Plaintiff (Law Firm Name, Attorneys Seo Won-won et al., Counsel for plaintiff-appellant)

Pyeongtaek-si Housing Association (Law Firm Han & Yang LLC, Attorneys Kim Il-tae, Counsel for the plaintiff-appellant)

June 10, 2019

1. The Defendant shall pay to the Plaintiff 7 million won with 5% interest per annum from September 17, 2018 to August 30, 2019, and 12% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 20% is borne by the Plaintiff, and 80% is borne by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 7 million won with 5% interest per annum from June 21, 2016 to the delivery date of the complaint of this case, and 15% interest per annum from the next day to the day of full payment.

1. Basic facts

A. The Defendant is a regional housing association established with authorization for the establishment of a regional housing association from the head of Pyeongtaek-si on April 6, 2016 to implement a joint housing construction project under the Housing Act on Pyeongtaek-si (location omitted). The Defendant’s application date for authorization for the establishment of a regional housing association is January 2, 2016.

B. On May 16, 2015, the Plaintiff entered into a partnership membership agreement with the Defendant (hereinafter “instant primary contract”) with the following terms and conditions. The instant primary contract includes “matters, etc. subject to the public notice of the eligibility for membership of the regional housing association members, etc.”, “a written consent to withdraw and execute contributions and administrative service funds,” and “a non-housing pledge, etc.” as indicated below.

○ implementer: Defendant (A), contractor: Plaintiff (B) and administrative service provider: B/S Co., Ltd.

Subject matter of ○ contract: (A) [59 square meters in exclusive use area (A-25 square meters in exclusive use area)] and contractor number: A183

○ Members’ schedule of payment of contributions (unit: 00 won)

The remainder of Do gold remaining in the table included in the main sentence shall be 18,150 18,150 18,150 18,150 18,150 180 180 18,30 18,180 180 18,50 180 18,50 180 18,50 150 18,550 18,50 18150 18,18150 18150 180 16,30150 18,50 150 18,50 18,50

Union members' contribution payment account: National Bank (Account Number omitted): KB Real Estate Trust Corporation

○ Administrative Service Expense Payment Schedule: Before the date of application for authorization for establishment of a regional housing association (unit: 0,000 won and additional tax);

59m2 (A) 5,000 6,000 m2 at the time of the three-time payment of the down payment of the contribution to the association members at the time of the second-time payment of the down payment of the charge charge and the down payment of the down payment to the association members in the case of the payment of the total amount of the gold remaining gold in the Dong-gu Y-gu.

National Bank (Account Number 2 omitted): KB Real Estate Trust Co., Ltd.

○ [Public Notice, etc. of Qualifications for Membership of Regional Housing Association Members] (The same content as Article 9(1) of the First Agreement)

A person who intends to become a partner of a regional housing association pursuant to Article 32 of the Housing Act, Articles 38 and 39 of the Enforcement Decree of the same Act, etc. shall meet all of the following requirements:

1. A head of a household who fails to own a house from the date of application for authorization for establishment of a regional housing association until the time of moving into an apartment house of the relevant regional housing association, or who owns only one house with an exclusive residential area of 85 square meters or less (including a spouse, if the spouse of the person intending to become a partner is not registered on the same resident registration card, and a single household

4. A person shall maintain his/her eligibility as a non-family member until the time of occupancy except as permitted by relevant Acts and subordinate statutes, and his/her spouse and spouse shall also be a non-family member on the resident registration of his/her spouse and spouse, in cases of a separate household;

○ [Contributions and Written Consent to Withdrawal and Execution of Administrative Service Funds]

In relation to the construction project of the apartment building of the defendant association promoted by Gap and Byung under the contract of joining the association, Eul deposited the above-mentioned amount 1) in the financial management account in the name of the KB real estate trust corporation.

○ [Non-Housing Pledge]

B In filing an application for apartment of a regional housing association supplied by A under related Acts and subordinate statutes, including the Housing Act, the principal and his/her spouse, including the householder, are aware that all of the household members, as of the date of application for authorization for establishment of the regional housing association (limited to only one of the household members, who owns only one house with exclusive use area of 85 square meters or less, but only one house with exclusive use area of 85 square meters or less), or that there is no winning of the house, and if it is proved that the head of the household, his/her spouse, and one of the household members has owned the house under the related Acts and subordinate statutes, such as the Housing Act, even if he/she, from the date of application for authorization for establishment of the relevant regional housing association, he/she does not raise any civil or criminal

§ 9. Qualification for union members and the general sale price

③ A, C, and their members, etc. are not the institution to determine the membership of the association, but the competent authorization and permission authority shall examine the membership of the association at the time of applying for authorization to establish a regional housing association with the competent authorization and permission authority. If B, after the conclusion of this subscription agreement, a final examination of the membership of the association is conducted as disqualified in accordance with the terms and conditions of this subscription agreement and a letter of no house attached thereto, and a non-permanent pledge attached thereto, etc., the A, C, and C are not fully responsible for all civil, criminal, and administrative responsibilities.

