(영문) 서울고등법원 2016.9.9. 선고 2015나30802 판결

1. The part against the plaintiffs in the judgment of the first instance, including the claim extended and reduced in the trial after remand, shall be modified as follows:

A. The defendant shall pay to the plaintiff B for KRW 303,97,321 from May 18, 2009; KRW 69,945,40 from February 6, 2013; KRW 246,095,260 from May 18, 2009; KRW 164,986,078 from May 18, 2009 to KRW 81,09; KRW 81,09,182 from February 6, 2013 to the plaintiff; KRW 142,548,520 from among them to the plaintiff; and KRW 98,603,111 from May 18, 2009 to the date of complete payment; and KRW 15,150 from the date of full payment to the 15th day of May 18, 2009 to the 15th day of May 18, 2015.

B. Plaintiff A’s claims and the remainder of Plaintiff B, C, and D are dismissed, respectively.

2. Of the total cost of litigation between the Plaintiff A and the Defendant, the part arising between the Plaintiff A, B, C, and D and the Defendant, including the cost of participation, shall be borne by the Defendant, respectively.

3. The above paragraph 1(a) may be provisionally executed.

Purport of claim and appeal

1. Purport of claim

The defendant shall pay to the plaintiff A 420,702,860 won, 303,942,730 won, 246,095,260 won to the plaintiff C, and 142,548,520 won to the plaintiff D from March 19, 2009 to the service date of the duplicate of the complaint of this case, 5% per annum from the next day to September 30, 2015, and 15% per annum from the next day to the day of full payment (the plaintiff A shall reduce his claim at the trial, and the plaintiff B, C, and D shall expand his claim).

2. Purport of appeal

The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiffs' claims corresponding to the revoked part shall be dismissed.

Reasons

1. Basic facts

A. The defendant is an organization established by 65 owners of the instant site and building, including the plaintiffs and E, in order to remove the old second floor building of "F market" on the ground of "F market" (hereinafter referred to as the "the instant site") of Yangcheon-gu Seoul Metropolitan Government G (hereinafter referred to as "the instant building") and build a new main complex building, and obtained authorization for the establishment of the market reconstruction association on January 10, 200 from the head of Yangcheon-gu and obtained authorization for the alteration of the market improvement association on January 26, 2006 from the head of Yangcheon-gu.

B. On October 4, 2005, E completed the registration of ownership transfer for each of the instant land and buildings owned by the Defendant on November 14, 2007, and the Plaintiffs and E transferred each of the instant land and buildings to the Defendant prior to the removal of the instant building on February 2007.

C. After that, the Defendant, on August 30, 2008, held a general meeting of partners and passed a resolution on the management and disposal plan, and obtained authorization from the head of Yangcheon-gu on December 18, 2008. Under the above management and disposal plan, the Plaintiffs and E were classified as objects of cash settlement, not objects of sale.

D. On December 18, 2008, the date of approval of the management and disposition plan, the size ratio and market price of shares owned by the plaintiffs and E among the land in this case as of December 18, 2008 are as stated in [Attachment 1]'s shares and market price.

E. Meanwhile, among the instant building sites and buildings, the establishment registration of each of the following units was completed prior to the completion of the registration of ownership transfer based on the trust: (a) the details of the establishment of a neighboring mortgage, such as the details of the establishment of a neighboring mortgage under [Attachment 2]; (b) among them, each of the establishment registration of each of the above units units of Plaintiffs B, C, D, and E was revoked on February 5, 2013.

(f) On January 15, 2013, E transferred L of KRW 100,00 and its delay damages to L of KRW 100,00,00 and its delay damages to L of KRW 53,546,740 and its delay damages to the Defendant, respectively, and notified the Defendant of the above transfer. ② On July 25, 2013, L of KRW 50,000 and its delay damages to the Plaintiff of KRW 50,00,000,000 and its delay damages, respectively, to the Defendant. ③ On January 23, 2013, M of transferred the above obligation to N, and notified the Defendant of the fact that it transferred the obligation to the Defendant on November 7, 2013, and N of the fact that N of the transfer was transferred to C of the obligation to the Defendant.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 2, 12-15, 19-21 (including provisional numbers; hereinafter the same shall apply), Eul evidence Nos. 3, the market price appraisal result of the first instance appraiser K, the purport of the whole pleadings

2. Determination as to Plaintiff A’s claim

A. The plaintiff A's assertion

Plaintiff A was excluded from a person subject to parcelling-out according to the Defendant’s management and disposition plan, and became a person subject to cash settlement pursuant to Article 47 subparag. 3 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 11293, Feb. 1, 2012; hereinafter “former Do Government Act”). The Defendant is obligated to pay to Plaintiff A settlement money of KRW 420,702,860 (=the market value of each of the shares owned by Plaintiff A 497,702,860) at the market value of each of the above shares owned by Plaintiff A – KRW 77,00,000) and damages for delay.

