(영문) 부산지방법원 2018. 1. 11. 선고 2017가합127 제6민사부 판결

1. The defendant shall pay to the plaintiff 80 million won and interest interest rate of 6% per annum from May 25, 2017 to January 11, 2018, and 15% per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

3. Paragraph 1 can be provisionally executed.

Purport of claim

The defendant shall pay to the plaintiff 1,687,950,000 won with 15% interest per annum from the day following the delivery of a copy of the application for modification of the purport of this case to the day of complete payment.

Reasons

1. Basic facts

(o) The defendant is an agent who is a company engaged in real estate sales agency, etc., and is an implementer of the C Regional Housing Association, which is the implementer of the project (hereinafter referred to as the "project in this case") of the Seoul District Housing Association (hereinafter referred to as the "multi-unit housing in this case") in the B Day of Ulsan-gun, Ulsan-gun, Ulsan-gun, Seoul, to take charge of each type of authorization and permission related to the project in this case, the purchase of land, and the affairs of consent to recruit members.

B. On January 13, 2016, the Plaintiff entered into a contract with the Defendant (hereinafter “instant contract”).

The purpose of this contract is to facilitate the project and ensure successful completion of the project by providing the plaintiff with professional business planning and advice, etc. with respect to the PM business affairs of the above regional housing association.Article 1 1 / [the purpose of this contract] / The purpose of this contract is to facilitate the project and ensure the successful completion of the project by carrying out the PM business of the above regional housing association and providing the plaintiff with professional business planning and consultation.Article 2 / [the scope of business] The defendant shall carry out the PM of the object at the same time as the defect and at the same time give the plaintiff the right and duty to review the object.--A-A-I-B project cost (diversified forms of financing such as investment, loan, etc.) and the business owner's selection No. 3 of the construction company's selection No. 5, an agency selection, advertising agency selection, and removal company's selection.

C. Meanwhile, on March 7, 2016, the promotion committee of the regional housing association, the Asian Trust Co., Ltd., and the Defendant drafted a contract for acting as Reference Fund Management. According to the above contract, the promotion committee of the regional housing association and the Defendant’s duties in the instant project include the following:

O C 지역주택조합 주진위원회의 의무▪본 사업의 각종 인.허가(변경 포함) 업무, 인.허가 조건의 이행▪사업계획승인 신정시까지 사업부지에 대한 소유권 확보(제3자의 권리 맞 사업부지상 제한권리 말소 포함) 및 제3자의 제한물권 설정 방지▪홍보관(모델하우스) 건립.운영▪공사, 설계, 감리 등 제계약 제결 및 대가 지급▪본 사업 관련 소요자금 조달(사업부지 매입비 및 사업비 등 포함)▪조합원 모집.관리, 광고.홍보, 준공 후 입점.사후관리 운영책임 등 제반 업무▪본 사업의 준공 맞 소유권 이전▪본 사업에 대한 조합원의 중도금 대줄에 대한 협조▪기타 본 사업의 시행자로서 제반 업무O 피고의 의무▪사업부지 매입계약, 인.허가(변경 포함), 홍보관(모델하우스) 건립.운영, 조합원 모집.관리 등 본 사업 시행을 위한 C 지역주택조합 주진위원회의 업무지원, 기타 C 지역주택조합 주진위원회의 제반 업무 협조▪조합원들의 조합원 부담금 중 중도금에 대한 재무(금융기관의 중도금 대줄)에 대하여 연대보증▪기타 본 계약에서 정한 업무 및 본 사업의 C 지역주택조합 주진위원회의 업무지원을 위하여 필요한 일제의 업무

D. On March 8, 2017, the C Regional Housing Association Promotion Committee applied for the authorization to establish a housing association on the premise that 1,011 members were recruited from among the 1,973 households scheduled to be constructed, but withdrawn on March 21, 2017. On April 3, 2017, the C Regional Housing Association applied for the authorization to establish a housing association on the premise that 1,023 members were recruited from among the 1,973 households scheduled to be constructed, and withdrawn on May 12, 2017, and obtained the authorization to establish a housing association under the Housing Act on August 17, 2017.