○ Article 10 (Defamation and Compensation for Damages)

(1) A may immediately cancel or terminate this subscription agreement without the peremptory notice for performance or any other separate measure, and in such cases, B shall be disqualified as a member of the Association: Provided, That upon the cancellation or termination of this subscription agreement, the administrative service cost is not subject to refund, out of the amount that B has paid at the time of refund due to the cancellation or termination thereof. In addition, 10% of the penalty for breach of contract for union damages (i.e., referring to 10% of the total amount of contributions paid by the union members) shall be deducted from the contributions (i.e., referring to 10% of the total amount of contributions paid by the union members), and 10% of the penalty for union damages shall

8. Where any false fact is found after the application for membership of a cooperative member, and it is found that the competent authorization or permission authority is disqualified at the time of application for authorization of a regional housing association (or at the time of application for authorization for change) in accordance with relevant statutes, regulations, etc.

C. Pursuant to the instant first contract, the Plaintiff paid KRW 20 million, including the first down payment on May 16, 2015, the first down payment of KRW 10 million, and KRW 5 million on June 22, 2015, and KRW 20 million on July 23, 2015, as the cooperative’s contribution, to the accounts for the payment of the cooperative charges under the name of KB Real Estate Trust Co., Ltd. as the down payment. Moreover, the Plaintiff paid KRW 10 million, including KRW 6 million on June 22, 2015, to the accounts for the payment of the administrative service charges under the name of KB Real Estate Trust Co., Ltd. as the cost of administrative services.

D. On the other hand, on January 27, 2016, the Plaintiff was notified by the Defendant that the Plaintiff owned a house exceeding the exclusive residential area of 85 square meters, and thus constitutes grounds for non-member qualification. However, at the time, the Defendant sold the Plaintiff’s house to the Plaintiff and re-preparation a contract for joining the association as of the day after the sale date, explained that there is no problem in acquiring the Plaintiff’s qualification as a member, and recommended the Plaintiff to sell the said house to the Plaintiff and prepare

E. On April 25, 2016, the Plaintiff notified the Defendant of the payment of KRW 46 million out of the contributions to the members under the instant first contract. On April 26, 2016, the Plaintiff paid KRW 46 million out of the contributions to the members of the association as part of the contributions. On May 24, 2016, the Plaintiff sold the said house owned by the Plaintiff and transferred its ownership to the purchaser, and notified the Defendant of the said fact.

F. On June 20, 2016, the Defendant sent to the Plaintiff a letter requesting the Plaintiff to renew the membership agreement prior to an application for authorization for the change of an association to the effect that “I have been identified as disqualified on April 6, 2016, but is currently qualified, and thus, I would be expected to enter into an application for the change of the association on July 3, 2016.” Therefore, on June 21, 2016, the Plaintiff prepared the membership agreement with the Defendant with the same content as the instant first contract (hereinafter referred to as “instant second agreement”).

G. After the instant secondary contract, the Defendant: (a) pursuant to relevant Acts and subordinate statutes, including the Housing Act, the Plaintiff satisfies the requirements for homeless as of the date of application for authorization to establish a housing association; (b) notified the Plaintiff of the fact that the Plaintiff did not meet the requirements for homeless as of January 2, 2016, which was the date of application for authorization to establish a housing association; and (c) obtained authorization to change the regional housing association of the head of Pyeongtaek-si by excluding the Plaintiff from the association members on February 23, 2017.

(h) Relevant statutes;

[former Housing Act (amended by Act No. 13805, Jan. 19, 2016)

(1) Where a number of constituent members intend to establish a housing association in order to prepare housing (referring to housing constructed with the approval of a project plan under Article 16) (excluding workplace housing associations under paragraph (5)), they shall obtain authorization from the head of the competent Si/Gun/Gu. The same shall also apply where they intend to change the authorized contents or dissolve a housing association.

(7) Matters necessary for the methods and procedures for the establishment of a housing association authorized pursuant to paragraphs (1) and (3), the qualifications for the members of a housing association, the operation and management of a housing association, etc., and matters necessary for the requirements and procedures for reporting the establishment of a workplace housing association under paragraph (5) shall be prescribed by Presidential Decree: Provided, That where a regional housing association, which has obtained authorization for establishment pursuant to paragraph (1), selects its members in an overheated speculation district under Article 41 (1), the status of members shall not

[former Enforcement Decree of the Housing Act] (amended by Presidential Decree No. 27115, Apr. 29, 2016)

Article 30 (Qualification for Membership)

(1) Persons eligible for membership in a housing association under Article 32 of the Act shall be the following persons:

