(영문) 울산지방법원 2018. 2. 8. 선고 2016가합21267 제12민사부 판결

The purchase and sale contract concluded on March 31, 2015 (hereinafter referred to as "sale and sale contract of this case") with respect to each real estate listed in the separate sheet (hereinafter referred to as "C") between the defendant and C Co., Ltd. (hereinafter referred to as "C") shall be revoked within the limit of KRW 15,700,000. The defendant shall pay to the plaintiff 210,000,000 and 5% per annum from the day following the date of confirmation of the judgment to the day of full payment.

Reasons

1. Basic facts

A. Status of the parties

On March 10, 1993, the Plaintiff was a land partition rearrangement cooperative which obtained authorization for the land district demarcation project in Ulsan-gu D (hereinafter referred to as the “A zone”), and the Defendant was a cooperative established to build an apartment roll with a scale of 520 households on each ground of the land reserved for replotting in the A zone.

(b) Progress of a land readjustment project;

1) On June 26, 2004, the Plaintiff entered into a contract for construction works with E Co., Ltd. (hereinafter “E”) on land readjustment projects (including the following changes) (hereinafter “instant contract for construction works”), and subsequently changed several times thereafter, and on May 22, 2009, the contract amount of May 22, 2009 is KRW 15,29 [=16,000,000 + borrowed + KRW 6,124,000,000 + KRW 1,000 for compensation + office expenses + KRW 1,680,000 for work expenses + KRW 700,28,000,000 for land readjustment projects + KRW 30,391,90,000 for land readjustment projects; KRW 300,000 for replacement land rearrangement projects; KRW 309,200,000 for land rearrangement projects; KRW 27,000 for land rearrangement projects; KRW 301,201,27400.2

2) On May 22, 2009, the Plaintiff: (i) approved that E transferred each land allotted by the authorities in recompense for development outlay under the pretext of progress payment to the Plaintiff; and (ii) paid KRW 5,00,000,000 among the purchase price of each land allotted by the authorities in recompense for development outlay for development outlay for development outlay for the Plaintiff, and KRW 12,508,925,419 to E; (iii) the remainder of KRW 7,508,925,419 to be paid on behalf of the Plaintiff according to the E’s climate and construction progress rate; and (iv) the Plaintiff, upon the request of the Plaintiff, divided land allotted by the authorities in recompense for development recompense for development outlay and may transfer ownership to a third party designated by C; and (v) paid KRW 5,00,000,000 on the date of the contract, KRW 75,50,000,000 on the remainder of the contract, KRW 31,2519.2

3) Upon the suspension of a land readjustment project on September 201, the Plaintiff urged E and C to resume the land readjustment project several times from that time to March 14, 2015. On March 27, 2012, E and C drafted a duty of completion of liability, stating that “E is responsible for and completed the land readjustment project in A, and that “C guarantees it.”

C On March 31, 2015, the Plaintiff concluded a sales contract with the Defendant as KRW 32,00,000,000 in total for the purchase price of each land allotted by the authorities in recompense for development outlay, and the Plaintiff changed the owner of each management ledger of the land allotted by the authorities in recompense for development outlay for development outlay to the Defendant on May 18, 2015, and as for the I and J lots, on May 29, 2015.

(d) the filing of lawsuits and the termination of a contract for construction works for the current development of the corporation (hereinafter referred to as " current development");

1) On September 12, 2012, the current development, which had a claim against the Plaintiff for full payment, filed an application for the seizure and collection order (Ulsan District Court 2012TBT 9684) with the Plaintiff as the debtor, E as the third debtor, and the Plaintiff’s claim against E as the total amount of claim KRW 2,171,610,956, out of the claim for repayment of KRW 12,508,925,419, which the Plaintiff received as the purchase price in recompense for development recompense for development outlay, “a claim for service charges of KRW 2,171,610,956,” and received the seizure and collection order on September 20, 2012.