B. Determination

The plaintiff A was a member of the defendant who owned a part of the land and building of this case, and was excluded from the subject of parcelling-out according to the management and disposal plan authorized on December 12, 2008.

However, according to the above evidence and the purport of evidence No. 1, No. 2, and No. 2, and No. 2, as to the above shares of the Intervenor No. 2, the Intervenor No. 2 (hereinafter referred to as the “ Intervenor”) filed a claim for the registration of transfer of the shares of the Intervenor No. 2, and the registration of transfer of the shares of the Intervenor No. 2 for the above reasons No. 2, No. 1, No. 3, and No. 2, No. 1, No. 4, and No. 5, No. 1, No. 2, and No. 2, No. 1, No. 2, the Intervenor No. 2, and No. 1, No. 3, No. 2, and No. 2, No. 3, and No. 1, No. 2066, No. 1, and No.

3. Determination as to the claims filed by Plaintiffs B, C, and D

(a) Occurrence of claims for settlement balance;

1) According to the facts found earlier, it is reasonable to view that Plaintiff B, C, D, and E were excluded from eligible buyers under the management and disposal plan approved on December 18, 2008, and thus became eligible for cash settlement pursuant to Article 47 subparag. 3 of the former Do Government Act. The settlement money to be paid by Plaintiff B, C, D, and E from the Defendant is equivalent to each market price indicated in [Attachment Table 1]’s ownership and market price (Plaintiff B253,942,730, Plaintiff C92,548,5420, Plaintiff C92,548, E 253,546,540, and delay damages amounting to KRW 504,50,500,529,250,642,57,2505,29,250,645,257,29,7405,250,305,254,2505,29,254, and delay damages for delay damages for the Plaintiff 2,25005,300,254,25,3000,34,2,2545,25400, and

2) On this issue, the Defendant asserts that, since the above management and disposition plan is invalid due to a serious defect, Plaintiff B, C, and D cannot claim the payment of settlement money against the Defendant. However, there is no evidence to deem that there is a serious defect that can be invalidated in the above management and disposition plan. Therefore, the Defendant’s above assertion is without merit.

3) The defendant also asserts that since the plaintiff B, C, D, and E sold their respective shares in the instant land toO, the plaintiff B, C, and D could no longer claim the payment of the liquidation amount to the defendant.

According to the evidence Nos. 17 and 18 of Eul, around May 12, 2015, it may be recognized that the sales contract was made up in the name of the plaintiff B, D, and Eul's agent L, that the plaintiff C, D, and E sell shares owned by the plaintiff B, C, D, and E in the name of the plaintiff C, and E's agent L, and that each of the above sales contract was made to the plaintiff B, C, D, and E sell shares owned by the plaintiff C, D, and market price (the defendant asserts that each of the above sales contract was made to the effect that the plaintiff B, C, D, and E transfer their claims against the defendant to theO, but the above sales contract was made up in the form of a real estate sales contract, not a transfer contract, but the subject matter of the sales contract is clearly written in the above shares of the plaintiff B, C, D, and E, and the purport of the whole evidence No. 3 B, and the purport of the pleading and pleading, the plaintiff C, C, D, and E still hold the above shares for the defendant's.

B. Judgment on the defendant's defense

1) As to the defense of offsetting

The defendant asserts that since the plaintiff B and C borrowed the sum of KRW 70 million and KRW 33 million from the defendant as moving expenses, they set off the amount from each settlement money to be paid by the defendant.

Although there is no dispute between the parties regarding the fact that the Defendant lent each of the above amounts to Plaintiff B, C, and E as moving expenses, according to the overall purport of the statement and pleading No. 15, the Defendant can recognize the fact that the above loan claims were transferred to the limited partnership company on June 4, 2010. Thus, the Defendant, who is not in the status of creditor, cannot offset the above loan claims against Plaintiff B, C, and E with the above loan claims. The above argument by the Defendant is without merit.

2) As to the simultaneous performance defense

The defendant asserts that the settlement money cannot be paid until the cancellation of the registration of creation of a neighboring mortgage on the shares held by plaintiffs B, C, D, and E among the land of this case until the registration of creation of a neighboring mortgage on the shares held by plaintiffs B, D, and E is entered.

However, Plaintiff B, C, D, and E completed the registration of ownership transfer on October 4, 2005 or November 14, 2007 with respect to their own shares of each of the instant land and the instant building, and on or around February 2007, each of the above shares of Plaintiff B, C, D, and E was completed after the registration of ownership was completed on February 5, 2013, and each of the above shares of Plaintiff B, C, D, and E entered in the “the details of the establishment of a collateral mortgage” as to each of the above shares of each of the instant land and the instant building. However, the aforementioned facts were found to have been revoked on February 5, 2013. Accordingly, the Plaintiff B, C, D, and E had already completed the ownership transfer registration and possession without any restriction on rights to each of the above shares in accordance with the cash as stipulated in Article 47 of the former Do Government Act. Accordingly, the Defendant’s assertion on the other premise is without merit.

