2014Da205782 Undue gains

A

B Housing Association

Seoul Central District Court Decision 2013Na38939 Decided February 6, 2014

May 28, 2015

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 2

A. Where a debtor clearly expresses his/her intent not to perform his/her obligation, the creditor may cancel the contract or claim damages against the debtor on the ground of non-performance refusal, without the notice of performance, even before the due date is due under the principle of trust and good faith. Whether the debtor clearly expresses his/her intent not to perform his/her obligation should be determined by taking into account the party’s behavior and specific circumstances before and after the contract (see, e.g., Supreme Court Decisions 2004Da53173, Aug. 19, 2005; 2005Da6337, Sept. 20, 2007).

B. Review of the reasoning of the lower judgment and the duly admitted evidence and the record reveals the following facts.

(1) On July 5, 2007, the Defendant entered into an agency contract for the implementation of the project of the Dongjak-gu Seoul Metropolitan Government District Housing Association (hereinafter referred to as the "instant implementation agency contract") with C Co., Ltd. (hereinafter referred to as the "C"), and delegated the authority on the purchase of the relevant land, authorization and permission, management of contributions, recruitment of union members (resident and general sale).

(2) On September 3, 2007, C agreed that the purchase of land and buildings within the pertinent project district from the Egypt Association (hereinafter referred to as the “Egypt Association”) shall supply the Egypt Association with one apartment purchase right (hereinafter referred to as the “instant purchase right”) held by C when entering into the association separately from the purchase price.

(3) On March 24, 2008, the Plaintiff decided to acquire the sales right of this case from the Edgys Association KRW 43,000,000, and paid KRW 43,000,000 to Edgys Association.

(4) On the same day, the Plaintiff entered into an agreement to enter into an association with the amount of KRW 561,240,000 (hereinafter referred to as the “agreement to enter into the association of this case”) with a party representing the Defendant as an object of the instant right to parcel out, and remitted business promotion expenses of KRW 15,00,000 and the amount of KRW 54,624,00 (contract deposit) to C. 69,624,000.

(5) On July 13, 2009, the Plaintiff filed a lawsuit seeking the return of KRW 112,624,00 ( KRW 43,00,000 + KRW 69,624,000 + KRW 69,000) out of the total amount paid by the Plaintiff to Egypt and C (hereinafter referred to as “prior lawsuit”) by asserting that the instant sales right transfer contract and the agreement to enter into an association were null and void, void, fraudulent or erroneously, in violation of Article 103 of the Civil Act, and that the instant sales right transfer contract and the agreement to enter into an association were cancelled due to nonperformance.

(6) In the process of the prior suit, the defendant sent a reply to the purport that (A) as to the fact finding by the first instance court, the plaintiff did not acquire the defendant's membership, and that the plaintiff is not entitled to be supplied with one apartment unit from the defendant. (b) In the appellate court (Seoul High Court 2010Na37662), the plaintiff participated as the plaintiff's supplementary intervenor, and the contract of joining the association of this case was concluded with the plaintiff without legitimate authority, and therefore, it is not effective as against the defendant. Therefore, the plaintiff is not entitled to purchase one unit of apartment unit from the defendant.

(7) Meanwhile, while the Defendant alleged to the same purport in the first instance court of this case, at the time of the lower court, withdrawn the previous assertion by proxy and acknowledged that C concluded a contract to join the association of this case with the Plaintiff as a legitimate representative of the Defendant, the Defendant sought a prior performance of the contributions and additional contributions under the contract to join the association of this case.

C. Examining the above facts in light of the legal principles as seen earlier, it is reasonable to view that the Defendant did not recognize the Plaintiff as the Defendant’s partner from the conclusion of the instant partnership membership agreement to the first instance court of the instant case, and that the instant partnership membership agreement has no effect on the Defendant in the prior lawsuit and the instant first instance court, which, in substance, rejected the Plaintiff’s right to sell the instant land which is the object of the instant partnership membership agreement and clearly expresses the Plaintiff’s intention to perform the Defendant’s obligation under the instant partnership membership agreement in advance.

Although the Plaintiff asserted the invalidity, cancellation, or cancellation of the agreement to join the association of this case in the prior suit and the instant lawsuit, considering the fact that the Plaintiff paid business promotion expenses and contributions (contract amount) according to the agreement to join the association of this case after the conclusion of the agreement to join the association of this case, the Plaintiff’s assertion appears to have arisen from the Defendant’s denial of the Plaintiff’s right to represent and the Plaintiff’s qualification for membership. In light of this, it is difficult to view that the Plaintiff’s assertion as to the above assertion was intended to either the Plaintiff did not intend to urge the Plaintiff to perform the contract to join the association of this case or to not perform its obligations despite the Defendant’s intent to affirm the validity of the agreement to join the association of this case. Moreover, if the Plaintiff claimed against the Defendant pursuant to the agreement to join the association of this case, it would have been accepted by the Defendant and expressed its intent to perform the Plaintiff as to the right to sell this case.

Therefore, barring any other special circumstances, it is reasonable to determine that the Plaintiff may rescind the membership agreement of the instant association on the ground of the Defendant’s refusal of performance, without the notice of performance, even before the due date is due.

D. Nevertheless, the court below rejected the Plaintiff’s claim for rescission of contract based on the Defendant’s refusal of performance by erroneous determination to the effect that even if the Defendant asserted to the effect that the contract of this case was denied in the preceding lawsuit and the first instance court, it cannot be deemed that the Defendant expressed in advance the intent to refuse performance regarding the contract of this case.

In conclusion, the judgment of the court below is erroneous in the misapprehension of the legal principle regarding the rescission of contract due to the refusal of performance, or in the misapprehension of the principle of free evaluation of evidence against logical and empirical rules, which affected the conclusion of the judgment. The ground of appeal pointing this out

2. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-young

Justices Lee In-bok

Justices Kim In-bok, Counsel for the defendant

Justices Go Young-young