 2017가단9432 판결

The defendant shall pay to the plaintiff 154,00,000 won and 44,000,000 won among them, 200 won from January 8, 2015, 44,000,000 won from March 31, 2015, 66,000,000 won per annum from June 30, 2015 to the sentencing day, and 5% per annum from the next day to the day of full payment.

Reasons

1. Basic facts

O The defendant Cooperative shall have the Daegu Suwon-gu Seoul Project District as a project implementation district and the Housing Act and its Enforcement Decree.

It is a regional housing association established to promote a housing construction project according to this.

On January 8, 2015, the Plaintiff entered into a membership agreement with the Defendant Union (hereinafter referred to as “instant membership agreement”), and paid KRW 39,000,000 out of the subscription price and the down payment at the time of entering into the agreement, and paid KRW 44,00,000 out of the down payment and KRW 154,00,000 in total, on March 3, 2015.

O The main contents of the instant subscription agreement are as follows.

Article 2. 1. 2. Housing Association's qualification. 60m or less (in the case of the revision of the relevant Acts and subordinate statutes, 60m or less (including the spouse of a householder and a household member who has the same household as his spouse and his spouse not listed on the same resident registration card as the household). 1. "A" can be terminated immediately upon the occurrence of any of the following acts: "B" without the peremptory notice of performance or other separate measures. In this case, "B" shall be automatically disqualified for membership; 2.0m or less (including the case of the amendment of the relevant Acts and subordinate statutes) of the Housing Act's housing association's housing association's housing association's housing establishment; 3.0m or less of 60m or less (including the case of the amendment of the Act)'s housing association's housing association's housing association's housing establishment. 1.0m or less of 2. 2. 3m or less of 4 times of payment for the housing association's housing association's subscription and 1.

(O) The provisions concerning the Housing Act (amended by Act No. 12959, Dec. 31, 2014; Act No. 12959, Apr. 1, 2015); the Enforcement Decree of the Housing Act (amended by Presidential Decree No. 26172, Mar. 30, 2015); the Enforcement Rule of the Housing Act (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 213, Jul. 1, 2015), and the Enforcement Rule of the Housing Act (amended by Ordinance of the Ministry of Land, Infrastructure and Transport) are as follows.

[1] In the case of a member of a regional housing association, a person who is eligible to become a member of a housing association under Articles 32 (Establishment, etc. of Housing Association) and 32 (Establishment, etc. of Housing Association) of the Housing Act shall be prescribed by the Presidential Decree. The head of the housing association shall be the head of the housing association [referring to the spouse of the head of the housing association and the head of the housing association who does not have the exclusive residential area or the head of the housing association within the area of the housing association under the provisions of subparagraph 1 of Article 2 (Establishment, etc. of Housing Association; hereafter the same shall apply in this subparagraph] or the head of the housing association which has the exclusive residential area or the head of the housing association under the provisions of subparagraph 2 of the same paragraph (where the housing construction site is located within the area of speculation under Article 41 of the Act, referring to the date before the date of application for authorization for establishment of the housing association) or the association's association.

Pursuant to Article 18 of the Enforcement Rule of the Housing Act, the defendant association submitted an application for authorization to establish an association on April 13, 2015 to the head of the Daegu Suwon-gu Office. The head of the revised office confirmed that 985 persons, including the plaintiff, were eligible for membership through computerized search of the housing computer network by the Ministry of Land, Infrastructure and Transport pursuant to Article 18 of the Enforcement Rule of the Housing Act,

O At the time of the instant subscription agreement, the Plaintiff owned No. 1101, 306, Dong-gu, Daegu-gu, 2013, No. 306, Dong-gu, Daegu-dong-dong-gu, No. 1101, and the Plaintiff’s spouse E entered into a contract for new construction on June 14, 2014 and “No. 403, 84.9428 square meters of a transitioned area) of the F-gun, Gyeongcheon-gun, Gyeongcheon-gun, Seoul-do, and completed the registration of ownership transfer on June 17, 2016, after the instant subscription agreement.

On February 15, 2016, the Plaintiff responded that it cannot become a member of the regional housing association when acquiring the right of recourse against the ‘un-sale apartment' from the Ministry of Land, Infrastructure and Transport housing policy and the Ministry of Land, Infrastructure and Transport housing policy. On July 14, 2016, the Plaintiff responded to the same purport as that of the Daegu Metropolitan City Suwon-gu Building.

(O) On May 16, 2016, July 20, 2016, and February 3, 2017, the Plaintiff concluded the instant subscription agreement by deceiving the Defendant Cooperative’s contracting officer to be a local housing association member even if the purchaser of the unsold apartment units could not become the local housing association member, and thus, the instant subscription agreement was cancelled, and the subscription money, down payment and sharing of the already-paid subscription money.

The certificate was sent to the effect that "the gold is returned." The above certificate reached the defendant union around that time.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 through 6, 9 through 12, Eul evidence 1 and 2

(including branch numbers; hereinafter the same shall apply); the purport of the whole pleadings; and

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

(1) At the time of the instant purchase agreement, the Plaintiff owned an apartment with an exclusive residential area of 85 square meters or less, and as a member of the Plaintiff’s household, E, his spouse, entered into a sales contract for an apartment with an exclusive residential area of 85 square meters or less in Gyeongcheon-gun, Chungcheongnam-do, and was scheduled to acquire the ownership of the said apartment prior to the scheduled date of occupancy of the association’

At the time of entering into the instant subscription contract, the Plaintiff owned the apartment at the present time with the contracting officer in charge of the Defendant Union, and asked whether the Defendant Union can become a member of the sales contract for the unsold apartment, which was concluded on June 14, 2014. The said contracting officer concluded the sales contract for the unsold apartment, but said, the said contracting officer could be a member of the Defendant Union even if he concluded the sales contract for the unsold apartment. Accordingly, the Plaintiff believed the said horses and concluded the instant subscription contract with the Defendant

(2) As above, the Plaintiff could not become a member of the Defendant Union at the time of the instant subscription agreement, and thus, the instant subscription agreement is null and void.

