2017Na59642 Return of down payment, etc.

A

B Regional Housing Association

Law Firm Hun-Ga, Attorney Yang Chang-ju, Counsel for the plaintiff-appellant

Suwon District Court Decision 2016Da38739 Decided February 9, 2017

December 8, 2017

January 19, 2018

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 34,255,00 won with 5% interest per annum from May 13, 2016 to the service date of the original copy of the instant payment order, and 15% interest per annum from the next day to the full payment date.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasons for this court are as follows: "The apartment size and the number of houses can be changed if the apartment is sold in lots at the stage of establishing the association (the defendant is entitled to purchase apartment units at the regional housing association at the stage of establishing the association, but it does not purchase the apartment units E, and the defendant still can supply one household among the apartment units of this case to the plaintiff. The defendant's obligation under the contract of this case is not impossible. The defendant presented the layout limit of the apartment complex of this case, namely, the defendant presented the apartment complex of this case and recruited members by setting the sale price according to the floor of the apartment unit of this case, as well as the apartment unit's apartment unit's apartment unit's apartment unit's apartment unit's apartment unit's apartment unit's apartment unit's apartment unit's apartment unit's apartment unit's apartment unit's apartment unit's apartment unit's apartment unit's apartment unit's apartment unit's apartment unit's apartment unit's apartment unit's apartment unit's apartment unit's apartment unit's apartment unit's apartment unit's apartment unit's apartment unit's apartment unit's apartment unit's apartment unit's apartment unit's apartment unit's apartment unit's apartment.

2. Additional determination

A. The assertion

The defendant asserts that the contract of this case is a contract for joining the association, which is already implemented as the plaintiff's joining the association, and that the plaintiff, a member of the association, did not undergo the procedure of withdrawal in order to escape from his position as prescribed by the rules of the association. In addition, even if the plaintiff withdraws from the defendant or cancels the contract, business promotion expenses cannot be refunded in full because it is the money of the nature that the association paid to the agent as remuneration for the handling of delegated affairs on behalf of the association.

B. Determination

1) Determination on the assertion regarding the procedures for withdrawal from partnership

However, the instant contract is concluded on the premise that the Defendant sells the instant apartment units E to the Plaintiff. As seen earlier, as the Defendant was unable to sell the said apartment units to the Plaintiff, the said agreement is deemed to have become impossible to perform due to the Defendant’s responsible cause. As long as the Defendant’s obligation to sell the said apartment units remains, it is difficult to deem that the instant contract has been terminated as the Defendant alleged in the Defendant, and it is difficult to deem that it should undergo the procedure of withdrawing from the association in accordance with the Defendant’s rules even if the Defendant cancels the instant contract on the ground of the Defendant’s nonperformance of obligation. Accordingly, this part of the Defendant’s assertion that differs from the premise is without merit.

2) Determination on the assertion regarding business promotion expenses

Even if the money paid by the Plaintiff to the Defendant as an agent for business promotion expenses under the instant contract was paid to the agent as remuneration for the handling of the delegated affairs, this is merely based on the delegation contract between the Defendant and the agent, and the exercise of the work by the Defendant or the agent is merely the Defendant’s work, and it cannot be deemed that the Plaintiff delegated the work to the Defendant or the agent. Therefore, the Defendant’s assertion on this premise is without merit.

3. Conclusion

Therefore, the decision of the first instance court is justifiable, and the defendant's appeal is dismissed.

The presiding judge, Glaz.

Judges Park Sung-sung

Judges Lee Jae-hee