2) On October 9, 2012, the He filed a lawsuit against E for the claim for the payment of the amount of money (Ulsan District Court 2012Da7614, Busan High Court 2014Na4095), and on November 25, 2015, the Busan High Court rendered a judgment that the sum of the money that he received in excess of the original intent from the Plaintiff in relation to the construction contract was unjust enrichment of KRW 2,387,339,063, which is the sum of the money that he received in excess of the original intent from the Plaintiff in relation to the construction contract, on behalf of the Plaintiff, for the payment of the unjust enrichment amounting to KRW 2,171,610,956 on behalf of the Plaintiff within the scope of the claim for the return of unjust enrichment against the Plaintiff. The judgment was finalized on December 15, 2015 (hereinafter referred to as “the collection of money”).

3) Meanwhile, in the case of the collection money, the current development declared that “E has suspended the construction even if most of the construction cost was received from the Plaintiff, and there was no possibility of completing the construction in the future,” and that the contract for construction work was terminated by subrogation of the Plaintiff through the preparatory documents dated January 10, 2013. The contract for construction work reached E on June 13, 2013, and thus, was lawfully terminated at that time.

(e) Filing a lawsuit against the mining engineering company (hereinafter referred to as "mining engineering");

1) From May 10, 2006 to December 2, 2008, the Mining Engineering Co., Ltd. entered into a technical service agreement with the Plaintiff regarding the project plan (revision) and the shop design service, and a construction supervision service agreement, and completed all of its service duties. However, on the ground that it did not receive more than KRW 30,00,000 as service cost, the supervisor was appointed in the land readjustment project district on February 28, 2013, and the head of Ulsan Northern Northern District notified the Plaintiff of the suspension of the land readjustment project from March 1, 2013 to the time of the appointment of a specialized construction-supervising firm.

2) On March 29, 2013, the Gwangju Engineering filed a creditor subrogation lawsuit against E on behalf of the Plaintiff against the Plaintiff for the payment of money equivalent to the remainder of the mining engineering services costs out of the amount of the Plaintiff’s unjust enrichment claim (Ulsan District Court 2013Gahap2203), and Ulsan District Court 2016, Feb. 6, 2016, the Ulsan District Court rendered a judgment that “E shall pay the amount of KRW 1,361,50,000 to the mining engineering and its delay damages.”

(f) Non-prosecution disposition against K.

The plaintiff filed a complaint against the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), on May 22, 2009, on the ground that "E's actual company K does not have the intent or ability to complete a land readjustment project in A zone within the project implementation period, and on May 22, 2009, the plaintiff's current development project, the creditor of the plaintiff, could not properly proceed with the construction if he forced the execution of the land allotted by the plaintiff in recompense for development outlay. Therefore, if the ownership and disposal authority of the land allotted for development outlay is transferred to C, the plaintiff paid KRW 12,508,925,419 as the purchase price of the land allotted for development recompense for development outlay and the construction work shall be completed by December 31, 2011, by acquiring the ownership of the land allotted by the land allotted in recompense for development outlay and receiving the ownership of the land in recompense for development outlay by December 31, 201."

(g) Cancellation of registration of a construction business of E;

The Ulsan Metropolitan City Mayor issued a disposition to cancel registration of a construction business on October 21, 2015 pursuant to Article 83 subparagraph 3-3 of the Framework Act on the Construction Industry, on the ground that the Seoul Metropolitan City Mayor again failed to meet the registration standards within three years after he/she was subject to business suspension due to falling short of the registration standards.

【Uncontentious facts, Gap’s 1 through 9, 11, 16(if any, including lot number), Eul’s 7 evidence, and the purport of the whole pleadings

2. Judgment on the main defense of this case

A. The assertion

On April 7, 2015, the Plaintiff notified Ulsan Metropolitan City Mayor of the intention to deny the transfer of ownership in the future of the Defendant regarding each of the land allotted by the authorities in recompense for development outlay. The Plaintiff received a request for replacement of ownership on April 14, 2015 and April 21, 2015 from C to the management authority of the land allotted by the authorities in recompense for development outlay for development outlay. Therefore, the Plaintiff became aware of the fact that the purchase and sale contract was concluded on April 21, 2015 at the latest, and thus, the instant lawsuit filed on April 26, 2016 is unlawful as the exclusion period expires.

