Civil iron and two others (Attorney Park Jong-ho et al., Counsel for the plaintiff-appellant)

Defendant 4

Defendant 5 (Attorney Kim Jong-soo et al., Counsel for the defendant-appellant)

Defendant 1 and two others (Law Firm Barun, Attorneys Park Jae-ho et al., Counsel for the defendant-appellant)

March 14, 2006

Incheon District Court Decision 2003Gahap13037 Delivered on March 30, 2005

1.The judgment of the first instance shall be modified as follows:

A. For the plaintiffs:

(1) Defendant 4 shall pay 152,255,00 won with 5% interest per annum from March 11, 2004 to April 18, 2006 and 20% interest per annum from the next day to the day of full payment;

B. The Defendant 1, Defendant 2, and Defendant 3 pay 68,25,00 won among the above amounts with Defendant 4 and each of them, and 5% per annum from March 11, 2004 to April 18, 2006, and 20% per annum from the next day to the day of full payment.

B. The plaintiffs' remaining claims against the defendants 4, 1, 2, and 3 and the claims against the defendants 5 are dismissed, respectively.

2. The plaintiffs' remaining appeals against defendants 4, 1, 2, and 3 and the remaining appeals against defendants 1, 2, and 3 are dismissed, respectively.

3. The costs of lawsuit are assessed against both the plaintiffs and the defendant 4, and 10 minutes of the cost of lawsuit are assessed against the plaintiffs, and the remainder is assessed against the plaintiffs, and the part arising between the plaintiffs, the defendant 1, the defendant 2 and the defendant 3 is assessed against the plaintiffs, the remainder is assessed against the plaintiffs, and the part arising between the plaintiffs and the defendant 5 is assessed against the plaintiffs. The part arising between the plaintiffs and the defendant 5 is assessed against the plaintiffs.

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

1. Purport of claim

The defendants shall pay to each of the plaintiffs 187,392,420 won with 20% interest per annum from the day following the day of the last delivery of the copy of the complaint of this case to the day of complete payment (the plaintiffs have reduced their claim in the trial).

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiffs shall be revoked. The defendants shall pay to each of the plaintiffs 62,217,278 won with 20% interest per annum from the day after the last copy of the complaint of this case is served to the day of complete payment.

Defendant 1, Defendant 2, and Defendant 3: The part against Defendant 1, Defendant 2, and Defendant 3 in the judgment of the first instance court shall be revoked, and each of the plaintiffs' claims against the revocation shall be dismissed.

Defendant 5: Revocation of the part against Defendant 5 in the judgment of the first instance, and the plaintiffs' claims against the revocation are dismissed.

1. Basic facts

The following facts can be acknowledged by taking into account the following facts: Gap evidence 1 through Gap evidence 3, Gap evidence 4-1, 2, Gap evidence 5-1 through 7, Gap evidence 8-1, 2, Gap evidence 12, Gap evidence 13-7, 16, 21, 23, 24, 35, 36, Gap evidence 14, 15, Gap evidence 16-16-1, 16-4 through 18, the testimony of Lee Jong-chul's witness testimony of the first instance court, the results of the fact-finding conducted by the Incheon District Court of Justice of the first instance, the results of the fact-finding conducted by the court of first instance, and the purport of the whole plaintiff Park Jong-ok's argument of the first instance court.

(a) Progress before concluding the contract;

(1) Defendant 1 is a real estate broker who registers and operates a real estate brokerage office in the name of (trade name omitted) at the Incheon reinforced Eup, and Defendant 2 has worked as a broker assistant at the said office.

B. At around 200, Defendant 1 and Defendant 2, from Defendant 4 (○○○○), Defendant 5 and his mother, the mother of Defendant 4 (hereinafter “instant real estate”) requested brokerage to sell 7,686 square meters of forest land (number omitted) and 7,686 square meters of forest land (number omitted) in Incheon-do and Samsung-ri (number omitted) 600 square meters of land (hereinafter “instant real estate 2”).