1. In cases of members of a regional housing association, persons meeting the following requirements:

(a) It shall not own a house (including cases determined by Ordinance of the Ministry of Land, Infrastructure and Transport in consideration of the type of a house, methods of selecting occupants, etc.; hereafter the same shall apply in this subparagraph) from the date of application for authorization for the establishment of a housing association (where the relevant housing construction site is located in an overheated speculative district under Article 41 of the Act, referring to the date before one year prior to the date of application for authorization for the establishment of a housing association) to the date the occupancy of the relevant housing association is possible, or the head of a household who owns one house with an exclusive residential area not exceeding 85 square meters (including the head of a household (including the spouse of a household, including the head of a household, and a household member who has the same household as his/her spouse, which is not registered in the same resident registration card as the head of a household)

(b) A person who has resided in an area referred to in subparagraph 11 (a) of Article 2 of the Act for at least six months as of the filing date of application for authorization

[Ground of recognition] The facts without dispute, Gap 1-6 evidence (which includes a serial number; hereinafter the same shall apply), Eul evidence 1, and the purport of the whole pleadings.

2. Determination

A. Determination on the cause of the claim

1) According to the above facts, the Defendant: (a) owned a house with an exclusive use area exceeding 85 square meters as of January 2, 2016, which is the date of the application for authorization for the establishment of the Defendant’s housing association; and (b) concluded the instant secondary contract with the Plaintiff that sold the house owned by the Plaintiff on January 27, 2016, stating that the Plaintiff may become a partner even if the Plaintiff sells the said house; and (c) concluded the instant secondary contract with the Plaintiff that sold the house owned on June 21, 2016. Since the instant secondary contract aims at granting the Plaintiff who is not a member of the Defendant’s association from the beginning to the Plaintiff who is not a member of the Defendant’s association, it is reasonable to deem it as null and void as a contract, the purpose of which is to grant the Plaintiff’s membership status

2) The Plaintiff asserts that since the Defendant entered into the instant secondary contract with the knowledge that the Plaintiff was disqualified as a member, the Defendant should return the interest received as a malicious beneficiary after June 21, 2016, which is the date of the contract.

In the case of unjust enrichment, a malicious beneficiary shall compensate for any loss incurred by returning the interest with interest added thereto (Article 748(2) of the Civil Act), and as to whether a beneficiary of unjust enrichment is a malicious person, the burden of proof is asserted by the party asserting that the beneficiary of unjust enrichment is a malicious person. Here, “faith” refers to recognizing that the holding of one’s own interest is not a legal cause, apart from cases where the beneficiary is deemed to be malicious under Article 749(2) of the Civil Act, and it is insufficient to recognize that the holding of such interest does not have any legal cause. In other words, it is insufficient to recognize that there is a fact that falls under the requirements for a return of unjust enrichment (see Supreme Court Decision 2017Da29536, Apr. 12, 2018, etc.)

On the other hand, it is difficult to recognize the evidence submitted by the plaintiff alone as to the fact that the second contract of this case was null and void as an original impossibility and the defendant knew that there was no legal ground for the ownership of interest. Thus, the part of the plaintiff's claim for legal interest or delay damages for the period prior to the delivery date of the complaint of this case, which is deemed to be a malicious beneficiary, is groundless.

B. Judgment on the defendant's argument

On the other hand, the defendant asserts that since the second contract of this case is an ordinary contract of this case, if the second contract of this case is null and void, the first contract of this case is still valid, and since the plaintiff is found disqualified for union members with respect to the first contract of this case, the administrative service cost of the previous payment is not subject to refund in accordance with the terms and conditions of the contract, but the previous payment can be refunded only to the remainder after deducting 10% of union members' contributions from penalty.

However, according to the above facts, since the defendant concluded the first contract of this case and confirmed that the plaintiff is disqualified for union members who do not meet the requirements without any houses, it did not terminate the first contract of this case on the ground of the plaintiff's reasons attributable to the plaintiff, and it was reasonable to conclude the second contract of this case after allowing the plaintiff to sell the housing owned by the plaintiff to a third party before the application for approval of change of the defendant. It is reasonable to conclude that the plaintiff and the defendant reached an agreement between the plaintiff to extinguish the validity of the second contract of this case. Further, the second contract of this case is only a new contract after disposing the plaintiff's housing to have the non-resident's appearance before the application for approval of change of the defendant, and the remaining contents of the contract excluding the date of preparation are identical to the contents of the first contract of this case. Thus, it is difficult to view that the second contract of this case changed the main contents of the contract of this case and terminated the old debt and establish new debt without any identity as a premise for the remainder of the contract of this case without any reasons.

C. Sub-committee

Therefore, the Defendant is obligated to pay the Plaintiff the legal interest or delay damages at each rate of 77 million won per annum under the Civil Act from September 17, 2018, which is the delivery date of the complaint of this case that the Defendant considered as the beneficiary of bad faith (i.e., 66 million won + 11 million won) and from September 17, 2018, to August 30, 2019, which is the date of the imposition of a substantial amount of the Defendant’s obligation to pay the Plaintiff for the existence and scope of the obligation, and 5% per annum from the next day to the date of full payment, which is 12% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-Hy

Note 1) The deposit amount column and the deposit date column were drawn up with a blank and the instant primary contract was drawn up.