2013 Gohap54109 Action for Claim for Damages

Cable Infrastructure Corporation, Inc.

Succession Intervenor Co., Ltd., Israfluel L

1. Multiom Co., Ltd.;

2. A;

September 22, 2014

October 15, 2014

1. The plaintiff succeeding intervenor's claims against the defendants are all dismissed.

2. The costs of lawsuit shall be borne by the intervenor succeeding to the plaintiff.

The Defendants jointly and severally pay 1,930,000,000 won to the Intervenor succeeding to the Plaintiff and 20% interest per annum from the delivery date of a copy of the instant complaint to the full payment date.

1. Basic facts

A. On February 22, 2011, Defendant Daom Co., Ltd. (hereinafter referred to as “Defendant Co., Ltd”) purchased KRW 12.46 billion from 60 to 85 square meters for the designated purpose as a multi-unit housing site in Chuncheon-si, Do-si, 1138 to 18,504 square meters (hereinafter referred to as “instant land”) between the Korea Land and Housing Corporation on February 22, 201, and purchased KRW 1.254,6 million for the down payment on August 22, 201, on the date of the contract; and the remainder of the purchase payment shall be paid KRW 2.8 billion on August 22, 201, on the date of the contract; and each of the above sales contract shall be paid KRW 2.8 billion on February 22, 2012; and on February 17, 2013 (hereinafter referred to as “instant contract”).

B. On December 12, 2012, the Defendant Company: (a) intended to carry out a housing construction project directly on the instant land, but intended to revise the project plan in the form of a regional housing association; and (b) on December 12, 2012, the Defendant Company entered into an agreement on the business of newly constructing and selling an apartment with 340 households and ancillary welfare facilities (hereinafter “the instant apartment”) on the instant land in the position of a contractor of a regional housing association with [tentative] Chuncheon regional housing association; and (c) New Daily Co., Ltd., in the position of a contractor, in the position of a contractor, on the instant land, as to the instant apartment with 340 households and ancillary welfare facilities on the 18th floor or upper ground (hereinafter “instant apartment”). Of these, the relevant content of the instant case

Section 3(1) After the conclusion of this Arrangement, the Defendant Company shall carry out the tasks relating to the acquisition of the project site and the permission of the project through the Land Sales Contract. For the smooth promotion of the project, the Parties to this Arrangement shall carry out in good faith the tasks falling under any of the following subparagraphs, and shall be responsible therefor:

1. The Defendant Company’s business scope 1) The purpose of this Agreement is to secure the ownership of the entire site of the project and related affairs (including disposal of ground obstacles, removal, packing and securing of access roads, cancellation of restricted real rights, transfer registration, transfer of ownership, adjustment of rights, survey and cadastral adjustment, order completion, etc.) and to bear all the duties and expenses to be performed by the Defendant Company as the business agent in relation to the implementation of the project (4) and other affairs related to the project (5). After the conclusion of this Agreement, an application for the approval of the new project plan should be made by the Defendant Company after consultation with the new company on the establishment of the project plan (including an application for membership recruitment, new recruitment of association members, withdrawal of association members, withdrawal of association members, change of association members, etc.), and an application for the approval of the new project plan (7) at least 90% after the completion of the establishment of the project (including the common affairs of the Defendant Company and New Company). The application for the approval of the project plan shall be made by the Defendant Company after completion of the establishment plan.

C. On December 31, 2012, Defendant Company delegated Defendant Company’s business affairs with respect to the recruitment of union members of the instant project to the channel infrastructure operator, and the channel infrastructure operator entered into a sales agency agreement with the content of the instant case as follows (hereinafter “instant sales agency agreement”). Of which, the content of the instant case is as follows (hereinafter “instant sales agency agreement”).

Section 3. (Scope of Services by Proxy) 1. Payment of the advertising cost and 2. Payment of the advertising cost and 0. Payment of the advertising cost and 0. Payment of the advertising cost and 0. Payment of the advertising cost and 0. Payment of the advertising cost and 0. Payment of the advertising cost and 0. Payment of the advertising cost and 0. Payment of the advertising cost and 0. Payment of the advertising cost and 0.0. Payment of the advertising cost and 0.0. Payment of the advertising cost and 0.0. Payment of the advertising cost and 0.0. Payment of the advertising cost and 0.0.00. Fee and 0.0. Fee and 0.0. Fee and 0.0. Fee and 0.0. Fee and 1.0. Fee and 0.0.0.0.0. Fee and 6.0.0.0.0.00. Fee and 6.0.0.0.0.01.00.00.00.00.00.