(c)Scope of damages for delay;

1) Article 47 of the former Do Government Act provides that a project implementer shall liquidate land, buildings or other rights within 150 days from the date specified in any of the following subparagraphs if the owner of land, etc. falls under any of the following subparagraphs, and provides that "the person excluded from the object of parcelling-out according to the management and disposal plan approved under Article 48" under subparagraph 3. Since the facts that the plaintiff B, C, D, and E were excluded from the object of parcelling-out according to the management and disposal plan approved on December 18, 2008, the defendant is obligated to pay damages for delay from December 19, 2008, which was 150 days after the next day from May 18, 2009 (the plaintiff B, C, D, and 1216 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, which were amended by Act No. 12160, Dec. 24, 2013).

2) Meanwhile, where land, etc. is liquidated in cash as it falls under the requirements prescribed under Article 47 of the former Do Government Act, the obligation to pay the settlement amount to be borne by the reconstruction association, which is the project implementer, and the obligation to pay for the registration of ownership transfer without the registration of restriction on rights to be borne by the owner, such as land, is concurrently performed (see Supreme Court Decision 2008Da37780, Oct. 9, 2008). However, where the owner of land, etc. has completed the registration of ownership transfer and the transfer of land, etc. but the registration of ownership transfer has not been cancelled, deeming that the reconstruction association may refuse payment based on the right to defense of simultaneous performance only for the settlement amount equivalent to the amount of the secured debt determined within the scope of the maximum debt amount or the maximum debt amount determined, accords with the concept of equity and the principle of good faith (see Supreme Court en banc Decision 2012Da114776

However, before November 14, 207, Plaintiff B, C, D, and E had already completed the registration of ownership transfer and the delivery of the portion of possession based on the trust regarding their respective shares among the instant land and buildings. However, the fact that the right to collateral security established with respect to each of the said shares has been entirely cancelled on February 5, 2013 is as seen earlier. The Defendant is obliged to pay the Plaintiff KRW 201,942,730 (=253,942,730 - 52 million) out of the liquidation amount of Plaintiff B, C, D, and E, the maximum debt amount of KRW 366,548,520 (= the maximum debt amount of KRW 92,548,520 - the maximum debt amount of KRW 2,608,520,000) to the Plaintiff, the maximum debt amount of KRW 66,548,520,520,6465,200,525625,64,675000)

D. Sub-determination

E) Total amount of E’s claim for settlement money is up to KRW 303,942,730 (= KRW 253,942,730 + KRW 50,000 + KRW 233,97,321 (= + KRW 32,054,5912) of the Plaintiff’s claim for settlement money is up to KRW 305.25% (= KRW 201,942,730 + KRW 32,54,591) of the Plaintiff’s claim for settlement money from May 18, 209; KRW 69,945,409 + KRW 17,000 + KRW 17,945,405; KRW 2468,965,405) of the Plaintiff’s claim for settlement money is up to KRW 2505.25% of the total amount is up to KRW 965,505,000).

4. Conclusion

The plaintiff A's claim is dismissed as it is without merit, and each claim of the plaintiff B, C, and D is justified within the scope of the above recognition, and each claim is dismissed as it is without merit. Since the judgment of the court of first instance is partially unfair, the part against the plaintiffs in the judgment of the court of first instance, including the claim extended and reduced in the trial after remand, shall be modified as above.

Judges

Judge Oral of the presiding judge

Judges Lee Do-young

Judge Maximum Wol-man

Note tin

1) Although Plaintiff A filed an application for parcelling-out to the Defendant, the former president of the Defendant’s previous association refused it and thereby became a person subject to cash settlement pursuant to Article 47 subparag. 1 of the former Do Government Act, the Plaintiff filed an argument with the purport that he/she becomes a person subject to cash settlement pursuant to Article 47 subparag. 3 of the former Do Government Act (the same shall apply to Plaintiff, B, C, and D) by stating that “the Defendant shall have been a person subject to cash settlement within 2008, Dec. 19, 2009, within 209, Mar. 19, 2009, which is within 90 days from the date following the approval plan for the management and disposal plan, which is within 9, Mar. 19, 200).

2) = 162,546,740 won ¡¿ 50 million won/ 253,546,740 won

3) = 90 million won = 50 million won x 253,546,740 won

4) = 162,546,740 won x 153,546,740 won / 253,546,740 won

5) = 90 million wonx 153,546,740 won/253,546,740 won/

6) = 162,546,740 Won x 50 million = 253,546,740 won

7) = 90 million won X 50 million won/253,546,740 won/