Plaintiff (Law Firm Jyeong, Attorneys Kim Jong-dong et al., Counsel for the plaintiff-appellant)

Postal Sports Leisure Co., Ltd.

April 7, 2010

Seoul Central District Court Decision 2009Kahap20647 Decided July 24, 2009

The plaintiff's appeal is dismissed.

Expenses for appeal shall be borne by the plaintiff.

The defendant shall pay to the plaintiff 125,792,434 won with 5% interest per annum from November 10, 2005 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the full payment date.

Of the judgment of the court of first instance, the part against the plaintiff falling under the following shall be revoked. The defendant shall pay to the plaintiff 125,792,434 won with 5% per annum from November 10, 2005 to the ruling of the court of first instance, and 20% per annum from the next day to the date of full payment.

1. Basic facts

【Facts without any dispute, Gap 2-3 evidence, Eul 2-2 evidence, and the testimony of non-party 1 as a witness of the trial court

A. On November 25, 2003, the Defendant entered into a sales agency contract with the non-party 1 on an officetel 160 households and neighborhood living facilities (hereinafter “instant building”) with the authority to conclude the sales contract with the non-party 1 to carry out the sales agency business with the non-party 1 and to receive the commission from the defendant according to the sales performance.

B. On March 8, 2004, the Plaintiff and Nonparty 1, a sales agent, sold at KRW 155,29,349 the sales price of the instant building at KRW 416 (hereinafter “instant real estate”). However, the Plaintiff concluded a sales contract with the Defendant to recognize only the deposit amount in the deposit account in the foreign exchange bank (Account Number omitted) (hereinafter “instant sales contract”).

C. Upon Nonparty 1’s request, the Plaintiff received the third intermediate payment of KRW 15,529,90 on August 12, 2005, the first intermediate payment of KRW 23,294,902 on May 10, 2004, and the second intermediate payment of KRW 23,294,902 on August 30, 2004, and the third intermediate payment of KRW 15,529,935 on December 17, 2004, and the fourth intermediate payment of KRW 15,529,935 on April 15, 2005, KRW 15,529,935, KRW 15,529, KRW 935 on August 12, 2005, KRW 15,529, KRW 935 on November 10, 205, the Plaintiff received the third intermediate payment of KRW 15,529,249,2945.

2. The plaintiff's assertion

A. Nonparty 1 entered into the instant sales contract with the Plaintiff as an employee of the Defendant, or as a legitimate representative delegated by the Defendant with the authority to conclude the sales contract and to receive the sales price, and thereafter, received the sales price under the instant sales contract on behalf of the Defendant from the Plaintiff.

B. Even if Nonparty 1 is not an employee of the Defendant or a lawful agent, the Defendant indicated that the power of representation should be granted to the Plaintiff, pursuant to Article 125 of the Civil Act, or Article 125 of the Civil Act, or to Nonparty 1 deliver the Defendant’s certificate of personal seal impression, seal impression, receipt, and receipt, and deliver the Defendant’s office, and have the Defendant use the Defendant’s office and receive the sales price from the place. After the conclusion of the instant sales contract, there was a justifiable reason to believe that the Plaintiff was the authority to conclude the sales contract and the authority to receive the sales price as to the express agent, which exceeded Nonparty 1’s authority, by issuing the membership certificate and membership card, and giving guidance to move in. Accordingly, pursuant to Article 126 of the Civil Act, the effect of the conclusion of the instant sales contract and the receipt of the sales

C. However, even after April 30, 2007, the expiration date of the occupancy period stipulated in the instant sales contract, the Defendant delayed the execution due to the delivery of the instant real estate to the Plaintiff or the completion of the registration of transfer of ownership thereof. On July 4, 2007, the Defendant completed the registration of collateral trust in the name of the Copic assets trust company as to the instant real estate on July 4, 2007, and eventually, the Defendant’s obligation to transfer ownership pursuant to the instant sales contract

