(영문) 서울중앙지방법원 2014.12.11. 선고 2013가합82482 제41민사부 판결

8. From 20. to the service date of the duplicate of the complaint of this case, 5% per annum and 20% per annum from the next day to the day of complete payment.

Reasons

1. Basic facts

A. The non-party D regional housing association (hereinafter referred to as the "non-party D regional housing association") is a regional housing association established for the purpose of constructing a new apartment in the Eth of South Yangyang-si, which is established for the purpose of constructing a new apartment, and is a non-corporate association under the Civil Act where the organization itself continues to exist and its important matters are determined as an organization, regardless of the organization's unique purpose, which is a collective housing construction project, and the executive body has a representative with rules and organization, and the method of resolution or execution of business is conducted in accordance with the principle of majority

B. On November 28, 2005, the non-party union borrowed respectively KRW 300 million from Defendant B, and KRW 200 million from Defendant C, and set up a right to collateral security (hereinafter referred to as the “mortgage of this case”) with respect to each of the real estate listed in the separate sheet (hereinafter referred to as “the real estate of this case”) which was owned by the association as collateral, as the registration office of the Namyang-ju District Court No. 12566 on November 28, 2005, as the beneficiary No. 125666 on November 28, 2005.

C. Defendant B applied for a voluntary auction on the instant real estate based on the instant right to collateral security and carried out the auction procedure to F. In the above auction procedure, the Plaintiff paid KRW 901,119,99 for the successful bid price with the bid price of the instant real estate, thereby filing a registration of transfer of Plaintiff’s ownership with the Namyang District Court No. 84930 on July 25, 2007, and August 20, 2007.

Based on the instant right to collateral security, Defendant B received KRW 109,547,729, and Defendant C received KRW 786,751,874, respectively.

D. On November 13, 2008, the non-party union filed a lawsuit against the plaintiff claiming the cancellation of ownership transfer registration under the Seoul Central District Court 2008Gahap112648, arguing that the plaintiff could not acquire ownership of the real estate of this case in the auction procedure conducted with the invalid right to collateral security, since the mortgage of this case was established in violation of the union's regulations.

9. On November 1, 201, the above argument was accepted and the judgment was rendered by the above court to the effect that “the Plaintiff shall implement the procedure for cancellation of ownership transfer registration in the name of the Plaintiff with respect to the instant real estate in the name of the non-party partnership.” The Plaintiff appealed as Seoul High Court Decision 2009Na95181, and the Plaintiff appealed as Seoul High Court Decision 2010Da94519, but all of the appeals were dismissed, and the said judgment was finalized on February

【Fact-finding without dispute over the ground for recognition】 Each entry in Gap's evidence of subparagraphs 1 through 3 (including branch numbers, hereinafter the same shall apply), and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff

Although the rules of the non-party union provide that the union shall adopt a resolution of the operating committee of the union in the case of borrowing money from a third party, G, who was the representative of the non-party union, concluded a loan for consumption with the Defendants without going through it. Since the above loan for consumption is null and void, the collateral security in this case is null and void as it

In addition, the right to collateral security in this case was established in violation of the rules of the non-party association, which requires a resolution of the management committee when disposing of the properties of the association. Thus, even if the rules of the non-party association do not stipulate the disposal of the properties

In order to set up a right to collateral security on the property of a union, it is invalid because it has been established without going through a general meeting of partners.

However, the Defendants received dividends from the successful bid price paid by the Plaintiff during the auction procedure commenced on the basis of invalid collateral security, and thus, are obligated to return each of the said dividends to the Plaintiff as unjust enrichment.

B. Defendants1)

1) The Defendants did not know that the representative of the non-party partnership borrowed money from the Defendant without obtaining the resolution of the board of directors of the association, and could not be known, so a loan agreement between the Defendants and the non-party partnership is valid, and therefore, the mortgage agreement between the Defendants exists in force at the time of the discharge of the secured obligation of the instant mortgage. Therefore, the mortgage

2) The Defendants believed, upon the establishment of the instant right to collateral security, that there was a resolution by the management committee of the non-party association in accordance with the bylaws, and that there exists any justifiable reason for reliance on such belief, the instant right to collateral security is valid.

