(영문) 수원지방법원 2015.10.27.선고 2014가합61626 판결

The defendants jointly pay to the plaintiff 10 million won with 20% interest per annum from the day after the delivery of the copy of the complaint of this case to the day of complete payment.

Reasons

1. Facts of recognition;

A. Status of the parties and the conclusion of the first sales contract

1) Defendant D Aggregate Housing Association (hereinafter “Defendant Association”) and Defendant New ENC Co., Ltd. (hereinafter “Defendant Co., Ltd.”) are regional housing associations and construction companies that implement the project of constructing apartment houses in the said project site by making one of the E companies in the said project site as the project site.

2) Around August 18, 2003, the Defendants concluded a sales contract with the following contents (hereinafter referred to as “the first sales contract”) to purchase KRW 3,650,00,00 of the said four parcels (3,121 square meters, approximately 94 square meters, and approximately KRW 3,650,00,00 in total) from K, the owner of the land of the square (hereinafter referred to as the “each parcel of this case”) of the land of the area of the square meters (hereinafter referred to as the “each parcel of this case”).

Article 2 (Amount of Real Estate Sale) The sales amount of real estate shall be KRW 3,866,525 per square year, and the total sales amount shall be KRW 3,650,000,000: Provided, That all above-ground objects, such as buildings and seedlings, shall be included in the land price without any separate payment. In the case of an increase or decrease in the size of a part of Article 3 (Sale and Payment Method) (1) (hereinafter referred to as "K"), the settlement shall be made in the event of an increase or decrease in the size of a part of a building, grave, other structure, etc., existing on the above land at the same time as an intermediate payment and an balance payment are received, and at the same time, the destruction or loss of any

(2)A shall be liable and treated at the time of the receipt of the intermediate payment at the time of the receipt of the intermediate payment, and shall compensate for the damages for delay corresponding to 5/1,00 per day to B (the defendant; hereinafter the same shall apply) and shall not raise any civil or criminal objection.The contract may be terminated in the following cases: (i) If B delays the purchase price without any justifiable reason for at least one month or fails to comply with this contract, the down payment shall be reverted to A and the contract shall be null and void. (iii) If any cause listed in Article 9(Indemnification) of this Agreement occurs, B shall not be required to return the down payment (hereinafter referred to as "the contract"), and any balance shall not be paid for at least 350,000,000 won out of the balance paid until September 8, 2003, and any balance shall not be paid for at least 300,000 won in the name of the contractor A at the time of any change in the contract: (iv) any balance shall not be paid for at least 300,60,0,0,06.7.

3) Before the conclusion of the initial sales contract, Construction Albimer Co., Ltd. leased the down payment of KRW 330,000,000 and intermediate payment of KRW 660,000,000 to K. With the permission of K, each of the instant lands was set up on January 6, 200 with the maximum debt amount of KRW 330,000,000 with the maximum debt amount of KRW 660,000 on February 26, 200, and each of the said collateral mortgages was subsequently transferred to U.S. as construction Albimer Co., Ltd. merged into U., Ltd. on July 13, 2010.

B. The inheritance of the plaintiffs and L, and the receipt of compensation for confinement

1) After October 24, 2008, the Defendants paid KRW 400 million to K as part of the remainder of the remainder. On or around December 9, 2008, K died and L, the wife of which was the heir of K, respectively, received inheritance by agreement and agreement between the Plaintiff C, the Plaintiff’s land, the G land, and the H land.

2) On November 27, 2009, in order to construct a road at the edge of each of the instant lands, the land of this case was divided into two parcels, and each of the instant lands was partitioned into two parcels, and the road was constructed by accepting a notice of the change of the shape of the land, which is the part that was divided and separated, 214m, N37m, N37m, 0m, 149m, P road, and 133m. The Plaintiffs and L were paid a total of KRW 1,08, 95,940,000,000,000 won.

1) On December 24, 2009, the Defendants, L, and the Plaintiffs drafted a sales contract to modify or add the initial sales contract as follows (hereinafter referred to as “a sales contract to modify the above sales contract”). On the same day L and the Plaintiffs drafted a written confirmation confirming that all documents, such as the above revised sales contract, will not be disclosed to a third party, and if leaked, Q entered into a sales contract on behalf of the Defendant Union to assume civil and criminal liability. Meanwhile, Q at the same time concluded a sales contract on behalf of the Defendant Association.

1. Article 2-2. Article 3 (Sales Price and Method of Payment);

3. Where no additional payment is made on the date of payment of the balance, 1% per month shall be paid from three months thereafter as additional compensation for delay;

2) The Plaintiffs paid KRW 500 million to the Defendant Company on December 24, 2009, and KRW 39,200,000 on July 5, 2010, and KRW 210,000,000 to the Defendant Company on July 26, 2010, among the compensation paid by the Defendant Company due to the expropriation of a part of each of the instant lands, as described in the foregoing Section B-2, at the request of the Defendants.

