Plaintiff (Attorney Lee Ho-hoon et al., Counsel for the plaintiff-appellant)

PoscoF Co., Ltd. (Law Firm continental Aju, Attorneys Inn Sang-jo et al., Counsel for the defendant-appellant)

July 8, 2009

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 20 million won with 6% interest per annum from July 28, 2006 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. When the procedure for compulsory auction of the real estate in this case was commenced on February 2003 at Suwon District Court (2003Ma1883) upon an application by the employees dismissed from the defendant's dismissal to operate the real estate on a leased real estate as stated in the separate sheet (hereinafter "the real estate in this case"), the non-party Locom Co., Ltd. (hereinafter "NTcom") paid an amount of KRW 235 million in the name of the defendant SPF (hereinafter "S") and applied for the highest purchase, and received a decision to permit the sale from the above auction court on December 10, 203.

B. However, as the negotiation between the United Nationscom and the Defendant to take over the instant real estate through a sales contract, it entered into the auction procedure by failing to comply with the payment time limit ( January 16, 2004) as set forth in the above auction procedure, and the Defendant sought measures to repay the claims of the above applicants for auction and other collateral security holders, on February 23, 2004, when the Defendant transferred the ownership of the instant real estate to a non-party 2 who leased the amount of KRW 600 million to the Defendant as collateral and borrowed the ownership of the instant real estate from a financial institution to repay the said creditors’ claims. The Defendant entered into a sales contract with the non-party 2 to take the price of the instant real estate as KRW 2.5 billion, and entered into a repurchase contract with the non-party 2 at the repurchase price and completed the repurchase period as well as a repurchase agreement with respect to the instant real estate on March 23, 2004.

C. On March 5, 2004, Nonparty 2: (a) obtained a loan of KRW 1.5 billion from Nonparty 2 to Nonparty 2 and the maximum debt amount; (b) granted a loan of KRW 1.5 billion to the Defendant as part of the above purchase price; and (c) made a repayment of the above loan to the auction creditors, etc., thereby undermining all the burden of provisional attachment and mortgage other than the above collateral security on the instant real estate; and (d) on March 5, 2004, the obligees withdrawn the above compulsory auction application.

D. After consultation with the non-party 2 on March 8, 2004, the defendant entered into a contract to sell the real estate of this case in KRW 2.8 billion with the Locom. ① The contract deposit amounting to KRW 1.5 billion shall be paid in lieu of the payment of the intermediate payment of KRW 435 million which shall be paid in lieu of the payment thereof. ② The intermediate payment of KRW 435 million shall be paid in lieu of the payment thereof, ② the deposit refund claim of KRW 200 million in relation to the provisional seizure against real estate of Suwon District Court (No. 2003Kahap267), and the auction deposit of KRW 235 million in relation to the compulsory auction of this case shall be transferred to the defendant. ③ The balance of KRW 865 million shall be loaned at the bank within 15 days from the date of conclusion of the contract, and the defendant shall immediately transfer the ownership of this case to the bank and deliver all necessary documents to the parties, other than the above contracts, and shall immediately transfer the ownership of the superficies and other necessary documents.

E. According to the sales contract of this case, after transferring the obligation to return the deposit and the obligation to return the auction deposit under the above sub-paragraph (d) to the Defendant in lieu of the payment of intermediate payment. However, on July 12, 2004, when the progress of loans for the repayment of the above collateral security obligation or the creation of any balance was delayed and the transfer registration procedure of ownership transfer was delayed, the obligation of 4.3 billion won, a joint guarantor of the above obligation, and the Defendant issued the above obligation to the Defendant for the loan to the Defendant and the balance of 8.65 million won under the sales contract of this case, and the Defendant received all necessary documents related to the transfer of the above obligation to the Defendant, and issued the above obligation to the third party designated by the Locom or the transfer of ownership. The Defendant was notified of all the remaining documents related to the transfer of the obligation of this case.