3) Even if the contract establishing the instant mortgage is null and void, the non-party union filed an objection against the decision on commencing auction as stated in the first C. of this case by asserting that the mortgage of this case was null and void on May 17, 2007, and dismissed the above application, and then dismissed the appeal on July 26, 2007, and then withdrawn the appeal on July 26, 2007. Thus, the non-party union should be deemed null and void.

4) The Plaintiff filed a counterclaim with the Seoul Central District Court 2009Kahap84061 seeking damages equivalent to the proceeds of sale against the Plaintiff’s lawsuit for cancellation of ownership transfer registration filed by the Nonparty Union against the Plaintiff.

The plaintiff cannot be deemed to have suffered damage, since the judgment was rendered in favor of the plaintiff and the judgment became final and conclusive, and there is an executive title against the non-party partnership

5) Since the successful bidder is a kind of sale and is in the same position as the successful bidder, in the event that the successful bidder's payment under the contract becomes the interest of not only the other party to the contract but also the third party's creditor, the successful bidder, who is the party to the contract, cannot seek a return of unjust enrichment directly from the successful bidder who is a third party, in addition to claiming a return, etc. under the contract against the other party to the contract, so the plaintiff's claim against

3. Determination

A. The validity of the loan for consumption between the non-party union and the defendants

According to the statements in Gap evidence Nos. 3 and 4, the rules of the non-party union provide that "if the payment of contributions by members is delayed, and the overall progress of the business is not prompt, necessary funds may be borrowed and used temporarily from other offices and financial rights, subject to a resolution of the Steering Committee." However, although the president of the non-party union did not hold the Steering Committee on August 23, 2005, G where the president of the non-party union was at the time of the non-party union, he can recognize the fact of forging the minutes as if the meeting was resolved by the Steering Committee, and borrowing the total amount of KRW 50 million from the defendants around November 28, 2005, as stated in the above 1-B.

However, there is no evidence that the Defendants knew or could have known that G borrowed money from the Defendants without the resolution of the Steering Committee, so the loan agreement between the non-party union and the Defendants is valid (see Supreme Court Decision 2002Da64780, Jul. 22, 2003). The Plaintiff’s above assertion on a different premise is without merit.

B. Effect of the instant collateral security

The management and disposition of collective ownership property of a non-corporate association shall be governed by the articles of incorporation or regulations, if any, and shall be governed by the resolution of the general meeting of members unless the articles of incorporation or regulations provide for such management and disposition. Thus, the management and disposition of the general property without the resolution of the general meeting of members shall be null and void unless the articles of incorporation or regulations stipulate otherwise (see, e.g., Supreme Court Decision 2004Da45349, Jan. 27, 2006). In addition, the act of creation of the instant collective ownership constitutes an

First, considering whether there is a provision regarding the disposal of the properties of the association under the rules of the non-party association, the statement of evidence Nos. 3 and 4 alone is insufficient to recognize that the rules of the non-party association stipulate that the disposal of properties of the association, such as the establishment of a right to collateral security, should be decided by the steering committee, and there is no other evidence

Therefore, in order for the non-party union to establish the right to collateral security on its property, the resolution of the general meeting of the union members shall be made in accordance with the above legal principles. Thus, the fact that the right to collateral security in this case was established without the resolution of the general meeting of the union members does not conflict between the parties, or can be recognized by comprehensively considering the whole purport of the pleadings. Thus, the registration of establishment of the right to collateral security in this

C. Return of unjust enrichment

If a decision to commence the auction becomes final and conclusive due to the extinction of the secured claim even though the mortgage was extinguished due to the extinction of the secured claim, the decision to commence the auction procedure is invalid based on the extinguished mortgage, and even if the purchaser paid the sale price in full, it is not possible to acquire the ownership of such real estate (see, e.g., Supreme Court Decision 2011Da68012, Jan. 12, 2012). The same applies to cases where a mortgage is null and void. In such cases, purchase is made

A person may seek the return of the proceeds from sale to the creditor who received a dividend in accordance with the legal doctrine of unjust enrichment (see, e.g., Supreme Court Decision 2003Da59259, Jun. 24, 2004).

