Cases
2015Da13034, Liquidation money, etc.
2015Da13041 (Counterclaim) Registration of transfer of ownership
Plaintiff (Counterclaim Defendant) Final Appeal
Saryary Appellee
A
Defendant (Counterclaim Plaintiff) Appellee
Appellant
B Rebuilding Housing Association
The judgment below
Seoul High Court Decision 2014Na13954 (Main Office), 2014NaNa decided January 16, 2015
13961 (Counterclaim) Judgment
Imposition of Judgment
December 24, 2015
Text
The part of the judgment below on delay damages for KRW 1,008,711,000 shall be reversed, and this part of the case shall be remanded to the Seoul High Court.
The Defendant-Counterclaim Plaintiff’s appeal is dismissed.
Reasons
The grounds of appeal are examined.
1. As to the ground of appeal by the Plaintiff (Counterclaim Defendant, hereinafter referred to as “Plaintiff”)
(1) Where a reconstruction association which has obtained approval of a project plan under the former Housing Construction Promotion Act prior to the enforcement of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”), has a provision on cash settlement of land, etc. in its articles of association or regulations, etc., the association members who did not apply for parcelling-out or withdraw shall be liquidated in cash in accordance with the methods and procedures prescribed by its articles of association or regulations (see Supreme Court Decision 2010Da15134, Sept. 8, 201).
Meanwhile, in a case where a reconstruction association which obtained approval of a project plan under the former Housing Construction Promotion Act before the enforcement of the Act on the Maintenance and Improvement of Urban Areas bears the obligation to pay liquidation money to the association members, etc. who did not apply for parcelling-out, under the principle of equity, the association members are obligated to transfer the ownership of land, etc. to the reconstruction association in the state of no restriction of rights, and the obligation of transferring ownership without registration of restriction of rights and the obligation of the reconstruction association to pay liquidation money are concurrently performed (see Supreme Court Decisions 3780, Oct. 9, 2008; 2011Da19768, Jul. 25, 2013).
However, where the owner of land, etc. has completed the registration of transfer of ownership and the transfer of land, etc. to a reconstruction association but fails to cancel the registration of relocation, the scope of liquidation money for which the reconstruction association may refuse payment by asserting simultaneous performance with the cancellation of the registration of establishment of relocation in cash liquidation pursuant to the articles of association or regulations shall be determined in accordance with the concept of equity and the good faith principle in light of the fundamental purpose of recognizing the right
(4) In light of the following circumstances, where a partner fails to apply for parcelling-out within the period of application for parcelling-out under Article 39, the defendant may remove its members and liquidate its shares in cash, but the same may not apply where a partner makes an application for parcelling-out before the date of drawing lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lots lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot lot.
November 19, 2015, see Supreme Court en banc Decision 2012Da114776 Decided November 19, 2015
(2) According to the evidence duly adopted by the court below, ① the defendant was established for the implementation of the housing reconstruction project with 31 units of apartment buildings and 1 units of 20 billion won, and approved on May 26, 199 as the reconstruction association with 200, 10, and 13 units of 1/2 shares in the above commercial building (hereinafter referred to as the "share of this case") as the defendant's members, and ② the defendant removed all the above apartment buildings and 2 units of 700,000,000,000 won and 1 units of 20,000,000,000 won and 1 units of 20,000,000 won and 1 units of 20,000,000 won and 1 units of 20,000,000 won and 2,000,000 won and 2,00,000 won.
In light of such factual basis, the lower court deemed that the Defendant could refuse to pay the entire liquidation amount on the basis of the defense of simultaneous performance until the cancellation of all the registration of creation of the first and second collateral collateral collateral collateral, and determined that the Defendant was liable to pay the Plaintiff for delay damages only from February 25, 2014, the following day from the date when the registration of establishment of the first and second collateral collateral collateral collateral collateral collateral collateral collateral collateral loan was all cancelled, and entirely dismissed the Plaintiff’s claim for delay damages on the liquidation amount until February 24, 2014.
(3) However, according to the foregoing legal doctrine, if a landowner completes the registration of ownership transfer on the ground of trust to a project developer, the Plaintiff is not obligated to separately transfer ownership to receive liquidation money (see Supreme Court Decisions 2008Da37780, Oct. 9, 2008; 2012Da110477, Nov. 28, 2013; 2012Da110484, Nov. 28, 2013), and the Plaintiff already completed the registration of ownership transfer in accordance with the cash settlement set out in the Defendant’s rules and the management and disposition plan standards. Moreover, the Plaintiff’s removal of the said commercial building containing the instant shares, thereby completing delivery to the Defendant. Accordingly, the Defendant’s refusal of payment based on the right to defense of simultaneous performance is limited to the maximum debt amount at the time of cancellation of the registration of ownership transfer on the ground that the registration of ownership transfer on the ground of the first and second units of the instant case was not cancelled.
Nevertheless, on the grounds indicated in its reasoning, the lower court dismissed all the Plaintiff’s claim on damages for delay up to February 24, 2014 where the registration of establishment of the first and second collateral mortgage on the liquidation money to be paid by the Defendant to the Plaintiff was cancelled. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of simultaneous performance in the cash settlement relationship in accordance with the rules of the association, etc.,
2. As to the Defendant’s grounds of appeal, the appraisal method ought to be respected unless there exist significant errors, such as that the appraisal method is contrary to the empirical rule or unreasonable (see Supreme Court Decision 2004Da70420, 70437, Feb. 22, 2007).
The court below accepted the appraisal result of the first instance appraiser C on the market price of the share in this case owned by the Plaintiff, and assessed that the market price of the share in this case as of February 2, 2007 is equivalent to KRW 1,008,711,000, and rejected the Defendant’s assertion that the above appraisal result was erroneous on the grounds as stated in its reasoning.
Examining the record in accordance with the aforementioned legal principles, the lower court’s measure is justifiable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by failing to exercise its
3. Conclusion
Therefore, the part of the judgment below regarding delay damages for KRW 1,008,711,00 is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The defendant's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Judges
Justices Park Sang-hoon
Justices Kim Jae-tae
Chief Justice Cho Jae-hee
Justices Park Sang-ok