【In the absence of dispute over the ground for recognition, entry in Gap out of Gap's 1 through 3, and 43 (including branch numbers for those with serial numbers; hereinafter the same shall apply), fact-finding with the Ulsan Metropolitan City Ulsan Metropolitan City, the whole purport of the pleading, and the purport of the whole pleading

2. The parties' assertion

A. The plaintiff

The plaintiff has successfully performed most of the duties under the contract of this case and completed the work, and the defendant is obligated to pay the contract amount under the contract of this case to the plaintiff.

B. Defendant

1) The Plaintiff did not perform its duties under the instant contract.

2) From May 2016, the Plaintiff spreaded the Defendant’s will visa to the extent that the business fund is useful, and arranged the office room from June 10, 2016, and did not leave the office. Around August 23, 2016, the Plaintiff made reasons for not being able to maintain the trust relationship by illegally entering the office and intending to steals materials. Since the contract was reversed due to such reasons attributable to the Plaintiff, the Defendant is not obliged to pay the service cost.

3. Determination

A. Whether the contract of this case is terminated

1) Whether the instant contract is terminated upon completion of the business

A) The Plaintiff asserts that all obligations under the instant contract were performed, and the Defendant unilaterally reversed the instant contract. Therefore, first of all, the Plaintiff is deemed to have terminated the instant contract by performing all obligations under the instant contract.

B) The following facts are acknowledged by comprehensively taking account of the overall purport of the arguments and arguments that have no dispute between the parties or that of the aforementioned evidence.

(1) The C Regional Housing Association Promotion Committee bears various duties such as various kinds of affairs necessary for the instant project, the duty to secure ownership of the project site until the application for approval of the project plan, the duty to build and operate a model house, the duty to raise funds for the instant project including expenses for purchase and operation of the project site, the duties to recruit and manage association members, post-construction costs, follow-up sales costs, and follow-up management, the duty to cooperate in the completion and transfer of ownership of the instant project, and the duty to cooperate in loans for part payments

(2) Under a contract with C Regional Housing Association Promotion Committee, the Defendant performed all of the above tasks necessary to support the entire tasks of the C Regional Housing Association Promotion Committee.

(3) When entering into the instant contract with the Plaintiff, the Defendant determined the Plaintiff’s scope of business as the consultation and investigation activities on the overall project of the instant case, project costs (diversified forms of funds such as investment, loan, etc.), seeking business promotion plans, consultation on the selection of the contractor, the selection of the sales agency, the selection of the sales agency, the selection of the removal agency, and other services necessary for the instant project.

(4) The purpose of the instant contract agreed by the Plaintiff and the Defendant is to “the successful completion of the instant project,” and the service period is until the Defendant maintains the status of the agent in the relevant project area.”

C) The following circumstances are revealed in addition to the aforementioned macro evidence and the purport of the argument in the facts of recognition, namely, ① the committee for promotion of a regional housing association, after obtaining authorization to establish a housing association under the Housing Act, planned subsequent procedures, such as approval of a project plan, acceptance of infrastructure, additional securing of housing site ownership, and construction of housing. ② The Defendant’s business also includes the Defendant’s duty to transfer ownership after the completion of the instant apartment house, workroom occupants, and follow-up management; ③ the Plaintiff entered into the instant contract on behalf of the Defendant, with the purpose of the successful completion of the instant project; ③ the Plaintiff entered into the instant contract on behalf of the Defendant; and ④ the Defendant agreed to enter into the instant contract while maintaining the status of the agent; ④ the Plaintiff was performing the instant project only for the recruitment of its members, and the Plaintiff did not proceed with the required legal administrative procedures (the Plaintiff did not obtain authorization to establish the housing association), and the Plaintiff was unable to accept the Plaintiff’s duty to remove the Plaintiff’s business explicitly designated as the scope of its business. Accordingly, the Plaintiff’s duty to investigate the Plaintiff’s project is difficult to complete the instant contract.