As above, it is reasonable to view that the Defendants, who received dividends from the Plaintiff during the invalid auction procedure, based on which the decision to commence the auction was rendered on the instant collateral security, had accrued profits equivalent to the amount of such dividends and caused damages to the Plaintiff, without any legal grounds.

Therefore, as to the Plaintiff, Defendant B, Defendant C, Defendant C, and each of these costs of KRW 786,751,874, the filing date of the instant lawsuit from November 12, 2013, which is the date of the instant lawsuit, are obligated to pay 5% per annum under the Civil Act until December 11, 2014, and legal interest or delay damages calculated at the rate of 20% per annum as stipulated under the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from the next day to the date of full payment (Article 748(2) of the Civil Act). The Plaintiff is obligated to return interest with interest paid (Article 748(2) of the Civil Act). However, the Defendants are entitled to seek legal interest from August 20, 207, which is the date of the instant lawsuit against the Defendants, and the Defendants are obligated to return legal interest or delay damages from the date of the instant lawsuit to the beneficiary of unjust enrichment from the date of the first lawsuit to December 13, 2014).

D. Determination as to the defendants' assertion

1) As to the assertion of ratification of invalidation

Ratification of invalidation is a sole act with the knowledge of invalidation, etc. and with the effect of such an act to belong to himself/herself. However, in order to recognize implied ratification, the person himself/herself has fully understood the legal status of the person's act and has yet to be understood as the person's act.

There should be circumstances to deem that the outcome of the act is recognized to belong to himself/herself based on his/her intent (see Supreme Court Decision 2010Da83199, 83205, Feb. 10, 201).

According to the evidence No. 1, the non-party union asserted that the mortgage of this case was null and void, and raised an objection against the decision of commencement of auction as stated in No. 1-C of May 17, 2007, but the above application was dismissed on May 23, 2007. The non-party union appealed against it on June 5, 2007 but appealed on July 26, 2007, but the appeal was withdrawn on July 26, 2007. However, it is insufficient to view that the non-party union approved the effect of the contract of the non-party union even though it was aware that the contract of the mortgage of this case was null and void, and there is no other evidence to view the above assertion by the defendants.

2) As to the plaintiff's assertion that he did not cause losses

According to the evidence evidence No. 3, the non-party union filed a counterclaim against the plaintiff for a claim for the payment of KRW 1,00,000,000 and the delayed payment damages for the sale price under the 2009Gahap84061, July 23, 2009, in which the plaintiff filed a lawsuit against the plaintiff for the cancellation of the former registration, such as the statement No. 1-C., in which the non-party union filed a lawsuit for the cancellation of the former registration with the plaintiff. The plaintiff can be acknowledged as the facts that the judgment became final and conclusive on February 9, 201, upon being sentenced in favor of the plaintiff on September 11, 2009 by the above court.

However, even if the plaintiff and the non-party union obtained the final judgment and became executive titles, it cannot be said that the plaintiff does not have any damage to the plaintiff. Thus, the defendant's assertion is without merit.

3) As to the assertion that the Defendants did not return unjust enrichment since they were a third party in the auction procedure

Auction is a kind of sale and purchase (Supreme Court Decision 99Da23901 delivered on February 8, 2002). In a case where payment under the contract becomes the benefit of a third party as well as the other party to the contract, the party to the contract who provided the payment.

In addition to claiming counter-performance under a contract against the contracting party, a direct claim for return of unjust enrichment cannot be made against the third party (see Supreme Court Decision 2011Da48568, Nov. 10, 201). However, in the instant case, the Plaintiff does not claim for return of unjust enrichment on the ground that the bid price paid by the Plaintiff was the benefit of the Defendants, but did not claim for return of unjust enrichment on the part of the Defendants, on the ground that the collateral security right of the Defendants is null and void, so the above legal principle cannot be applied. Accordingly, Defendant C’s aforementioned assertion is without merit.

4. Conclusion

The plaintiff's claim is accepted within the scope of the above recognition, and the remainder is dismissed as it is without merit.