On the other hand, from May 200 to May 200, the plaintiffs expressed that the first real estate of this case and the second real estate of this case (hereinafter "each of the real estate of this case") were sold in lots by Defendant 3, who had known and known the plaintiff Park Jong-man and the private iron, would have had an intention to purchase it. On July 2003, 200, the plaintiffs requested the third party to jointly purchase each of the real estate of this case, and around that time, to arrange the sale and purchase of each of the real estate of this case.

B. The process that Defendant 4 led to the disposal of each real estate of this case

(1) Defendant 4, before 1997, was aware of the existence of each of the instant real estate, and received a tax payment notice from the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office.

D. Defendant 4 visited the Incheon District Court's reinforcement registry office and the office of the strengthened Gun to obtain a copy of the register and the land cadastre of each of the instant real estate. The copy of the register was written by the owner as "○○," the address of the owner was not indicated as "Seoul Dongdaemun-dong," but the owner did not indicate the resident registration number of the owner, and the address was written as "Seoul Dongdaemun-gu, Dongdaemun-gu," but the owner did not indicate the resident registration number of the owner. In the meantime, Defendant 4 had never been recorded as "Seoul Dongdaemun-gu, Dongdaemun-gu, Seoul (which was established by the Dongdaemun-gu, 1988, and it was included as "Seoul, Dongdaemun-gu, Seoul)" in several places located for a long time, and thus, Defendant 4 could have purchased each of the instant real estate in his name without notifying her husband in around 1983.

Article 22(1) of the Civil Code No. 1 of the Civil Code No. 2 of the Civil Code No. 2 of the Civil Code No. 2 of the Civil Code No. 2 of the Civil Code No. 2 of the Civil Code No. 2 of the Civil Code No. 2 of the Civil Code No. 3164, May 1998; Article 38(1) of the Civil Code No. 2 of the Civil Code No. 2 of the Civil Code No. 2 of the Civil Code No. 2 of the Civil Code No. 31454, May 198;

In addition, Defendant 4 paid the aggregate land tax imposed on each real estate of this case from May 1998 to October 2003, and Defendant 4 revoked the registration of provisional seizure on March 30, 1999 upon winning a favorable judgment around October 198 through a revocation lawsuit on the registration of provisional seizure in the name of the creditor who was established on each real estate of this case.

(c) Conclusion process;

(1) On July 17, 2003, the Plaintiffs concluded a sales contract on each of the instant real estate at the office of the above (trade name omitted), and paid 168,000,000 won a down payment of KRW 25,000,000 on a fixed date, and paid 143,000,000 a balance of KRW 143,00,000 at the same time as the delivery of documents necessary for the registration of transfer of ownership on August 16, 2003. However, the 2nd real estate of this case agreed to deliver documents necessary for the transfer of rights to a third party designated by the Plaintiffs.

B. On the date of the conclusion of the instant sales contract, Defendant 3 participated in the conclusion of the contract with the above office and Defendant 4 participated in the conclusion of the contract with the above office. Defendant 4 participated in the conclusion of the contract with Defendant 5, which is the second elderly relationship. Defendant 1 is not good body and Defendant 2 was prepared on behalf of Defendant 2, and Defendant 2 retired from the contract.

Defendant 4 was asked by the Plaintiffs regarding the developments leading up to the acquisition of each real estate of this case at the time of the conclusion of the sales contract of this case. Defendant 4 visited and explained the developments leading up to the receipt of the tax payment notice as referred to in the above B, and the fact that he did not possess a certificate of registration due to these circumstances. The above Plaintiffs, Defendant 2, and Defendant 3 did not raise any question about the ownership.