F. Meanwhile, on April 7, 2005, the Defendant concluded a contract with the non-party 2 to re-purchase the instant real estate at KRW 2.6 billion under the name of the Espanish, Inc., Ltd., an affiliate company (hereinafter “Espan”), and on that day, paid the non-party 2 a down payment of KRW 1.1 billion and the balance of KRW 1.5 billion shall be paid by April 30 of the same year until April 30 of the same year. The Defendant may succeed to the obligation to return the loan at the time the Espanish takes place with respect to the floating mutual savings bank established on the instant real estate. If the Espanish becomes entitled to succeed to the obligation to return the loan, the Defendant shall pay KRW 1.5 billion in cash to the non-party 2, and the non-party 2 may cancel the contract if the contract was not performed within the maximum period of payment after the remainder payment period and the contract was not performed within the notified period, and the remainder shall be returned to the Espan.

G. Under the sales contract of this case, Licom paid interest of KRW 89,905,469 on behalf of the Plaintiff from around that time to January 3, 2006 due to Non-Party 2’s fulfillment of the obligation of the above collateral security, and due to Non-Party 2’s failure to pay the interest properly. Notwithstanding Non-Party 2’s payment of interest, if the principal and interest, including the interest on the above collateral security, was not fully repaid, the Young Mutual Savings Bank was eventually auctioned upon the decision to commence voluntary auction on June 13, 2006 on the instant real estate with the Suwon District Court’s Liman’s Housing Site KRW 2006ta 67666.

H. On February 22, 2006, Non-party 2 notified that Ethcom and Espanish will pay balance or will accept the instant collateral security obligation, and if the non-party 2 notified that the said re-sale contract will be cancelled. On July 28, 2006, Non-party 2 notified that Ethcom and Espanish will again cancel the re-sale contract on the ground that the instant collateral security obligation would not be taken over without paying any balance under the re-sale contract despite the above notification to Ethcom and Espan, and that the above notification reached the UNcom and Espanish around that time. Meanwhile, on August 16, 2006, the appraised amount of the market value of the instant real estate at the time of appraisal is KRW 5,339,389,050.

I. On February 10, 2006, the Incheon District Court rendered a favorable judgment (2004Gahap4880) on February 10, 2007, but on May 23, 2007, the defendant was paid 89,905,469 won to the defendant, and at the same time the defendant was paid from the UNcom to perform the procedure for ownership transfer registration pursuant to the instant sales contract on behalf of the defendant for the non-party 2, and the claim against the non-party 2 was dismissed on the ground that the re-sales contract was rescinded (2006Na36044) and the claim against the non-party 2 was dismissed on the ground that the re-sales contract was rescinded (the appeal became final and conclusive).

(j) Meanwhile, on March 21, 2007, the Defendant concluded a sales contract again to purchase the instant real estate from Nonparty 2 for KRW 1.5 billion, and paid KRW 500 million as the down payment on June 15, 2007. The instant real estate was ultimately awarded to Nonparty CFD Co., Ltd on November 28, 2007 in the procedure of voluntary auction based on the instant collateral security.

(k) On January 15, 2009, the Plaintiff acquired the damage claim due to the impossibility of the performance of the instant sales contract from the Locom, and the Locom notified the Defendant of the assignment of the claim.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 to 5, Eul evidence 2 to 4, and 6 (including each number), the purport of the whole pleadings

2. Determination on this safety defense

In light of the Plaintiff’s career, including the Plaintiff’s activity as an attorney-at-law, the Plaintiff’s transfer of credit and notification of transfer of credit and the Plaintiff’s transfer of credit, and the relationship between the Plaintiff and the Plaintiff, the Plaintiff’s performance of the instant lawsuit constitutes a lawsuit trust prohibited by Article 7 of the Trust Act, and thus, the instant lawsuit is unlawful. However, inasmuch as the Plaintiff’s transfer of credit to the Plaintiff cannot be readily concluded as constituting a litigation trust, there is no evidence to acknowledge otherwise.

3. Judgment on the merits

A. The plaintiff's assertion

As seen earlier, since the Defendant already sold the instant real estate to Nonparty 2 and completed the registration of ownership transfer, Nonparty 2 had a duty to acquire the instant real estate from Nonparty 2 and register the ownership transfer (hereinafter “the instant obligation to register the transfer”). On April 7, 2005, the Defendant agreed to allow Nonparty 2 to cancel the said contract in cases where the Defendant did not pay the remainder of KRW 1.5 billion by April 30, 2005 or did not accept the obligation to return the loan instead of the remainder of the remainder of the payment, until April 30, 2005. However, the Defendant violated the above contractual obligation until April 30, 2005, and Nonparty 2 did not perform the said obligation to sell the instant real estate to 30 billion won by demanding payment of the remainder of the payment date, and on February 22, 2006, the Defendant notified the Plaintiff of the obligation to cancel the instant contract to 300 billion won by failing to perform the said obligation within the time limit of 300 billion won.

