Plaintiff (Law Firm Law, Attorney Seo Young-young et al., Counsel for plaintiff-appellant)

Defendant 1 and one other (Law Firm Han, Attorney Song-won et al., Counsel for the defendant-appellant)

April 12, 2017

Seoul Eastern District Court Decision 2015Da136266 Decided August 26, 2016

1. Revocation of a judgment of the first instance;

2. The plaintiff's claims against the defendants are all dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendants jointly and severally pay to the Plaintiff 32,00,000 won with 5% interest per annum from June 25, 2014 to the delivery date of a copy of the complaint of this case, and 15% interest per annum from the next day to the full payment date.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

A. From December 2010 to Defendant 1’s mother, the Plaintiff entered into the instant contract with Defendant 1 to purchase KRW 25,200,000 of the occupancy right to the residential farming house (number omitted) within the housing zone of △△△-dong, Gangnam-gu, Seoul, for the residential farming house (number omitted).

B. The Plaintiff paid KRW 32 million to Defendant 1 from December 29, 2010 to March 4, 2011.

[Ground of recognition] Facts without dispute between the parties, Gap evidence 1 to Gap evidence 2-2, the purport of the whole pleadings

2. Determination as to the cause of action

A. Claim on a refund of the purchase price pursuant to an agreement

1) Summary of the Plaintiff’s assertion

The right to move into the instant contract by Defendant 1 from the Seoul Special Metropolitan City SH Corporation to the Plaintiff is the right to be supplied with “one household of the 25 square-type rental apartment within the △△△△△△△△△△ Housing Housing Zone. Defendant 1 agreed on January 20, 201 to return the purchase price if the Plaintiff fails to obtain such right to move into the housing zone, and Defendant 2 guaranteed Defendant 1’s obligation to the Plaintiff based on the aforementioned return agreement. However, even though the allocation of rental apartments to the residential farmer’s house within the △△△△△2 Housing Zone was completed in 2013, the Plaintiff was not selected as the occupant of the leased apartment, the Defendants are jointly and severally obligated to return the said right to move into the Plaintiff KRW 32 million.

2) Determination

In light of the records in Gap evidence No. 3, January 201, 201, defendant 1 prepared and delivered to the plaintiff a letter of this case stating that "the purchase price of 25-type rental apartment house occupancy right to the residential farmland located in the Gangnam-gu ○○○dong 2, Gangnam-gu, Seoul to pay KRW 32 million to the plaintiff when the occupancy right to the above goods is revoked." The defendant 2 guaranteed the plaintiff's obligation to the plaintiff based on the above performance sheet of defendant 1, but it is recognized that the above fact of recognition alone is the right to the "1 household of 25-type rental apartment house located in the △△△△△dong 200,000,000,000 won paid to the plaintiff," and there is no other evidence to acknowledge otherwise.

The plaintiff's assertion on this part is without merit.

B. Determination on the claim for restitution following the cancellation of a sales contract

(i) the first argument;

The purpose of the instant contract is to move into a 25-type rental house through Defendant 1’s residential life. However, the Plaintiff is currently a single household and did not meet the qualification requirements to move into a 25-type rental house. Therefore, the Plaintiff and Defendant 1 entered into a special contract with the Plaintiff to withhold the right to cancel the contract in the event the realization of the purpose of the instant contract is impossible through the preparation of the instant written statement. As such, the Plaintiff and Defendant 1 entered into a contract with the Plaintiff to the effect that the right to cancel the contract is reserved, the duplicate of the instant written complaint containing the Plaintiff’s declaration of intent to cancel the contract is served on the Defendants, and the Defendants should return

(ii) the second argument;

The Plaintiff’s right to move into a residential farmer’s house purchased from Defendant 1 is the status of “resident of a simple plastic structure” under subparagraph 2 (f) of attached Table 4 of the Enforcement Rule of the Special Act on Public Housing. The preferential supply portion to the resident of a simple plastic structure of the Seoul Special Metropolitan City SH Corporation is limited to 59 square meters, 54 square meters, and 49 square meters. As such, it is not possible to preferentially move into a 25-type rental apartment according to each of the instant documents. Therefore, the objective of the instant sales contract is impossible. Since the instant contract was rescinded following the Plaintiff’s rescission with the right to cancel the contract under each of the instant documents, the Defendants are obligated to

3) Determination on the first argument

According to the purport of the argument as a whole, the plaintiff was not a sole householder on November 29, 201, according to the following facts: (a) 4, 1, 2, 2, 3, 2, 3, 3, and 4, 5, 3, 400 square meters of 4,000 square meters of 1; (b) 5,000 square meters of 2,000 square meters of 2,000,000,0000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,00,000,00,00.

Therefore, the Plaintiff appears to have been in the position of joint household owner after the contract of this case and converted into a single household owner before the above subscription. As alleged by the Plaintiff, even if the content of each of the instant notes was unable to achieve the purpose of the contract of this case, it is difficult to view that the Plaintiff is the content of the right to cancel the contract of this case where the Plaintiff did not preferentially distribute a long-term lease apartment exceeding 40m2 due to the Plaintiff’s arbitrary conversion into a single household owner, etc., and there is no other evidence to acknowledge this differently.

Therefore, the plaintiff's assertion and claim on this part, which is premised on the occurrence of the right of rescission based on each of the instant agreements, are without merit.

4) Judgment on the second argument

In this case, the facts that the subject matter of sale was stated as "25 square meters occupancy right" are as mentioned above, but there is no evidence to view that the average number is based on the exclusive use area. In addition, as seen above, the Plaintiff applied for an application for a long-term lease house of 2 complex 59 square meters in the Magsan District in the Seoul Special Metropolitan City SH on June 25, 2014, as seen above, in light of the fact that the sum of the exclusive use area and the common use area of the house of 59 square meters above the above 59 square meters exceeds 25 square meters, according to the evidence Eul evidence 1-3, it is difficult to view that the entry of the above phrases alone in this case sold the right to occupy the "25 square meters exclusive use area" at the time of the contract, and there is no other evidence to acknowledge it differently. The Plaintiff’s assertion based on this premise is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case against the defendants is dismissed as it is without merit, and the judgment of the court of first instance with different conclusions is unfair, so the defendant's appeal is accepted and the plaintiffs' claim is revoked and it is dismissed as per Disposition.

Judges Kim Young-young (Presiding Judge) and Lee Jae-young