Hyundai Construction Co., Ltd. (Law Firm Ga Co., Ltd, Attorneys Kim Jong-soo, Counsel for defendant

Defendant

October 27, 2016

Seoul Central District Court Decision 2015Kahap543424 Decided May 27, 2016

1. Of the judgment of the court of first instance, the part against the defendant in excess of the money ordered to be paid below is revoked, and the plaintiff's claim for revocation is dismissed

With respect to the Plaintiff KRW 344,79,179 and KRW 109,912,00 among them, the amount calculated by the Defendant’s interest rate of KRW 46,00,000 per annum from January 1, 2013 to October 27, 2016, and KRW 15.96% per annum from the next day to the date of full payment; KRW 19,527,631 per annum from January 1, 2013 to November 24, 2016; KRW 15% per annum from the next day to the date of full payment; KRW 215,359,548 per annum from the next day to the date of full payment; KRW 6,00 per annum from the next day to June 18, 2013 to the date of full payment; and KRW 15% per annum from the next day to the date of full payment.

2. The defendant's remaining appeal is dismissed.

3. 10% of the total litigation costs shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

For the Plaintiff 344,79,179 won and 129,439,631 won among them, the Defendant shall pay the Plaintiff 15.96% per annum from January 1, 2013 to June 18, 2015; 20% per annum from the next day to September 30, 2015; 15.96% per annum from the next day to the date of full payment; 215,359,548 won per annum from September 30, 2013 to June 18, 2015; and 20% per annum from the next day to September 30, 2015 to the date of full payment; and 15% per annum from the next day to the date of full payment.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the defendant who ordered payment in excess of KRW 339,79,179 shall be revoked, and the plaintiff's claim on the revoked part shall be dismissed.

1. Scope of the judgment of this court;

At the first instance court, the Plaintiff claimed for payment of the remainder of the sale price due to the sales contract between the Plaintiff and the Defendant, the balance of the options construction cost, the interest on the intermediate payment paid by the Plaintiff, the subrogated payment, and the damages for delay on each of the said payments. The court of first instance accepted the Plaintiff’s claim. Accordingly, the Defendant appealed for all of the principal amount and the damages for delay in the first instance judgment. Accordingly, the scope of this court’s judgment is limited to all of the principal amount and the damages for delay in the first instance judgment.

2. Facts of recognition;

The following facts may be acknowledged in accordance with the purport of Gap evidence 1 to 8 and the whole pleadings.

① On November 6, 2009, the Plaintiff, as a project implementer of ○○○○○ apartment located in the free economic zone in Jung-gu Incheon, entered into a contract with the Defendant for the sale of the above apartment △△△△dong at KRW 331,540,000 (hereinafter “instant sales contract”), and entered into a contract for the construction of balcony expansion options with the construction cost of KRW 11,62,000 on May 30, 2010, respectively.

② According to the instant sales contract, the Plaintiff jointly and severally guaranteed an intermediate payment loan obligation of KRW 197,940,000 against the Defendant’s Korea Exchange Bank (a bank: Han Bank; hereinafter “one Bank”) and paid KRW 19,527,631 as a loan interest on the intermediate payment.

③ According to the instant sales contract and the options construction contract, the Defendant shall pay to the Plaintiff the remaining purchase price of KRW 100,610,000, the remaining purchase price of the options construction work 9,302,00, and the interest on the substitute payment by the expiration date of the occupancy period set by the Plaintiff. The overdue interest rate for the remaining sale price and the remaining price of the options construction work is 15.96% per annum.

④ Although the Plaintiff announced the Defendant on November 3, 2012 to December 31, 2012, the period of occupancy of the said apartment, the Defendant did not pay the said settlement money.

⑤ On September 30, 2013, the Plaintiff subrogated to the Han Bank the total amount of KRW 215,359,548, including the Defendant’s intermediate payment loans and interest in arrears.

④ Meanwhile, the number of buyers of the instant apartment, asserting that the sales contract was cancelled and cancelled primarily on account of the lack of infrastructure of the instant apartment, etc., and filed a lawsuit seeking restitution of the sales price as its original state, and as a result, the Plaintiff filed a lawsuit seeking compensation for damages (as to the Incheon District Court Decision 2011Gau20689, 20689, 2012Gau7287, 2012Gau7287, 2012Gau18126, 2012Gau1249, 2012Gau249, hereinafter referred to as “related lawsuit”) by asserting that the Plaintiff had made a false and exaggerated advertisement as if he were to be performed even though he had knowledge that the development project, such as the construction of the third village, was not implemented as indicated in the sales advertisement)

7) The first instance court dismissed all of the primary claims, and partly accepted the conjunctive claims on the ground that the Plaintiff’s advertisement on the third consecutive landing bridge portion constitutes false or exaggerated advertisements under Article 3(1) of the Act on Fair Labeling and Advertising. The appellate court also determined to the same purport and recognized the amount of damages suffered by buyers as equivalent to 5% of the relevant sales price [Seoul High Court 2013Na23688, 2013Na23695, 2013Na23701, 2013Na23718, 2018, 2013Na23718, 2015, the appellate court dismissed all of the appeals on May 28, 2015 [Joint)] (Supreme Court Decision 2014Da5728, 2014Da57235, 2014Da527242, 205Da52759, May 24, 2014]

3. Determination on the cause of the claim

According to the above facts, the defendant is not obliged to pay to the plaintiff 34,79,179 won = 129,631 won (10,610,00 won + 9,302,00 won for option construction + 215,359,548 won for subrogated payment) and the above 109,912,00 won for option construction from the 20th day following the due date to the 15th day after the due date to the 15th day after the due date to the 10th day after the above 15th day of payment (1.6th day after the due date to the 15th day after the due date to the 10th day after the due date to the 15th day after the due date to the 10th day after the due date to the 16th day after the due date to the 15th day after the due date to the 15th day after the due date to the 16th day after the due date of payment, 15th day after the 2th day after the 16th day after the due date.