(d) Suspension of the execution of duties by Q and the provisional disposition and the progress of the principal lawsuit

1) Meanwhile, Q, upon the application of the members, etc. of the Defendant Cooperative, shall not perform the duties of Q from the court until the judgment on the merits of the case becomes final and conclusive. During the period of the above suspension of the performance of duties, Q, upon receipt of the decision of the provisional disposition of suspending the performance of duties (U.S. District Court 2009Kahap266), filed an objection (U.S. District Court 2009Kahap26), on July 29, 2009, the court approved the above decision (U.S. District Court 2009Kahap3555).

2) The Defendant Union held an extraordinary general meeting on July 26, 2009 and resolved to dismiss the president of Q. Thereafter, the Defendant Union’s members, etc. sought confirmation of the absence of a resolution to elect the president of Q from the Suwon District Court, Sungnam Branch, 2009Gahap8082, and sought preliminary dismissal of Q from the Defendant Union. However, the said court had already passed a resolution to dismiss Q on March 12, 2010, and the said judgment became final and conclusive on April 2, 2010.

3) Some of the members of the Defendant Union sought confirmation of the absence of a resolution of the special general meeting of the Defendant Union as of July 26, 2009 by Suwon District Court Decision 2010Gahap5376, and the said judgment became final and conclusive after the said judgment became final and conclusive on February 17, 201 by deeming that the said resolution failed to meet the quorum and that there was a significant defect in the convocation procedure, and that there was no significant defect in the convocation procedure.

(e) Death of L and progress of the current business;

1) Thereafter L died on May 24, 2013, and succeeded to the F land owned by Plaintiff CO L. (2) At present, the draft district unit planning change decision including each of the instant land proposed by the Defendant Company was rejected and returned by the Joint (Urban and Building) Committee on March 27, 2014, and the Defendant Cooperative did not have filed an application for the authorization of the establishment of the housing association, and no procedure is conducted in relation to the Defendant Cooperative.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, Eul evidence 2-1 through 3, Gap evidence 3-1 through 8, Gap evidence 4, 7, 8, Gap evidence 10 through 12, Eul evidence 1 through 7, Eul evidence 8, 10, 11, and 13, the fact inquiry results with respect to the tolerance market of this court, the purport of the whole pleadings

2. Determination on this safety defense

The plaintiffs continue to exist until a provisional disposition such as suspending the performance of duties of Q and appointing R as acting representative is revoked. Since Q has no resolution of dismissal of Q, this judgment does not affect Q, Q, which is not a party to the above judgment, and since Q did not have the authority as the president of the Defendant Union, it is argued that all acts done as the representative of the Defendant Union in the lawsuit of this case are invalid.

On the other hand, the provisional disposition suspending the court's execution of duties is the contents of the provisional disposition suspending Q from performing duties until the judgment on the merits of this case becomes final and conclusive, and appointing R as acting representative during the period of the above provisional disposition. The judgment on the merits of this provisional disposition became final and conclusive on April 2, 2010 (U.S. District Court Branch 2009Gahap8082), and the special general meeting resolution of July 26, 2009, which was decided to dismiss Q of the defendant union, became final and conclusive on July 26, 2009 (U.S. District Court 2010Gahap5376). Thus, regardless of whether the above provisional disposition is revoked, R is no longer acting as acting representative, and Q is restored to the status of the president of the defendant union. Therefore, the above provisional disposition defense of the plaintiffs on the premise that Q is not the representative of the defendant union at present is without merit.

3. Judgment on the merits

A. Summary of the parties' assertion

1) The plaintiffs' assertion

The Defendants delayed the performance of their obligations to pay the remainder under the initial sales contract and the revised sales contract. 15 years have passed since the conclusion of the initial sales contract, and 15 years have passed since the conclusion of the initial sales contract. Accordingly, the Plaintiffs rescind the initial sales contract and the revised sales contract for reasons of delay of performance or impossibility of performance. Thus, even if the contract was concluded during the period of suspension of performance of Q’s work, the Plaintiffs entered into a contract for the alteration of Q with the belief of Q as a legitimate representative of the Defendant Union, and thus, it is valid as an express agent under Article 129 of the Civil Act. Furthermore, even if the conclusion of the revised sales contract was null and void as an act of non-representative, Q was ratified as the alteration of the sales contract to the Plaintiffs while working as the head of the Defendant Union, even if it was later recovered, and thereafter, Q were to have been paid the remainder of KRW 230 million (=5,610,000,000 and KRW 301,014,000).