B. Determination

1) In the exercise of the obligee’s right of revocation, “the date when the obligee becomes aware of the ground for revocation” means the date when the obligee became aware of the requirements for the obligee’s right of revocation, namely, the date when the obligee becomes aware of the fact that the obligor committed a fraudulent act with the knowledge that he/she would prejudice the obligee. Therefore, it is insufficient to simply deem that the obligor was aware of the fact that he/she conducted a disposal of the property. Therefore, it is necessary to make it difficult to fully satisfy the claim due to the lack of joint security of the claim or the lack of joint security already available due to the fact that such a legal act constitutes an act prejudicial to the obligee, and to inform the obligor of the fact that he/she had the intent to harm the obligor, and it is difficult to presume that the obligee was aware of the objective fact of the fraudulent act, and the burden of proof as to the lapse of the exclusion period is the other party to the obligee’s right of revocation (see, e.g., Supreme Court Decision 2013Da585

2) According to the statements in the evidence Nos. 13 through 16, the Plaintiff notified on April 7, 2015 that “the Plaintiff would not transfer ownership to the Defendant’s new apartment site group (28,406 square meters), which is the Defendant’s new apartment site, (28,406 square meters),” and that the Defendant requested the Plaintiff to change the owner, etc. on each management ledger of the land allotted by the development recompense for development recompense for development outlay regarding G lots among the land allotted by the Defendant on April 14, 2015, and on April 21, 2015.

However, in light of the following circumstances revealed in addition to the purport of the entire pleadings, i.e., the Plaintiff’s knowledge of the conclusion of the sales contract on April 21, 2015, even if it was difficult to view that the details of assets of C were specifically known, such recognition alone does not lead to the Plaintiff’s complete satisfaction of claims due to the lack of joint security of claims due to a sales contract around April 21, 2015, or the lack of joint security that had already been insufficient due to a sales contract, or the lack of one story; further, it is difficult to view that the Plaintiff was aware of the fact that the Plaintiff intended to cause harm to general creditors including the Committee, and there is no other evidence to prove otherwise.

C. Sub-decision

Therefore, the defendant's main defense is without merit.

3. Judgment on the merits

A. The assertion

The Plaintiff intended to grant the land allotted by the authorities in recompense for development outlay amounting to 81.21% of the total amount of the land allotted by the authorities in recompense for development outlay for the construction price, and the construction was suspended at 60.06% of the total construction cost. Since the cancellation of registration of E around October 2015, it became impossible for the Plaintiff to fulfill the obligations of E under the construction contract, the Plaintiff constitutes a fraudulent act since the Plaintiff entered into a sales contract with the Defendant as the sole property of the land allotted by the authorities in recompense for development outlay for development outlay for the construction project and C, which is the contractor, with the total amount of KRW 15,737,963,30 (=32,00,000 each purchase price of the land allotted by the authorities in recompense for development outlay for development outlay)/39.94% (i.e., 100% - 60.06%)/ 81.21% of the total amount of the land allotted by the authorities in recompense for development outlay for development outlay for the development outlay for the Defendant.

Therefore, a sales contract shall be revoked within the limit of 15,700,000,000 out of the amount of the claim for return of unjust enrichment by the window, and the defendant has already implemented the new construction of apartments in each land allotted by the authorities in recompense for development outlay, so the plaintiff shall be obligated to pay KRW 210,00,000, which is a part of the amount of the claim for restitution

B. Determination

(i) the existence of the preserved claim

On June 10, 2013, which included an expression of the termination of the contract for construction work by subrogation of the plaintiff in the collection of the collection money, the contract for construction work was lawfully terminated at that time due to the arrival on June 13, 2013 of the preparatory document dated June 10, 2013. Accordingly, E had a claim for restitution of unjust enrichment of KRW 2,387,339,063 against the plaintiff.

In addition, C, a construction guarantee company, bears the responsibility of the guarantor for the return of the E’s unjust enrichment due to the termination of the construction contract (see, e.g., Supreme Court Decision 71Da1474, May 9, 1972). Thus, inasmuch as there is no evidence to acknowledge that E has fully paid the final judgment in accordance with the final and conclusive judgment, the Plaintiff became liable for the return of unjust enrichment of KRW 2,387,339,063 in total to C.