⑷ 피고 2는 위 원고들에게 이 사건 각 부동산의 등기부등본과 피고 4의 주민등록증을 확인시켰는데, 이 사건 계약체결 전인 1999. 2. 5. 등기전산화 작업에 따라 새로운 등기부가 작성되고 같은 달 23. 구 등기부가 폐쇄되면서 새 등기부등본에 소유자의 성명이 한글로 표시된 관계로 위 원고들과 피고 2, 피고 3 등은 등기부에 기재된 소유자와 피고 4가 한자 이름이 틀린 다른 사람이라는 사실을 알지 못하였다. 한편, 피고 2는 중개대상물확인·설명서의 등기부 기재사항을 작성하면서 등기부등본에 소유자의 성명과 주소만이 기재되어 있고 주민등록번호가 기재되어 있지 않은 관계로 원고 박봉만과 민철홍의 동의를 받아 피고 4의 주민등록증에 기재된 주민등록번호 ‘ 30XXXX-생략’와 주소 ‘경기도 고양시 덕양구 화림동 270 은빛마을 (동·호수 생략)’을 각 기재한 후 계약서에 인장을 날인하게 하여 계약체결을 마쳤으나, 등기부에 기재된 주소와 피고 4의 현 주소가 다름에도 불구하고 주민등록초본 등의 대조를 통하여 피고가 등기부에 기재된 주소에 실제로 거주하였는지 여부 등을 확인하기 위한 별다른 절차는 거치지 않았다.

(d) Courses for registration of transfer of ownership;

(1) On August 2, 2003, at the “Non-Party 2’s Certified Judicial Scriveners Office,” designated by the Plaintiffs, Defendant 4 and Defendant 5 received necessary documents for the registration of the transfer of ownership and paid KRW 143,00,000 from Defendant 4. Defendant 3 also received KRW 4,00,000 from the above location and the Plaintiffs as brokerage commission, and delivered KRW 50,000 among them to Defendant 1 and Defendant 2.

D. Meanwhile, the head of the affairs office of the above certified judicial scrivener office has different addresses from those of the plaintiffs and the defendant 4, and it is difficult to register the ownership of the real estate of this case. It was found that the defendant 4 had resided in the implied Dong in Dongdaemun-gu Seoul, Dongdaemun-gu, and the defendant 4 demanded to send the certified copy of the former resident registration to the non-party 3 by issuing the certified copy of the former resident registration. The defendant 4 received the certified copy of the former resident registration and sent it to the non-party 3 by mail.

Article 22(1) of the Civil Act provides that the registration of ownership transfer of each real estate of this case shall be made in accordance with Article 2(1) of the Civil Act, and the registration of ownership transfer of each real estate of this case shall be made in accordance with Article 2(2) of the Civil Act, and the registration of ownership transfer shall be made in accordance with Article 3(2) of the Civil Act. Article 2(1) of the Civil Act provides that the registration of ownership transfer of each real estate of this case shall be made in accordance with Article 2(1) of the Civil Act. Article 3(2) of the Civil Act provides that the registration of ownership transfer of this case shall be made in accordance with Article 2(1) of the Civil Act. Article 2(1) of the Civil Act provides that the registration of ownership transfer of this case shall be made in accordance with Article 2(1) of the Civil Act.

Applicant The Plaintiffs paid KRW 4,510,000,00, including taxes such as acquisition tax and registration tax, to a certified judicial scrivener office on August 2, 2003. On October 27, 2003, the Plaintiff conducted a survey for the restoration of boundary and a survey for partition of real estate No. 1 in this case, and paid KRW 882,420,00 in total for its cost.

(v) On the other hand, the Plaintiffs reselled the instant 2 real estate to Hanjin-gu in KRW 7,000,000, and Defendant 4 completed the registration of transfer of ownership as to the instant 2 real estate by the Incheon District Court’s Reinforcement Registry as of August 25, 2003, under the request of the Plaintiffs.

(e) Cancellation of transfer registration;

위 이전등기 이후인 2003. 9.경 이 사건 각 부동산의 진정한 소유자인 소외 6( ○○희, 주민등록번호 : 52XXXX-생략)가 자신의 소유인 이 사건 각 부동산에 관하여 원고들 및 한흥열의 명의로 소유권이전등기가 되어 있는 것을 발견하고, 2003. 12. 6. 원고들과 한흥열을 상대로 인천지방법원에 소유권이전등기의 말소등기 절차의 이행을 구하는 소송을 제기하여 2004. 3. 25. 승소판결을 받았으며, 그 무렵 위 판결이 확정되었고, 이에 기하여 소외 6( ○○희)은 2004. 5. 11. 이 사건 각 부동산에 관한 원고들 및 한흥열 명의의 소유권이전등기를 각 말소하였다.

