Plaintiff 1 and one other (Attorney Kim Sung-sung, Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm Chang-Gong, Attorneys Do-hwan et al., Counsel for the defendant-appellant)

January 11, 2017

Daegu District Court Decision 2015Gahap89 decided April 21, 2016

1. Of the judgment of the court of first instance, the part against the plaintiffs falling under the following order of payment shall be revoked.

The Defendants jointly pay to the Plaintiffs 110,000,000 won with 5% interest per annum from April 24, 2015 to February 8, 2017, and 15% interest per annum from the next day to the day of full payment.

2. All remaining appeals by the plaintiffs are dismissed.

3. Of the total litigation costs, 50% is borne by the Plaintiffs, and 50% is borne by the Defendants.

4. The part ordering the payment of money under paragraph (1) may be provisionally executed.

The judgment of the first instance is revoked. The Defendants jointly and severally pay to the Plaintiffs 220,000,000 won with 20% interest per annum from the day following the delivery date of the copy of the complaint of this case to the day of full payment.

1. Basic facts

A. Of the two parcels of land (hereinafter “instant land”) owned by ○○○○○○○○○ Branch (hereinafter “the same clan”). Nonparty 2, Nonparty 3, and Nonparty 4, the cause of a clan, have completed the registration of ownership transfer in the name of Nonparty 2, Nonparty 3, and Nonparty 4 regarding the size of 504 square meters prior to Kimcheon-si (hereinafter “the instant land”). As for the size of 454 square meters, the registration of ownership transfer (However, Nonparty 2 and Nonparty 52 are written as the representative of the clan) was completed in the name of the said clan.

B. On February 1, 2015, the Defendants’ husband and wife entered into a contract with the said clan to purchase the instant land from the said clan with KRW 1.30 million [the amount of KRW 1.10 million for the remainder of KRW 920 million for the contract amount and KRW 920 million for the remainder of KRW 920 million for the said clan (the payment date) (hereinafter “the first loan contract”), and paid the down payment of KRW 10 million for the said clan on the same day.

C. On February 15, 2015, immediately after the conclusion of the first contract, Defendant 1 (Seoul) was used as cerebrovascular and was in an unknown state. On February 4, 2016, Defendant 1 (the Nonparty, No. 500, No. 13, No. 2015) appointed Nonparty 1 (the Nonparty) who was an infant as his/her guardian upon commencement of adult guardianship against Defendant 1 (the Nonparty, No. 2015, No. 500, No. 13).

D. When Defendant 1 was unable to implement the first contract because his consciousness is unknown, Defendant 2 (C) sought a person who would purchase the instant land on behalf of the Defendants, along with Nonparty 6 (the broker assistant, Nonparty 7) who arranged the first contract around March 2015, and decided to transfer the status of purchaser of the first contract to the Plaintiffs and their spouses who agreed to purchase the instant land through the introduction of Nonparty 8.

E. On March 17, 2015, the Plaintiffs’ couple concluded a contract with the Defendants’ husband and wife (However, since Defendant 1 was unable to attend, Defendant 2 and Nonparty 1 on behalf of Defendant 1) under which the Plaintiffs would transfer the status of purchaser of the first contract from the Defendants (hereinafter “the second contract”), and paid the Plaintiffs KRW 110 million to Defendant 2. The second contract is paid KRW 110 million out of the purchase price to be paid by the Plaintiffs (the payment date) and the intermediate payment of KRW 50 million (the payment date, March 17, 2015), and the remainder of KRW 420 million (the payment date, March 17, 2015) and the remainder of KRW 420 million (the payment date, March 17, 2015) to the assignee (the transferee of the Plaintiff) in the case of violation of the first contract.

F. On April 6, 2015, the Plaintiffs sent to the Defendants, “At the time of concluding the secondary contract, the Plaintiffs prepared KRW 500 million to pay intermediate payments after confirming the relationship between the owner of the land and the representative of the clan and the registered name thereof, but did not appear by the landowner, and did not receive the part payments due to the lack of the landowner’s personal information and the copy of the land register so that the Defendants would cancel the secondary contract due to the reasons attributable to the Defendants.”

