2015Na200567 Registration for cancellation of ownership

A

B

Seoul Southern District Court Decision 2014Gahap101683 Decided December 12, 2014

March 24, 2016

May 10, 2016

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

A. The Defendant jointly with C shall pay to the Plaintiff 149,535,218 won and the amount calculated by applying 5% per annum from September 2, 2015 to May 10, 2016, and 20% per annum from the next day to the day of full payment.

B. The plaintiff's remaining main claims are dismissed.

2. 5% of the total litigation costs between the Plaintiff and the Defendant shall be borne by the Plaintiff, and the remainder by the Defendant.

3. Paragraph 1(a) of this Article may be provisionally executed.

1. Purport of claim

The primary purport of the claim: The defendant shall pay to the plaintiff 154,00,000 won and the amount calculated by the ratio of 5% per annum from June 27, 2013 to November 14, 2014 to the delivery date of a copy of the application for modification of the purport of the claim and the cause of the claim, jointly with C, to the plaintiff, and 20% per annum from the next day to the day of complete payment.

Preliminary claim: The defendant shall pay to the plaintiff 40,000,000 won with an amount calculated by the ratio of 20% per annum from the day following the delivery of the copy of the claim and the application for modification of the cause of the claim as of February 25, 2015 to the day of complete payment.

【Plaintiff added the aforementioned conjunctive claim at the trial.】

2. Purport of appeal

The judgment of the first instance shall be revoked. The defendant shall jointly and severally with C Co., Ltd. pay to the plaintiff 154,00,000 won with 5% per annum from June 27, 2013 to November 17, 2014, and 20% per annum from the next day to the date of full payment.

1. Basic facts

A. Joint agreement between the defendant and C

1) On November 17, 2011, the Defendant entered into a joint agreement with the co-defendant C Co-Defendant C Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co., Ltd (formerly changed: D Co., Ltd.; hereinafter referred to as “C”) on construction of multi-household housing on the Gangseo-gu Seoul Metropolitan Government E-gi 278.9m (hereinafter referred to as “instant land”).

2) The main contents of the instant joint project agreement are as follows.

Article 4 (C's Obligations) 2 and C shall be responsible for and undertake development projects for all acts related to construction, such as implementation, execution, sale, taxation, registration, etc. of business real estate.

3.C shall pay 1,100,000,000 won to the defendant in preference to the completion of the project in return for the joint undertaking.

5. C may not charge to the defendant any expenses under the pretext of the joint undertaking.

B. Sales contract between the Plaintiff and C

1) On November 29, 201, the Plaintiff entered into a sales contract with F, the representative director of C, with the content that the second floor of multi-household housing that will be newly built on the instant land is to be sold in 260,000,000 won (hereinafter “instant sales contract”).

2) Meanwhile, the Plaintiff, who was a joint proprietor of a newly built multi-household house, delivered KRW 70,000,000 to G who abandoned the business, as the price for the construction, and the Plaintiff and F agreed to recognize the said KRW 70,000 as the down payment for the instant sales contract. Thereafter, on December 12, 2011, the Plaintiff paid KRW 84,000,000 in total to C as the sales price, including remitting KRW 40,000,000 to the Defendant’s account.

C. The completionC of the instant building newly built multi-household housing (H; hereinafter referred to as “instant building”) on the instant land, and on October 5, 2012, registration of preservation of ownership in the name of the Defendant was completed for each household of the instant building.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4, 5, 7, Eul evidence Nos. 1 and 3, the purport of the whole pleadings

2. Judgment as to the main claim

A. Demanding the party's responsibility, representation or expression agency's liability for the sales contract

1) The plaintiff's assertion

The Defendant did not object to the conclusion of the instant parcelling-out contract between the Plaintiff and C, but instead paid KRW 40,00,000 to the Defendant’s account. This was the party to the instant parcelling-out contract, as the Defendant fulfilled its duty to cooperate in the sale under the instant joint contract by the method that the Plaintiff is liable to the party to the instant parcelling-out contract. The Defendant granted the right to representation to C through the instant joint contract, and the instant parcelling-out contract is governed by the Commercial Act, and is subject to wise exception. Even if the Defendant’s delegation of the right to sell the instant building is not recognized, the Defendant is liable to the party to the instant parcelling-out contract in accordance with the legal doctrine as expressed agent under Article 125 or 126 of the Civil Act. However, by declaring that the Plaintiff’s rescission of the instant parcelling-out contract to C on the ground that it is impossible to perform its duty to transfer ownership to the Plaintiff, the instant parcelling-out contract was lawfully cancelled from November 15, 2014 to its original state.