2) Whether a fraudulent act was committed

A) In a case where a debtor reduces a liability property, thereby inducing or deepening the shortage of common security for general creditors, whether an act constitutes a fraudulent act subject to revocation ought to be determined by comprehensively taking into account various circumstances revealed in the act, such as the weight of the debtor’s entire responsible property in the scope of insolvency, the degree of the economic purpose of the juristic act, the reasonableness of the pertinent act, which is the means to realize and justify the economic purpose of the juristic act, the reasonableness of the pertinent act, the nature of duty or circumstance, and the degree of perception of the parties as to the risk of lack of common security, such as the existence of a collusion between the debtor and the beneficiary, and ultimately, whether the act may be deemed an act detrimental to general creditors (see Supreme Court Decision 2007Da271

Meanwhile, the meaning of "property", which is the accounting statement of the balance sheet preparation in corporate accounting = Debt + Capital does not mean that an asset does not always mean that an asset is more than a debt, but it can be divided and indicated at a certain point into an economic resource, an asset that is a financial resource of an enterprise, an obligation, an obligation, and an item of capital, which is the source of one's own funds invested in an enterprise, as a claim for resource reserve, and an asset that is the source of one's own funds invested in an enterprise. In the case of an enterprise, if an asset becomes more and more liabilities than an asset due to the deepening loss of capital, it becomes a state of excess of debt because it has no net assets (see Supreme Court Decision 9Da23468, 23475, Aug. 24, 199

B) In full view of the following circumstances, the sales contract cannot be deemed to constitute a fraudulent act, and there is no other evidence to prove otherwise. In full view of the following circumstances acknowledged in addition to the entries as above in Eul’s evidence Nos. 7 through 9, the budget chief of the tax office of this court, the results of the reply to the submission of tax information and the results of the inquiry into the actual market of this court, and the overall purport of the arguments as to the fact-finding inquiry as to the actual market of this court:

① The total assets, total liabilities, and total capital of C based on financial statements from 2011 to 2015 are as listed below. From 2011 to 2014, the capital-oriented situation in excess of the assets continues to deepen, and since the conclusion of a sales contract in 2015, the total assets exceeded the total liabilities and were not in excess of the liabilities.

As of December 31, 201, as of December 31, 201, 16,540,025,075,07517,505,505,183,60-60-158,525252, 16,498,792,792,06218,931,610,365-2,432,818,3032, 3032013, 15,62,604,5320,63520,634,791,960-5,472,187,414,529,57,537,1638,638,637,47,965,47,296,537,296,47,537,296,537,638,638,4,297,47

② In addition to each land allotted by the authorities in recompense-si, the value of each land owned with 5m2, 5m2, 261m2, 215m2, P prior to P, 305m2, Q, Q, 162m2, and 65m2 before R, etc. in addition to the land allotted by the authorities in recompense-si for development outlay-si, shall be calculated as the officially announced land value, and the value of each land is KRW 30

③ The Defendant purchased each land allotted by the authorities in recompense for development outlay for the new apartment construction project, and the Plaintiff intended to change the owner on the management ledger of the land allotted by the authorities in recompense for development outlay for development outlay to the Defendant, and the Defendant did not object to or raise an objection to the process of obtaining approval for the housing construction plan on each land allotted by the Ulsan Metropolitan City Mayor.

④ Upon purchasing KRW 12,508,925,419, and selling KRW 32,00,000,000 for each land allotted by the authorities in recompense for development outlay, C did not sell the land at an unjust price. The fact that the head of the Defendant’s association served as the representative director C in collusion with C cannot be inferred that the Defendant immediately concluded a sales contract in collusion with C.

(5) Each land allotted by the authorities in recompense for development outlay need to look differently from sale and purchase of general real estate in terms of promoting urban development, creating a pleasant urban environment and contributing to the enhancement of public welfare as a group of land allotted by the authorities in recompense for development outlay

Therefore, the plaintiff's assertion on the premise that a sales contract is a fraudulent act is without merit.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.