4. Judgment on the defendant's assertion

A. The defendant's assertion

The damages for delay stipulated in the instant sales contract and option construction contract constitute an estimate of damages for delay of the Defendant’s obligation to pay the remainder of the sales price and the balance of the options construction price. In light of the following circumstances, the above damages for delay is unfairly excessive, and thus, it should be reduced to the same amount as stated in the purport of appeal pursuant to Article 398(2) of the Civil Act.

1) As a result of Korea's adoption of the "after-sale construction" method in selling apartment units, it is inevitable that the information between the buyers and the selling company exists as to the new city itself, and further, it is impossible to check the site itself on the new city where the apartment unit in this case is located, and the buyer like the Defendant had no choice but to depend entirely on the advertisement of the selling company in the decision to sell apartment units.

2) In determining whether to move into the apartment of this case, which is formed in the island area of Yong-do, the traffic conditions, etc. are the most important factor. The Plaintiff, as a road connecting Yong-do and land in the shortest distance, was scheduled to open traffic facilities, such as the third-in landing bridge, which are directly connected to the city in Incheon Metropolitan City or the Seoul Metropolitan area. Around 2013, the Plaintiff made a false advertisement, such as being going through ten main theaters, theme park, and international business facilities. Unlike the above advertisement, the Defendant completely lost the purpose of the apartment transaction of this case by not realizing such infrastructure.

3) Even if the city’s infrastructure was compared to the initial situation of the general new city, it was extremely bad to the extent that the buyers should attend, and there is sufficient room to deem that the Plaintiff was able to have predicted or predicted such situation.

B. Determination

1) Relevant legal principles

Article 398(2) of the Civil Act provides, “Where the estimated amount of damages is unreasonably excessive, a court may reduce the estimated amount of damages to an reasonable level.” As can be seen, in order for a court to reduce the estimated amount of damages to an unduly excessive amount, it shall be deemed that the payment of the estimated amount of damages would result in the loss of fairness by imposing unfair pressure on the debtor who is in the position of the economically weak as a result of taking into account the economic status of the creditor and the debtor, purpose and content of the contract, the developments and motive behind the scheduled amount of damages, the estimated amount of damages, the estimated amount of damages, the estimated amount of damages, transaction practices at the time, and economic conditions, etc. (see Supreme Court Decision 2014Da20927, Jul. 24, 2014). In order to determine whether the estimated amount of damages is unduly excessive and the scope of adequate reduction thereof, the court shall specifically consider all the aforementioned circumstances arising between the parties at the time of the closure of pleadings at the fact-finding court (see Supreme Court Decision 2007Da37975, Jul. 29, 197, 197.).

2) Determination

A) In the instant sales contract, the Defendant’s application of the remainder of the sales price and the remainder of the options construction price to the Plaintiff at the rate of 15.96% per annum constitutes a case where the Defendant separately agreed on the rate of delay damages against the delayed performance of monetary obligations, and thus, constitutes a type of liquidated damages.

B) In light of the contents and progress of the lawsuit as seen earlier, it is difficult to view that there is no ground to conclude that multiple buyers, including the defendant, have asserted the cancellation or cancellation of the contract until the judgment in the related lawsuit became final and conclusive. Thus, it is difficult to view that the rate of late payment charges for the above period as it is necessary to reduce the above period as much as there is sufficient room to deem that the buyer has caused the loss of fairness by imposing unfair pressure on the buyers. However, reducing the estimated rate of late payment rate of 6% per annum for creditors who are merchants is merely ordering the payment of commercial interest rate of 190 as a matter of course, thereby denying the agreement on the estimated amount of damages itself (see Supreme Court Decision 90Meu7262, Nov. 9, 190). However, after the judgment in the related lawsuit becomes final and conclusive, it is reasonable to view that there is a reasonable ground to reduce the agreed rate of late payment from 200 days to 160% per 197, 2017.

C) The defendant's above assertion is justified within the above scope of recognition.

C. Sub-committee

Ultimately, with respect to the Plaintiff KRW 344,79,179, and KRW 109,912,00 among them, the Defendant is obligated to pay damages for delay calculated at the rate of KRW 46 million per annum from January 1, 2013 to October 27, 2016, and damages for delay calculated at the rate of KRW 15.96% per annum, which is the rate from the next day to the date of the closing of argument in the trial, and from the next day to the date of full payment, to the date of full payment; KRW 19,527,631 per annum from January 1, 2013 to November 24, 2016; KRW 15% per annum from the next day to the date of full payment; KRW 15% per annum from the next day to the date of full payment; and KRW 215,359,548 per annum from the date of full payment to 30% per annum from September 25, 2015 to 2015.

5. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as without merit. Since the judgment of the court of first instance is partially unfair with the conclusion, the part against the defendant in excess of the above recognition amount shall be revoked by partially accepting the defendant's appeal, and the part against the defendant in excess of the above recognition amount shall be revoked, and the defendant's remaining appeal shall be dismissed, and it

Judges Kim Jong-chul (Presiding Justice) Kim Tae-ho et al.