D. Therefore, the Plaintiff cancelled the instant sales contract by the delivery of the copy of the instant complaint for reasons of the Defendant’s delay of performance or impossibility of performance. Thus, the Defendant primarily is obligated to pay to the Plaintiff the total sum of KRW 124,239,44 won paid by the Plaintiff due to the cancellation of the instant sales contract and KRW 125,792,434 (a contract deposit 10%) as well as the penalty of KRW 1,552,990 (a contract deposit) as set forth in the instant sales contract, and as long as Nonparty 1, who is the Defendant’s employee, arbitrarily consumes the sales price received from the Plaintiff and inflicted damages on the Plaintiff, the Defendant is liable to compensate the Plaintiff for the damages equivalent to the same

3. Determination

A. Formation of the instant sales contract

According to the facts of recognition, as long as Nonparty 1 was granted the authority to conclude the instant sales contract on the instant building by the Defendant and concluded the instant sales contract with the Plaintiff, the instant sales contract was duly established between the Plaintiff and the Defendant.

B. Judgment on the Plaintiff’s primary assertion

In this case, we examine whether the Plaintiff had the right to rescind the instant sales contract, namely, whether the Plaintiff’s payment of the sales price to Nonparty 1 was effective for the Defendant, and thereby, whether Nonparty 1 can be deemed to have the right to receive the sales price under the instant sales contract, for the purpose of examining whether Nonparty 1 had the right to receive the sales price in question.

First, we examine whether Nonparty 1 received the right to receive the sale price from the Defendant. Since the scope of the right to representation is determined by the granting of the power of representation, it is determined by the content and interpretation of individual authorization act (see Supreme Court Decision 93Da39379, Feb. 8, 1994). In this case, according to the facts acknowledged above, the payment of all proceeds, such as down payment, intermediate payment, remainder payment, late payment, etc., by the instant contract for sale, is recognized only to the designated deposit account in the foreign exchange bank. Thus, it is obvious in accordance with the language and text of the instant contract for sale, and it is insufficient to recognize that Nonparty 1 did not have the right to receive the sale price in addition to the right to conclude the instant contract for sale, it is insufficient to recognize that the testimony of Nonparty 1 by the witness of the court of first instance has granted the right to receive the sale price to Nonparty 1, and there is no evidence to recognize otherwise. Therefore, the Plaintiff’s assertion that Nonparty 1 was granted the right to receive the sale price from the Defendant is without merit.

Next, there is no evidence to prove that the defendant has given to Nonparty 1 the right of representation as to the assertion of representation by the indication of granting the power of representation (Article 125 of the Civil Code), and that this part of the plaintiff's assertion is without merit.

Finally, it is recognized that there was a basic power of representation, which is the premise for the conclusion of the sales contract of this case, as long as the non-party 1 obtained the power of representation from the defendant to the non-party 1 as to the assertion of representation beyond the authority (Article 126 of the Civil Code). Furthermore, in light of whether the non-party 1 was entitled to receive the sales price, which is a legal act other than his authority, the plaintiff paid the sales price of this case to the non-party 1 at the request of the non-party 1, even though the contract of this case was stipulated to be recognized as only the deposit account of the foreign exchange bank, the plaintiff paid the sales price to the non-party 1 in cash. Thus, it is not reasonable to believe that the plaintiff was not entitled to receive the sales price of this case from the non-party 1, the plaintiff's right of representation and the non-party 1 to receive the sales price of this case without confirming the intention of granting the power of representation of the defendant to the non-party 1, who is the party 1.

Ultimately, although the plaintiff paid the sale price to the non-party 1 in cash, this is merely a payment to the non-party 1 who has no authority to receive the sale price in connection with the sale contract in this case, so long as the plaintiff cannot be held liable for delay of payment or impossibility of performance on the premise of lawful payment, the plaintiff's assertion on restitution and claim for payment of penalty following the cancellation of the sale contract in this case

C. Judgment on the plaintiff's conjunctive assertion

The plaintiff asserts that the non-party 1 is liable for damages against the defendant on the premise that the non-party 1 is the defendant's person who is the defendant. However, it is not sufficient to recognize the non-party 1 as the defendant's person who is the defendant's person who is the defendant, and there is no other evidence to acknowledge it, and the plaintiff'

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed and it is so decided as per Disposition.

Judges Lee Ki-taik (Presiding Judge)