2. Determination as to the claim against Defendant 4

A. Duty to reinstate on the ground of cancellation of the instant sales contract

According to the above facts, since the ownership of each real estate of this case, which is the object of the contract between the plaintiffs and the defendant 4 belongs to the non-party 6 (OOI), and the non-party 6 (OOI) actively exercises its right, and it is impossible for the defendant 4 (OOI) to acquire the ownership of each real estate of this case and transfer it to the plaintiffs, the plaintiffs can cancel the contract of this case pursuant to Article 570 of the Civil Code. Thus, the plaintiffs can cancel the contract of this case pursuant to Article 570 of the Civil Code, and it is evident in the record that the plaintiffs expressed their intent to cancel the contract of this case with the defendant 4 on November 1, 2005 that the copy of the application for change of claim and the copy of the application for change of claim was delivered to the defendant 4 on November 3, 2005. Accordingly, the contract of this case is legally cancelled. Accordingly, the defendant 4 is obligated to return the purchase price of this case received to the plaintiffs to its original state.

(b) Liability for damages caused by a tort;

On the other hand, Defendant 4 knew that each of the real estate in this case was owned by administrative agencies such as the Gun Office and Myeon Office, and paid taxes to be imposed on each of the real estate in this case for five years since her husband believed that it may be the real estate purchased in the name of Defendant 4. The fact that Defendant 4 exercised the rights as the owner such as cancelling the provisional seizure registration established on each of the real estate in this case is recognized as above. Thus, Defendant 4 does not know that she did not own the real estate in this case, by intentionally deceiving the plaintiffs, or did not allow the purchase price to be acquired or paid real estate brokerage fees. However, in the process of confirming that each of the real estate in this case was owned by Gun Office and Myeon Office, or in the process of filing a lawsuit seeking cancellation of the provisional seizure, it does not change the plaintiffs' right to the real estate in this case's name, which was lawfully recorded in the register, and it does not change the plaintiffs' name and address as to each of the real estate in this case's name and address.

3. Determination as to the claim against Defendant 5

A. The Plaintiff also asserts that Defendant 5 is obligated to return the purchase price of KRW 168,00,000 as a result of the rescission of the instant sales contract, or to return KRW 168,000,000 in excess of the purchase price received without any legal cause. However, there is no evidence to prove that Defendant 5 either sold in the instant sales contract, or received KRW 168,00,000 from the Plaintiffs without any legal cause. Thus, the above assertion against Defendant 5 on this premise is without merit.

B. In other words, even though Defendant 5 conspired with Defendant 4 that the instant real estate was not owned by Defendant 4, by deceiving the Plaintiffs as if the instant real estate was owned by Defendant 4, and acquired the purchase price, etc. from the Plaintiffs, and even if not known, Defendant 4 should have checked whether Defendant 4 could legally transfer the ownership of the instant real estate as the real owner of each of the instant real estate, and had Defendant 4 enter into the instant sales contract with the Plaintiffs. However, Defendant 4 had neglected to do so and had Defendant 4 think that the instant real estate was owned by Defendant 4 and sold each of the instant real estate in collusion with Defendant 4, and therefore, Defendant 4 was responsible for all damages suffered by the Plaintiffs.

Therefore, first, there is no evidence to acknowledge that Defendant 5 had already known that the instant real estate was not owned by Defendant 4, and then Defendant 5 has the obligation to verify whether Defendant 4 could transfer the ownership of each of the instant real estate to the Plaintiffs as the real owner of the instant real estate. According to the basic facts acknowledged earlier, Defendant 5 was aware of the tax issues of each of the instant real estate upon Defendant 4’s request by Defendant 4, the aged living with the two children of Defendant 4, and attempted Defendant 4 in the process of concluding the instant sales contract. However, it is difficult to conclude that Defendant 5 had the obligation to verify whether Defendant 4 is the real owner of each of the instant real estate, as alleged by the Plaintiffs, and there is no evidence to acknowledge the same. Thus, the above assertion against Defendant 5 is without merit.