2) Determination

In light of the following circumstances: (a) No. 4 and No. 1 were examined by comprehensively taking into account the overall purport of the pleadings; (b) the seller’s name was entered in the sales contract of this case and only F was affixed with F’s seal, and the Defendant’s name, signature or seal was not entered in the sales contract of this case; (c) Article 4(2) of the joint project contract of this case provides that the Defendant shall be responsible for all acts related to the construction of the building of this case, such as sale in lots, and the Defendant shall actively participate in the development project of this case; and (d) Article 8(4) of the joint project contract of this case provides that the Defendant shall be liable for the development project of this case including sale in lots, and it did not provide that the Defendant shall be liable for the third party as the party to the sales contract of this case; or that the Defendant agreed that F was the party to the sales contract of this case, or that F was the party to the sales contract of this case as the representative of the Plaintiff, the Plaintiff’s assertion that it was insufficient to acknowledge that it differently.

B. Claim for return of unjust enrichment based on subrogation right of creditor, claim for reimbursement or claim for settlement following the exercise of subrogation right

1) The plaintiff's assertion

In order to preserve the Plaintiff’s right to recover KRW 154,00,000 following the cancellation of the instant sales contract against C, C shall exercise, within the scope of the above preservation claim, the right to return unjust enrichment of KRW 502,111,554, which C has against the Defendant, or the right to indemnity under Article 261 of the Civil Act or the right to reimburse under Article 264,00,000 according to the execution of the security interest in transfer of KRW 4

2) Determination

A) The fact that the registration of ownership transfer in the name of the Defendant has been completed with respect to the above building without the Plaintiff’s obligation to transfer ownership under subparagraph 1 of Article 201 (second floor) of the instant building. Therefore, it is apparent that C’s obligation to transfer ownership to the Plaintiff was impossible to perform. For this reason, it was served to C on November 14, 2014, stating the Plaintiff’s declaration of intent to cancel the instant sales contract. As such, the sales contract in this case was lawfully rescinded on November 15, 2014, since C did not pay to the Plaintiff the sales contract in this case due to the cancellation of the instant sales contract (i.e., KRW 154,00,000,000, + KRW 84,000,000 and KRW 840,000,000 and KRW 15,000,000).

B) the C’s insolvent

In full view of Gap evidence No. 10 and the fact-finding results with the Supreme Court's fact-finding, C can be recognized as insolvent without active property. Thus, the plaintiff needs to preserve the above preserved claim.

C) the existence of subrogation claims

(1) Whether the claim for restitution of unjust enrichment of KRW 502,11,554 exists or not

C At its own expense, the construction of the instant building on the land owned by the Defendant, and the Defendant’s completion of registration of preservation of ownership in the name of the Defendant was based on the instant joint project agreement, and even if C spent construction expenses for the construction of the said building, barring any circumstances such as cancellation of the said joint project agreement, the Defendant obtained benefits without any legal ground. It cannot be deemed that C acquired the right to indemnity pursuant to the agreement since it cannot be deemed that the instant building was newly constructed without title, and therefore, the Plaintiff’s assertion on this part is without merit.

(2) The existence of a claim for settlement money due to the exercise of the transfer security right

(A) ① The Defendant and C agreed to construct the instant building at the expense of C in the instant joint project agreement and pay C KRW 1,100,000 after completion of the project in return for the joint project; ② thereafter, C has constructed the instant building with its own cost and effort; ③ the Defendant completed the registration of ownership preservation on the instant building in its name on October 5, 2012 and under its own name.

In full view of the above facts, since the building of this case was built by C in his materials and efforts, it is reasonable to view that C had acquired the transfer security right to secure the claim of KRW 1,100,000,000, etc. for business profit of this case by completing the registration of preservation of ownership of the building of this case in its own name.

(B) Meanwhile, comprehensively taking account of the overall purport of the pleadings as to Gap evidence Nos. 2, 22, and 25, the following facts: (a) upon delay in the completion of the construction work, the defendant sent to C a certificate of contents demanding the completion of the construction work on April 16, 2012; (b) on May 16, 2012, the defendant sent C a certificate of contents stating that he would separately file a claim for expenses for the delay of construction work, etc. pursuant to Article 8(3) of the instant joint project agreement; and (b) on February 24, 2012, the defendant completed the registration of the establishment of a new mortgage around the maximum debt amount of KRW 36,00,000 and KRW 14,00,000 with respect to the instant land at the Bank of Korea; (c) on April 29, 2013, after completion of the construction of the construction of the building in this case, the defendant’s additional registration was completed on April 10, 2014, 20194.