G. On April 16, 2015, the above clan sent to Nonparty 2, Nonparty 5, Nonparty 3, and Nonparty 4 with a content-certified mail (Evidence A No. 13-1) to the effect that the payment of KRW 500 million was delayed due to the purchaser’s circumstances after the first contract, and that the payment of KRW 500 million was delayed due to the fact that the payment of the intermediate payment requested to be deposited into the account of the above clan was delayed. Accordingly, the plaintiffs sent to the above Nonparty 2, etc. on April 20, 2015, and argued that the cancellation of the second contract is erroneous and that “the contract cannot be paid because there was no legal relation between the plaintiffs and the above clan,” and filed a lawsuit against the defendants for the cancellation of the second contract with the Defendants on the same day.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 5, 8, 13, 14 (including additional numbers; hereinafter the same shall apply), Eul evidence Nos. 11, 13, and the purport of the whole pleadings

2. Restoration due to cancellation of a contract and request for penalty;

A. The plaintiffs' assertion

The Defendants are not only obligated to obtain the consent for the transfer of the status of the purchaser from the foregoing clan as the seller of the first contract, but also to confirm the resolution of the general meeting of the said clan, the authenticity of the representative, and the title trust relationship. However, the Defendants did not have the representatives of the said clan present at the time of the conclusion of the second contract, but did not perform the above obligations. Since April 6, 2015, the Plaintiffs notified the Defendants of the cancellation of the second contract on the grounds of the Defendants’ nonperformance of obligations as above. Accordingly, the second contract was rescinded, and the Defendants are obligated to pay the Plaintiffs the down payment amount of KRW 20 million and delay damages, which is the sum of the down payment, in accordance with the penalty provisions of the second contract.

B. Determination

In general, the acquisition of a contract aimed at succession to the status of a contracting party is a contract that one of the parties to the contract comprehensively transfers to a third party and withdraws from the contractual relationship and succeeds to the status of a third party through an agreement of the parties to the contract. However, it is common that one of the parties to the contract intends to comprehensively transfer to a third party and withdraw from the contractual relationship. However, it is possible to agree by two of the parties to the contract, and the other parties agree or consent thereto, and it is not necessarily required to express consent or consent of the other parties, and it is also possible by implied declaration of intention (see Supreme Court Decision 2009Da4521, 45238, Oct. 29, 2009).

As seen earlier, since the secondary contract constitutes a contract acceptance aimed at the succession of the status of the purchaser of the primary contract, the Defendants are obligated to transfer the status of the purchaser of the primary contract. It is insufficient to recognize that the aforementioned facts recognized and the statements and images of Gap Nos. 2, 4, 11, 14, and 16 are sufficient to establish that the Defendants agreed to assume special obligations, such as the above clan consent or the performance of the obligation to register ownership transfer. Since there is no other evidence to acknowledge this, the above plaintiffs' assertion premised on this premise is without merit without any further review (the consent of the original clan is a valid requirement for the acquisition of a contract, and it is only limited to the absence of the above consent).

3. Requests for the return of unjust enrichment due to the invalidity of a contract.

(a) Nullity of a contract by an unauthorized representation;

As seen earlier, on February 15, 2015, immediately after the conclusion of the first contract, Defendant 1 (Seoul) was used as cerebral blood and was in an unidentified state. Defendant 2 and Nonparty 1, the wife, entered into a second contract on behalf of Defendant 1 on March 17, 2015 with the Plaintiffs on behalf of Defendant 1, and Defendant 1 was appointed as an adult guardian ( Nonparty 1) on February 4, 2016.

According to the above facts of recognition, since Defendant 2 or Nonparty 1 entered into a secondary contract on behalf of Defendant 1 who is a person without mental capacity and is unable to grant the power of representation, the part on Defendant 1 among the secondary contracts entered into by an unauthorized representative is null and void (Article 130 of the Civil Code). Since there is no circumstance that even if the parties did not have the above null and void part, it shall be deemed that only the secondary contract on Defendant 2 was entered into, it shall be deemed null and void in its entirety (Article 137 of the Civil Code).

Therefore, barring any special circumstance, the Defendants are obliged to pay the down payment and damages for delay to the Plaintiffs by returning unjust enrichment arising from the invalidity of the above contract.

B. Determination of the defendants' assertion of ratification

A) The parties’ assertion

The Defendants asserted that, at the time of the second contract, the second contract cannot be withdrawn because they had already been aware of Defendant 1’s office capacity and the act of unauthorized representation by Defendant 2, etc., and that the second contract is valid since Nonparty 1, appointed as an adult guardian by Defendant 1, ratified the above act of unauthorized Representation by serving documents on March 15, 2016. Accordingly, the Plaintiffs did not know the above act of unauthorized Representation at the time of the second contract, and the Plaintiffs already withdrawn the second contract by unauthorized Agent before the ratification by the adult guardian, and therefore, the adult guardian cannot be ratified.

B) Determination

(1) A contract made by a person without power of representation by another person may be withdrawn by the other party to the contract as his/her agent until the ratification is made by the other party (main sentence of Article 134 of the Civil Act): Provided, That if the other party becomes aware at the time of the contract that he/she was a person with limited capacity, such withdrawal may not be withdrawn (proviso to Article 134 of the Civil Act). If the other party withdraws, the act of unauthorized Representation becomes null and void definitely

(2) On September 17, 2015, the Plaintiffs asserted the withdrawal of the secondary contract based on the act of unauthorized representation as above by means of the statement on the date of fourth pleading of the first instance court and the service of the briefs as of October 14, 2015 (the service date), and the fact that Nonparty 1, appointed as an adult guardian of Defendant 1, asserts that the act of unauthorized representation is ratified by the service of the briefs as of March 15, 2016 (the service date), is clearly indicated in the record.