2) Whether the contract of this case was terminated

Meanwhile, according to the contract of this case (Article 3(3) of the contract of this case), the Plaintiff did not work from June 2016 to the Defendant office even though the Plaintiff had been in close consultation with the Defendant and had been in work as the Defendant office, and around that time, the Plaintiff deemed to have been in full in his work and notified the Defendant that “the Plaintiff would be waiting to avoid part of his work.” The Plaintiff consistently asserted that the obligation of the Plaintiff under the contract of this case was completed in the instant lawsuit, and the fact that the Plaintiff consistently asserted that the obligation of the Plaintiff under the contract of this case was completed is recognized by either dispute between the parties or by adding the purport of the entire pleading to the statement on the first floor No. 22. Each party to the delegation contract of this case may terminate the delegation contract at any time without any special reason pursuant to Article 689(1) of the Civil Act. According to the above facts, the Plaintiff expressed his intention not to perform the obligation under the contract of this case to the Defendant. Thus, the contract of this case was terminated on June 20

B. The occurrence and amount of the claim for remuneration under the instant contract

1) Occurrence of a claim for remuneration

Even when a delegation contract is terminated, the delegating is obligated to pay reasonable remuneration and pay reasonable administrative expenses to the Plaintiff, taking into account various circumstances, such as the degree and difficulty of the affairs performed by the mandatary until the contract is terminated, the degree of efforts made by the mandatary to handle the affairs, the benefits of the mandators with respect to the affairs handled, etc. (see, e.g., Supreme Court Decisions 2010Da52584, Jun. 14, 2012; 2013Da32673, Aug. 23, 2013). Therefore, if the Plaintiff performed administrative affairs pursuant to the instant contract, if there are parts related to the performance of the affairs performed by the Plaintiff, the Defendant is obligated to pay reasonable remuneration and reasonable expenses for handling the affairs corresponding thereto to the part.

(ii)amount of reasonable remuneration and expenses for processing affairs;

A) Administration conducted by the Plaintiff

In the project of this case, it appears that the business of this case is essential for the collection of consent forms of residents living in the region, the construction of model housing, the selection of related business entities, the progress of the project, etc., and the plaintiff requested the representative director E to raise approximately KRW 880,000,000 to the defendant as free of charge, and the above Section D was also selected as the sales agent of the project of this case. The defendant has completed the model housing construction without intention. The plaintiff attempted to present the marketing strategy, present the appropriate sales price, offer the goods development proposal, etc., and actually conducted the apartment housing design or the establishment of sports facilities, and the advertising agent recommended by the plaintiff. The defendant did not submit to the plaintiff the construction design plan, construction size review, funding plan, promotional proposal, construction design plan, price design plan, and plan analysis, etc., the plaintiff's request for the construction project of this case to the plaintiff and the related construction agent of this case, and the plaintiff could not reach the conclusion of the contract between the plaintiff and the related construction agent of this case.

(B)the calculation of a reasonable amount;

On the other hand, there is no dispute over the fact that the service cost to be paid by the Defendant to the Plaintiff is set at KRW 1.5 million per unit, but the above service fee agreement is set on the premise that the Plaintiff performed all the duties during the contract period. Thus, it is difficult to conclude the failure of the Plaintiff’s business prior to the termination of the contract in consideration of various circumstances such as the degree and difficulty of the Plaintiff’s work performed by the Plaintiff, degree of effort made to handle the affairs, and profits he/she has with respect to the processed affairs. The principal duties performed by the Plaintiff are identical to the facts recognized earlier. While the Plaintiff entered into the contract in this case for the purpose of the successful completion of the project in this case, the Committee for Promotion of Local Housing Association (C) did not obtain the authorization of the partnership while it performs its business, and it did not obtain the approval of the project plan up to 1,973 households, and the recruitment of members was made only 1,032 households among the 1,973 households, and the project performed by the local housing association at the time of termination of the contract in this case by 0000.

3) Sub-determination

Therefore, the Defendant is obligated to pay to the Plaintiff damages for delay calculated at each rate of 6% per annum under the Commercial Act from May 25, 2017 to January 11, 2018, which is the day following the day on which the Defendant served a copy of the application for modification of the purport of the instant claim that the Plaintiff seeks against the Plaintiff, and from the day following the day on which the Defendant served the application for modification of the purport of the instant claim, to the day on which the Defendant becomes liable for dispute as to whether or not the Defendant is liable for performance obligations, and 15% per annum under the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from

4. Supplementary matters:

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