(3) As above, the Plaintiff could not become a member of the Defendant Union at the time of the instant subscription agreement. The contracting officer of the Defendant Union deceivings the Plaintiff that he could become a member of the Defendant Union. In addition, the contracting officer of the Defendant Union did not notify the Plaintiff that he would lose his membership when he acquired ownership of the unsold apartment house. The Plaintiff did not notify the Plaintiff that he

According to deception, this case's subscription contract was concluded.

In addition, the Plaintiff did not enter into the instant subscription contract if it knew that the Plaintiff acquired ownership in an unsold apartment unit, but did not enter into the instant subscription contract, and concluded the instant subscription contract by mistake in reliance on the statement of the contracting officer of the Defendant Union that the Plaintiff may become a member of the Defendant Union even if it acquired an unsold apartment unit.

Therefore, the plaintiff is revoked by serving a duplicate of the complaint of this case.

(4) The instant subscription contract constitutes a standardized contract subject to the Regulation of Standardized Contracts Act (hereinafter “Standard Contracts Regulation Act”), and thus, the Defendant Union is obligated to explain to the Plaintiff about the matters concerning the qualifications of the members, which correspond to the important contents of the instant subscription contract, so that the Plaintiff can understand. However, the Defendant Union did not explain to the Plaintiff at the time of the instant subscription contract. Accordingly, the instant subscription contract has no effect.

(5) If so, the Defendant Union is liable to refund 154,00,000 won in total, including the subscription amount, the down payment and the contributions paid by the Plaintiff to the Plaintiff, and to pay damages for delay.

(b) Markets:

(1) Determination on the assertion of invalidation

As seen earlier, according to the contract of this case and the Housing Act and the Enforcement Decree of the same Act, with respect to the qualification of a member of a regional housing association, the term “the head of a household who fails to own a house from the date of application for authorization for establishment of a housing association to the date of the occupancy of the relevant housing association, or who owns a house with an exclusive residential area of 85 square meters or less,” and at the time of the contract of this case, the Plaintiff owned an apartment with an exclusive residential area of 85 square meters or less, and the spouse of the Plaintiff entered into a sales contract for the apartment located

At the time of the establishment authorization of the defendant association, the plaintiff was confirmed to be a member of the local housing association through the computerized search of the Ministry of Land, Infrastructure and Transport housing computer network.

Therefore, the Plaintiff cannot be deemed as a member of the Defendant Union solely on the ground that the Plaintiff’s spouse E is expected to acquire ownership in the above apartment house before the Plaintiff entered the association housing from the date of application for authorization to establish the Defendant Union.

Therefore, the plaintiff's argument on this is without merit.

(2) Determination as to the revocation argument

A) As seen earlier, the Plaintiff could become a member of the Defendant Union at the time of the instant membership agreement, and thus, cannot be recognized that the contracting officer of the Defendant Union was deceiving the Plaintiff.

In addition, as to whether a contracting officer of the Defendant Union deceivings the Plaintiff in violation of the duty of disclosure, and whether the Plaintiff entered into the instant subscription contract by mistake, the statement in the evidence Nos. 8 and 12 alone explained that, at the time of the instant subscription contract, the Plaintiff’s spouse E entered into a sales contract by selling an unsold apartment in lots located in Gyeongcheon-gun, Chungcheongnam-gun, in addition to the Plaintiff’s possession of an apartment house with an exclusive residential area of 85 square meters or less to the contracting officer at the time of the instant subscription contract, and it is difficult to recognize that the above contracting officer, despite being aware of it, did not notify that the Plaintiff’s spouse would lose its membership when acquiring ownership in the unsold apartment unit. As seen earlier, according to the Enforcement Decree of the Housing Act, the Housing Act, and the Enforcement Decree of the Housing Act, and the instant subscription contract, the Plaintiff signed and sealed the instant subscription contract. As such, it is reasonable to view that the Plaintiff

Therefore, the plaintiff's assertion on this is without merit.

(3) Determination as to the assertion on the violation of the Standardized Contract Regulation Act

The terms and conditions refer to the contents of a contract that one of the parties to the contract prepared in advance in a certain form in order to conclude a contract with a large number of other parties (see, e.g., Supreme Court Decision 9Da8353, Nov. 27, 2001). The contents of the contract in this case constitute a standardized contract since the contents of the contract in this case constitute the contents of a contract prepared in advance in order to conclude

However, if the terms and conditions are generally and commonly used for a transaction, and the customer could have sufficiently predicted without any separate explanation, or if it is merely an additional or additional extent to the extent that it is already stipulated by the laws and regulations, it cannot be said that the business operator has an obligation to explain and explain such matters (see, e.g., Supreme Court Decision 2006Da87453, Apr. 27, 2007). Of the terms and conditions of the subscription contract in this case, it cannot be deemed that the defendant union has an obligation to explain and explain the matters concerning the qualifications of union members since the contents of the subscription contract in this case have already been covered by the provisions prescribed by the Housing Act and the Enforcement Decree of the Housing Act and the Housing Act, as long as they were signed and sealed by the plaintiff at the time of the subscription contract in this case.

Therefore, the plaintiff's assertion on this is without merit.

(4) Sub-determination

After all, the plaintiff's assertion is without merit.

3.In conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.