B. Defendant’s assertion

On March 21, 2007, the time when the Plaintiff asserts, the Defendant entered into a new contract with Nonparty 2 to perform the obligation to transfer the instant real estate, and accordingly, paid to Nonparty 2 a down payment of KRW 500 million. However, at the time of entering into the instant contract, Locom decided to take over the instant collateral security obligation, which was established on the instant real estate in the process of entering into the instant contract. In the process of voluntary auction on the instant real estate in the wind where the obligation to pay interest on the said collateral obligation was not fulfilled, and eventually, on November 28, 2007, the Defendant sold the instant real estate to Nonparty CBD Co., Ltd. on the basis of the above auction procedure. Ultimately, since the reason why the obligation to transfer the instant real estate was impossible, the Defendant failed to perform the obligation to transfer the instant real estate due to its failure to perform the obligation to pay interest on the collateral security obligation under the instant contract, the Defendant failed to perform the obligation to cancel the instant contract by indicating its intention to cancel or cancel the instant contract.

C. Determination

(1) Determination on the period of impossibility of performance

First of all, we examine when the duty of the registration of the transfer of this case is impossible.

It is not simply an absolute and physical impossibility of performing an obligation, but also an obligee cannot expect the realization of the obligor’s performance in light of the empirical rules or the concept of transaction in a social life (Supreme Court Decision 2000Da22850 Decided January 24, 2003). Therefore, even if the seller sells real estate owned by another person, the seller’s obligation to transfer the said real estate to the buyer cannot be deemed to have yet been fulfilled, unless there is a circumstance for the seller to acquire the said real estate from the owner and transfer it to the buyer.

However, according to the above facts, as alleged by the plaintiff, the right to claim for the registration of ownership transfer of the real estate of this case against the non-party 2 may be deemed to have expired because the re-sale contract of this case was terminated by the defendant's declaration of delayed performance around July 28, 2006 by the defendant's declaration of intention of cancellation. However, even thereafter, the defendant concluded the contract of this case with the non-party 2 on March 22, 2007 and continued to acquire the ownership of the real estate of this case on June 15, 2007, such as the purchase of the real estate from the non-party 2, and the payment of the down payment to the non-party 2 on June 15, 2007. In light of these facts, the defendant's obligation for the registration of ownership transfer of this case can be deemed to have been fulfilled under the social norms, and therefore, the plaintiff's assertion that the non-performance

However, as seen earlier, the real estate of this case was ultimately awarded a successful bid for the above voluntary auction on November 28, 2007 to the non-party C&C Co., Ltd., and therefore, unless there are any circumstances to deem that the defendant can acquire the real estate of this case from the above C&C Co., Ltd. and transfer it to the UNcom, the obligation to transfer the real estate of this case was impossible to implement on November 28, 2007.

(2) Determination as to the defendant's cause of fault

(A) First, in the instant case where the purchaser of real estate takes over the secured debt of the right to collateral security on the subject matter of sale and there is an agreement to deduct the amount of debt from the purchase price, unless there is any other special agreement such as the creditor's consent thereto, such agreement shall be deemed as performance acceptance rather than the assumption of obligation to exempt the seller (see, e.g., Supreme Court Decisions 2004Da13083, Jul. 9, 2004; 94Da58599, Aug. 11, 1995). As seen earlier, in the instant case where there is no evidence to acknowledge that there was the creditor's consent to take over the secured debt of the non-party 2 with respect to the non-party 2's discharge of the secured debt of the right to collateral security in lieu of the payment of the down payment of the down payment amount of KRW 1.5 billion, it shall be deemed a simple performance acceptance.

(B) However, in general, in the case of a performance acceptance, unless there are special circumstances, it cannot be interpreted that the buyer is liable for the actual performance of the obligation that the buyer assumes, and the buyer is liable for the payment of the purchase price by paying the remainder after deducting the amount of the obligation from the purchase price. As seen earlier, in the instant sales contract, as well as in the agreement to take over the instant collateral security obligation in lieu of the payment of the down payment, as well as in lieu of the payment of the intermediate payment and the balance through the transfer of the obligation pursuant to the agreement with the Defendant, the UNcom performed the obligation to pay the purchase price pursuant to the instant sales contract, and therefore, unless there is any special reason for the Defendant to refuse the performance of the obligation to transfer the registration, it may be viewed that the above obligation is impossible for the Defendant to perform the obligation as seen earlier, unless there is any special reason to the contrary, due to the Defendant’s failure to perform the obligation to transfer the registration of this case.