4. Determination as to claims against Defendant 1 and Defendant 2

According to the former Real Estate Brokerage Act (Act No. 6236 of Jan. 28, 200), a real estate broker and his/her brokerage assistant are obligated to act as a broker in good faith and sincerity (Articles 16 and 6(1) and (5) of the Act). On the other hand, upon a request for brokerage, a broker is obligated to confirm the relationship of rights of the relevant object, transaction or use restrictions, etc. under Acts and subordinate statutes, and present them in writing to the brokerage client who intends to acquire the right related to the relevant object, and explain them faithfully and correctly (Article 17(1) of the Act). Of the above legal relationship, the matters concerning the right holder of the relevant object are also included in the above legal relationship. Thus, the broker has a duty to investigate and confirm whether a person who intends to sell, etc. by good faith and sincerity is the same person, based on the real estate registration register register and resident registration certificate, etc., and when the broker causes property damage (Article 19(1) of the Act) by intention or negligence of the relevant broker.

However, according to the facts acknowledged earlier, Defendant 1 and Defendant 2 did not possess a registration right certificate, the only document that can prove the actual relationship of rights to the instant real estate, as a real estate broker or intermediary assistant entrusted by the Plaintiffs with the brokerage of each of the instant real estate. Since the address of Defendant 4 as indicated in the copy of the registry of the instant real estate does not coincide with that of Defendant 4, Defendant 4 had the resident registration record submitted to Defendant 4, who had resided in the address indicated in the above copy of the registry, and the contents of the registry of the instant real estate should be examined more closely as to whether Defendant 4 was the true owner or disposal right holder of the instant real estate, and Defendant 1, who neglected to act as an intermediary assistant, left the brokerage of the instant sales contract, and was liable for damages to Defendant 4’s own name and/or the copy of each of the instant real estate recorded in the copy of the registry of Dongdaemun-gu as to each of the instant real estate, and Defendant 4’s name and/or the copy of each of the instant real estate recorded in the registry of this case.

5. Determination as to the claim against Defendant 3

Since the legal relationship between the person who requested the brokerage or mediation of real estate sale and the person who requested such brokerage or mediation is identical to the delegated relationship under the Civil Act, the person who was requested such brokerage or mediation pursuant to Article 681 of the Civil Act is obligated to perform such brokerage or mediation as requested with the care of a good manager in accordance with the intent of such brokerage or mediation. As acknowledged earlier, Defendant 3 not only recommended the purchase of each of the real estate but also requested such brokerage or mediation from the plaintiffs, and connected the plaintiffs to Defendant 1, a broker, etc., and participated in the procedure. Furthermore, in light of the circumstances where the place where the sales contract of this case is to be prepared and the remaining amount is paid to the plaintiffs, the defendant 3 merely notified the plaintiffs of the situation that each of the real estate of this case was made by a good manager, but also arranged or mediated the sales contract of this case. Accordingly, it is reasonable to view that the defendant 3 was liable for damages to the plaintiffs as to each of the real estate of this case without compensation by the plaintiffs.

6. Legal relations between Defendants 4, 1, 2, and 3

Each of the liability for damages caused by the tort committed by Defendants 4, 1, 2, and 3 is recognized as having been objectively related and unlawfully inflicted damage on the plaintiffs as they meet the requirements of tort independently, and thus, they are jointly and severally related to each other. Meanwhile, with respect to the obligation to refund the purchase price as well as the obligation to compensate for the same economic purpose as that of Defendants 4, 1, 2, and 3, the other party’s obligation is extinguished if one of the obligations becomes extinct due to the repayment, etc. of the other’s obligation, as well as the other party’s non-joint and several liability.