According to the above facts, since the plaintiffs withdrawn the secondary contract by the above act of unauthorized Representation before ratification of the above act of unauthorized Representation, the adult guardian of defendant 1 cannot be ratified.

(3) The Defendants asserts that at the time of the second contract, the Plaintiffs could not withdraw because they had already been aware of Defendant 1’s capacity to act as a non-exclusive agent by Defendant 2, etc.

According to the evidence Nos. 16 and 6 of the evidence Nos. 16 and the testimony of Non-Party 7 of the first instance court, it is recognized that Defendant 2, Non-Party 1, and Non-Party 7, an intermediary assistant, transferred the status of purchaser of the first contract to the plaintiffs at the time of the second contract, and that “Defendant 1 transferred the status of purchaser of the first contract to the plaintiffs due to Defendant 1’s health problems. Defendant 1 is currently in hospital because of inconvenience at present.”

However, it is difficult to believe that Defendant 2, etc., at the time, notified the Plaintiffs that “Defendant 1 was unable to be in the state of office capacity,” and that part of the evidence Nos. 12, corresponding thereto, was written in which Nonparty 1’s unilateral statement is the same as the parties. In light of the following circumstances recognized by the respective descriptions of the evidence Nos. 2, 4, 11, 13, and 16 and the overall purport of the film and pleading, it is insufficient to recognize the above points solely by the statements of the evidence Nos. 1 through 13 and the testimony of Nonparty 7 of the first instance trial witness. Thus, the Defendants’ above assertion is without merit.

(1) All documents pertaining to the secondary contract do not include all the health or food conditions of Defendant 1 in the documents.

② The Defendants asserted in the Defendant’s reply from May 25, 2015, which was first submitted in the instant case, that “Defendant 1’s health has deteriorated rapidly and became in an impossible situation,” and did not assert as to Defendant 1’s food condition.

③ On September 17, 2015, at the fourth date for pleading of the first instance trial, the Plaintiffs heard the testimony from Nonparty 7 to the effect that “Defendant 1 was used in a brain stroke after concluding the first contract, so he/she was in an unidentified state,” and immediately asserted the withdrawal of the second contract on the ground that Defendant 1’s medical capacity as well as Defendant 1’s act of unauthorized representation by Defendant 2, etc.

C. Judgment on the defendants' assertion of violation of the principle of good faith

The Defendants asserted that, even if they concluded the second contract with the knowledge of the circumstances that “the Plaintiff is represented by Defendant 2, etc. due to Defendant 1’s office capacity” at the time of the second contract, it is not permissible in violation of the principle of good faith or the principle of trust and good faith to assert the invalidity of the contract on the ground of non-exclusive representation. However, as seen earlier, it is difficult to recognize that “the Plaintiff was aware of Defendant 1’s office capacity at the time of the second contract.” Thus, the Defendants’ above assertion premised on this premise is without merit.

As above, as long as the plaintiffs received the allegation of invalidation due to the unauthorized representation, the remaining arguments in the selective relationship (e.g. withdrawal of acceptance of a contract, cancellation due to deception or mistake, and cancellation due to changes in circumstances) shall not be separately determined.

D. Sub-determination

Therefore, the Defendants jointly file a claim against the Plaintiffs regarding the existence and scope of the above contract deposit amounting to KRW 110,00,000 as a result of the return of unjust enrichment resulting from the invalidation of a contract, and as to this, from April 24, 2015 to February 8, 2017, the date following the delivery date of a copy of the complaint of this case, which is the notification date of performance demand, the Defendants shall be 5% per annum under the Civil Act until February 8, 2017; Article 3 of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings; Article 3(1) main sentence of Article 3(1) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings (amended by Presidential Decree No. 26553, Sep. 25, 2015; effective Oct. 1, 2015); and Articles 1 and 2(2) of the Addenda of this Act, each of the Defendants shall pay damages for delay calculated at the rate of 15%.

4. Conclusion

Therefore, the plaintiffs' claims against the defendants shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed without merit. Since the part against the plaintiffs falling under the part of the judgment of the court of first instance ordering the payment of the above recognized money is unfair with different conclusions, the above part shall be revoked, and the payment of money recognized in the court of first instance shall be ordered, and all remaining appeals by the plaintiffs shall be dismissed without merit. It is so decided as per Disposition.

Judges Jin Sung-chul (Presiding Judge) Kim Tae-tae