(C) In regard to this, the Defendant asserted to the effect that, as a special reason, it could be deemed that the Locom’s failure to perform the instant collateral security obligation is the same as the failure to pay part of the purchase price, and that, as Locom did not perform the said collateral security obligation, the instant transfer registration obligation was impossible, and that there was no cause attributable to the Defendant.

As seen earlier, barring any special circumstance, in general, the buyer performed the obligation to pay the purchase price by paying the remainder after deducting the amount of the debt from the purchase price. However, if the buyer neglected to repay the secured debt of the right to collateral security, which is the obligation to be acquired, and the seller has performed the secured obligation in order to prevent the commencement or the progress of the auction procedure, it shall be deemed that there was a special reason to assess that the buyer failed to perform the obligation and failed to pay part of the purchase price, and if the performance contract was entered into with the real estate sales contract as mentioned in the instant sales contract, the buyer’s obligation to compensate for damages or indemnity arising from the buyer’s failure to perform the obligation to pay the purchase price if the buyer paid the purchase price in lieu of the buyer’s obligation to pay the purchase price, and thus, the seller’s obligation to pay damages or indemnity and the seller’s obligation to transfer ownership to the seller are deemed to have been in a quid pro quoous relation, and thus, both are deemed to have a concurrent performance relation.

With respect to the instant case, the public health department and Locom had Non-Party 2 pay interest of KRW 89,905,469 on behalf of Locom because they did not pay the interest properly after they acquired the above collateral collateral obligation through the instant sales contract. Despite the payment of interest, Non-Party 2 paid the interest, so long as the principal and interest of the loan, including the interest on the above collateral collateral loan, is not fully repaid, the Young-gu Mutual Savings Bank, which received a decision to commence voluntary auction as of June 13, 2006, Suwon District Court Decision 2006Mo666 decided on June 13, 2006, and the real estate of this case was finally awarded the auction in the procedure of voluntary auction based on the collateral security of this case. The fact that the real estate of this case was subsequently awarded the contract on November 28, 2007 in the procedure of voluntary auction based on the collateral security of this case.

In light of the above facts, the first sale contract between the defendant and the non-party 2 on the real estate of this case, taking into account the loan-related expenses in the first sale contract between the defendant and the non-party 2, set the repurchase price of 2.5 billion won more than 2.8 billion won, and the second sale contract of this case concluded by the defendant by lending the name of the non-party 2 on the title of the purchase price of this case, and the loan of 1.5 billion won was used for paying the defendant's debt to the auction creditors after the transfer of the registration of the real estate of this case. Thus, it is reasonable to view that the defendant agreed to pay the interest on the collateral loan of this case to the non-party 2 by compensating for damages or reimbursement of the amount equivalent to the purchase price of this case. Therefore, as long as the above 89,905,469 won interest paid by the non-party 2 on behalf of the defendant and the non-party 2 on his behalf of the defendant, it should be deemed that the defendant did not perform the obligation of this case.

Therefore, since the damage liability or indemnity liability equivalent to the amount of the interest on the above substitute for the payment of the purchase price is deemed to be in the relation of performance with the defendant's obligation to transfer the registration of this case as a substitute for the payment of the purchase price, the two parties are in the relation of simultaneous performance. Thus, the defendant may refuse the performance of the obligation to transfer the registration of this case unless the UNcom performs the obligation to compensate for damages or provides the defendant with the obligation to compensate for damages, so the defendant may refuse the performance of the obligation to transfer the registration of this case. Thus, since the defendant's obligation to transfer the registration of this case is not in the state of delay, the defendant's obligation to transfer the registration of this case is not in the state of delay. Thus, even if the defendant's obligation to transfer the registration of this case is not in the state of delay, it cannot be deemed that the defendant's defense is attributable to the defendant, and the defendant'

4. Conclusion

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

[Attachment]

Judges Lee Jae-in (Presiding Judge) and the Hun-Ba Office