7. Scope of damages.

The damages suffered by the Plaintiffs due to the tort committed by Defendants 1, 2, and 3 are the money actually contributed as a result of the belief that the sales contract for each of the instant real estate is valid and that it actually contributed. Therefore, the damages suffered by the Plaintiffs are the total of KRW 176,510,000 ( = purchase price + KRW 168,000,000 + KRW 4,510,000 + registration fee including acquisition tax and registration tax + KRW 4,510,000).

However, as acknowledged earlier, the survey cost of KRW 882,420 paid by the plaintiffs is for the boundary restoration survey and the partition survey, and there is no evidence to prove that such boundary restoration survey or partition survey is essential in the process of acquiring ownership of each real estate of this case, and such cost cannot be deemed as damage in proximate causal relation with the tort of the above defendants.

Meanwhile, the damages suffered by the Plaintiffs due to Defendant 4’s tort are registration fees, including relay fees and acquisition tax, which can be paid as restitution due to the cancellation of the instant sales contract, excluding KRW 168,00,000. The amount is a total of KRW 8,510,000, as recognized earlier.

8. Determination on the claim of consolation money

The plaintiffs claim 10,00,00 won as consolation money from the non-party 6 (○○○) who is the genuine owner of each real property of this case for the damages of their property as well as the damages arising from the tort of the defendants. Thus, in case where the property right of another person is infringed due to the tort of another person, it shall be deemed that the mental suffering is recovered from the compensation for the property damage. If the damages were not recoverable from the compensation for the property damage due to special circumstances, it shall be able to claim consolation money for the damages only if the perpetrator knew or could have known of such circumstances (see Supreme Court Decisions 93Da5979 delivered on December 13, 1994, 96Da31574 delivered on November 26, 1996, and 2010Da8257 delivered on March 18, 2004). Thus, the plaintiffs' claim for consolation money for mental suffering is not sufficient to acknowledge that the defendants suffered from the above mental suffering.

9. Fruits offsetting;

According to the above facts, although Defendant 4 did not have a certificate of right to registration of each real estate of this case, and even though he knew that he had resided in the address recorded in the register was not revealed in the resident registration record, he had concluded a sales contract of this case with Defendant 4 only reliance on the defendant 4's oral statement, and the non-party 2's secretary non-party 3, a certified judicial scrivener who received a request from the plaintiffs for the registration of ownership transfer of each of the real estate of this case and examined the necessary documents, knew that the address of the owner recorded in the register of each of the real estate of this case and the address recorded in the resident registration certificate of defendant 4 are different from that of the defendant 4, the defendant 4 should have confirmed that he was the true owner of each of the real estate of this case and should have paid the balance to the plaintiffs without such confirmation procedure, but instead, it was erroneous for the plaintiffs to complete the registration of ownership transfer in the name of the plaintiffs by correcting the address of the defendant 4's address and caused damages of this case.

10. Partial repayment;

The facts that the plaintiffs received KRW 20,000,000 as part of the damages amount from Defendant 4 on October 20, 2005 do not conflict between the parties. Thus, in this case where the plaintiffs voluntarily claimed the payment of KRW 20,000,00 as part of the damages amount against the defendants, it is reasonable to view that the payment of KRW 20,000,00 of the above amount by Defendant 4 extends to Defendant Kim money, Defendant 2, and Defendant 3.

11. Conclusion

Therefore, Defendant 4 is obligated to pay 152,25,00 won to the plaintiffs (168,00,000 won + 8,510,000 won x 50% - 20,000 won) as requested by the plaintiffs as to the existence and scope of the duty of performance of this case from March 11, 2004 to April 18, 2006, which is recognized that it is reasonable for Defendant 4 to dispute as to the existence and scope of the duty of performance of this case, 5% per annum under the Civil Act and 20% per annum from the next day to the date of complete payment, 30% per annum from the next day to the above 15% per annum, 4% per annum from the date of appeal to the above 15% per annum from the above 40% per annum of the plaintiffs to the above 40% per annum of the above case's claim by the plaintiffs as to each of the above 68,25,000 won per annum and 205% per annum.

Judges Cho Chang-chul(Presiding Judge)