2) The defendants' assertion

A modified sales contract was concluded by Q Q, whose performance of duties was suspended and dismissed on behalf of the defendant association at the time, and is not a legitimate exercise of authority, and the Plaintiffs concluded a modified sales contract with the knowledge of the aforementioned circumstances, and thus, it is null and void for the defendant association, and is null and void for the defendant company in accordance with the legal principles of partial invalidation. In addition, the modified sales contract is to terminate the sales contract, and it should be revoked as it was concluded by L

Since the plaintiffs' right of rescission has not been revoked in part of each of the land of this case and the tenants reside, it is not effective as an incomplete performance provision, and there is an inevitable reason for delay in payment of the defendants' balance (justifiable reason).

Even if the initial sales contract and the revised sales contract for household affairs were canceled, the delayed compensation clause of 1% per month cannot be claimed as the premise of the maintenance of the contract, and it is possible to confiscate the down payment only pursuant to Article 9 of the initial sales contract.

B. Determination

1) Whether the revised sales contract is lawful and effective

However, a contract concluded between a representative director, whose authority to represent the company has been suspended by a decision of provisional disposition suspending the performance of his duties by the court, is absolutely null and void. The representative director without the authority to represent the company in violation of the above provisional disposition and the other party to the transaction who performed legal acts in violation of the above provisional disposition cannot assert the validity of the above legal act on the ground that he acted in good faith (see, e.g., Supreme Court Decisions 92Da5638, May 12, 1992; 2008Da4537, May 29, 2008). Since a provisional disposition suspending the performance of duties and appointing an acting representative in an extraordinary general meeting convened by the said acting representative, even if the former president was appointed again as the head of the association for which the performance of duties was suspended by the said acting representative without the authority to represent the company, and the president of the previous association who had been appointed as the head of the association cannot, in light of the validity of the above provisional disposition suspending the performance of duties by the court and the decision suspending the majority.

In addition, ratification of an act of representation or invalidation is a single act with knowledge of the fact that the act of representation or invalidation belongs to himself/herself, and it does not require a certain method with regard to the method of expression of intent, explicitly or implicitly. However, in order to recognize an implied ratification, there must be circumstances to deem that the principal has fully understood the legal status faced by the act and that the result of the act belongs to himself/herself, even though he/she could be recognized. Therefore, in determining this, it should be carefully and carefully considering various relevant circumstances (see Supreme Court Decision 2009Da37718, Dec. 23, 2010), and evidence evidence Nos. 9 and 16 alone, the defendant Q entered into a modified sales contract with L and the plaintiffs, and it is insufficient to recognize that the effect belongs to the defendant association even if it was concluded by a person without the power of representation at the time of the amendment, and there is no other evidence to recognize that the contract was null and void.

Therefore, it is difficult to view that a modified sales contract was concluded by a person who does not have the power to represent the defendant company in violation of the disposition of suspending the performance of duties, and it cannot be deemed that the contract was effective in relation to the defendant company.

2) Whether the initial sales contract was rescinded

In light of the empirical rules or the concept of transaction in a social life, the fact that the performance of an obligation is impossible is not simply an absolute and physical impossibility, but a creditor cannot expect the realization of the obligor’s performance (see, e.g., Supreme Court Decision 2009Da75321, Dec. 9, 2010).

In this case, according to the above facts, the defendants failed to meet the requirements for the establishment of a housing association under the basic urban planning and failed to make a request for the authorization of the establishment of a housing association to the competent authority, and even after a considerable period of 12 years from the date of the conclusion of the first sales contract, the defendants' joint business is being delayed without any progress, and it seems very inappropriate whether to continue to conduct the business in the future. Ultimately, the defendants' joint business is in a situation where it is impossible or considerably difficult for the defendants to perform their obligation to pay the remainder to the plaintiffs. Thus, the plaintiffs can cancel the first sales contract even without the provision of performance to the defendants, and the first sales contract was cancelled by the plaintiffs' declaration of intent to cancel the contract for the reasons that the defendants' obligation to pay the remainder is de facto impossible.

3) Scope of restitution or damages

Therefore, the plaintiffs shall return to the original state the down payment of KRW 330,00,000, the intermediate payment of KRW 660,000,000, and some remainder of KRW 400,000,000, which was already paid to the defendants due to the cancellation of the first sales contract. While the above down payment of KRW 330,000,000, which was paid to the defendants, shall be returned to the defendants pursuant to Article 9 of the first sales contract, it is obvious that the plaintiffs are not entitled to recover the down payment of KRW 330,00,000, which was paid to the defendants due to the cancellation of the first sales contract.

4. Conclusion

Therefore, the plaintiffs' claims against the defendants are dismissed as all of the grounds.