According to the above facts, it is reasonable to view that the defendant notified C of his intention to acquire the ownership of the building of this case and executed the security right by disposing of the building of this case on or around April 29, 2013. Thus, barring any special circumstance, the defendant is obligated to pay C the balance of KRW 474,00,000 after deducting the amount of KRW 1,574,00,000 as the secured claim from the value of the building of this case at the time of the execution of the above security right.

(2) Judgment on the defendant's assertion

(A) Defendant’s assertion

Accordingly, the defendant asserts that from the balance settlement remaining after deducting operating income of KRW 1,100,00,000 from the appraised value of the building of this case 1,574,00,000, the defendant did not pay to C when deducting or offsetting the expenses paid by the defendant for the construction of the building of this case as shown in the following table, and defect repair expenses paid by the defendant for the building of this case.

A person shall be appointed.

A person shall be appointed.

(B) Determination

① Comprehensively taking account of the overall purport of the pleadings as to the evidence No. 22, C in Seoul Southern District Court 2014Gahap109144, the Defendant lent KRW 35,000,000 as the loans No. 1 as set forth in No. 2 to C, the Defendant spent KRW 50,000,000 as the construction cost, and KRW 14,000 as the electrical construction cost set forth in No. 5, and the amount of KRW 805,00 as the certified judicial scrivener’s expenses set forth in No. 8, and KRW 21,29,880 as the person who has spent KRW 121,104,880 as the above amount (=35,000,000 + KRW 50,000,000 + KRW 104,000,000 + KRW 80,09,809).

② In full view of the facts stated in the evidence Nos. 21 and 22 and the purport of the entire pleadings in the testimony by the witness Q, the Defendant was found to have spent KRW 16,00,000 for the repair of defects, such as the rooftop waterproof as indicated in No. 11, and thus, the aforementioned repair cost of KRW 16,00,000 should be deducted from the settlement amount.

③ In full view of the purport of the entire pleadings in the statement Nos. 8 and 9, the Defendant paid the sum of KRW 160,000,000,00 as the adjusted amount Nos. 16, August 12, 2015 to J and I, and thus, the above amount should be deducted from the adjusted amount.

④ Comprehensively taking account of the overall purport of the arguments in Eul evidence Nos. 2, 5, and 7, since it is recognized that C was able to claim litigation costs against C in the lawsuit brought against the defendant (Seoul Southern District Court 2012Gahap16958, Seoul Southern District Court 2013Na4698, Seoul Southern District Court 2014Gahap109144), the defendant was sentenced to winning the lawsuit, and the defendant was able to claim litigation costs of KRW 27,359,902 in total against C (= KRW 10,681,000 + KRW 10,681,00 + KRW 5,997,902). Therefore, the above amount should be deducted from the settlement amount.

⑤ The evidence presented by the Defendant alone is insufficient to acknowledge that the Defendant incurred defect repair costs or incurred additional costs as alleged by the Defendant in relation to the construction of the building in question, as a result of the occurrence of defect in the building in question, as alleged by the Defendant, as to the remaining items of the said Table, and there is no evidence to acknowledge otherwise.

3) Sub-committee

Therefore, at KRW 474,00,000, the amount of subrogation claim 1 to the above 324,464,782 won (=121,104,880 won + 16,00,000 won + + 160,000,000 won + 27,359,902) 149,535,218 won (=474,00,000 won - 324,464,782) remains.

Therefore, the Defendant is obligated to pay damages for delay calculated by applying the rate of 5% per annum under the Civil Act from September 2, 2015 to May 10, 2016, which is the date when the judgment of the court is rendered by the Defendant, and 20% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the following day to the date of full payment of the damages for delay calculated from September 1, 2015, which is the following day after the Plaintiff’s declaration of intent to seek payment of the amount of KRW 149,535,218 and the amount of the settlement money for the Plaintiff’s subrogated Plaintiff (However, the amount of the claim for the settlement money partially deducted by citing part of the Defendant’s claim, exceeds 40,00,000 won of the amount of the conjunctive claim and the Plaintiff’s conjunctive claim is not determined separately with respect to the Plaintiff’s conjunctive claim.

3. Conclusion

The plaintiff's primary claim against the defendant is justified within the scope of the above recognition, and the remaining primary claim is dismissed as there is no ground. The judgment of the court of first instance is unfair in conclusion, and it is so decided as per Disposition 1 of the judgment of the court of first instance.

The presiding judge, judge and deputy judge;

Judges, white leaves

Judges fixed-scale