When recruiting 50% of the 60% of the fees for filing a claim for 30% of the fees when filing an application for the establishment of an association;

D. On June 17, 2013, the Korea Land and Housing Corporation, where channel infrastructure managers collected members for the instant project under the instant sales agency agreement, cancelled the instant sales contract on the grounds that the Defendant Company paid only the down payment of the purchase price of the instant land, and did not pay all the remainder of the purchase price to be paid at intervals of six months thereafter.

E. On July 2, 2013, the Defendant Company sent a public notice to the channel infrastructure operator stating that “it was unable to achieve the goal of 50% or more of the recruitment of union members until the end of May, 2013, as well as to fulfill the promise of 80% or a maximum of 95% until June 30, the expiration date specified in Article 5 of the instant sales agency contract, and thus, the instant sales agency contract should be terminated.”

F. On July 15, 2013, a channel infrastructure supplier sent an answer to the Defendant Company stating, “The contract term is the first six months, and the Defendant Company opened a model house on April 26, 2013 due to the reasons attributable to the Defendant Company, and the expiration date has not yet yet arrived, and if the Company wishes to terminate the contract, it would be desired to settle the accounts under the instant parcelling-out agency contract.”

G. Meanwhile, as between the Plaintiff’s successor on November 16, 2013, the channel infrastructure entered into an agreement with the Plaintiff on the assignment of claims with the content that the channel infrastructure transfers the “claim worth KRW 1.938 million in the litigation amount of the lawsuit amount of 1.938 million to the Defendant Company,” which the channel infrastructure manager has against the Defendant Company, such as the sales agency and advertisement fee of the housing association in the Dong-si area, the private sector, and the criminal procedure (litigation between the channel infrastructure and the Defendant Company). On June 3, 2014, the said notice was delivered to the Defendant Company around that time.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 16, 17, 18, Eul evidence No. 9-1 through 7, and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's successor's assertion

1) In order for channel infrastructure users to carry out the sales agency business, the sample house of the instant apartment is necessary. The Defendant Company built a model house around April 2013, and the Defendant Company instructed the channel infrastructure users to start the recruitment of union members of the instant project from April 2013. Accordingly, the channel infrastructure users can perform the recruitment business of union members for the instant project from the end of April 2013, and thus, six months during the sales agency period should be counted from April 2013.

2) The channel infrastructure entity received a prior promise from 107 households, but the rest of the 21 household units excluding the 21 household units have waived the offer, and thereafter, recruited 117 households as a regular member by recruiting 56 household units, as well as recruited 225 households by adding pre-pre-contracteds and household members to pre-contracteds and household members.

3) Although channel infrastructure managers performed the recruitment of members as above, the sales contract of this case was canceled because the Defendant Company failed to pay the purchase price of the land of this case to the Korea Land and Housing Corporation, and accordingly, the obligation of the Defendant Company to provide the land of this case was impossible to perform the duty of the Defendant Company to vicariously sell the land of this case. Thus, it is inappropriate for the Defendant Company to notify the termination of the sales agency contract of this case, and instead, the channel infrastructure users lawfully terminated the sales agency contract of this case due to the Defendant

4) According to the instant parcelling-out agency contract, the Defendant Company agreed to compensate for the performance interest of the channel infrastructure when the Defendant Company unilaterally harmed the contract. The Defendant Company is obligated to compensate for the performance interest even when the contract is terminated due to the cause attributable to the Defendant Company. The ratio of the distribution of the responsibility of the channel infrastructure under the instant parcelling-out agency contract is 95%, and the sales agency fee per household is

Since the defendant company is KRW 6 million, the defendant company is obligated to pay KRW 1,938,00,000 to channel infrastructure users (=6,000 of the total number of households of the apartment of this case 340 households x 95% of the total number of households of the apartment of this case).

5) According to the instant parcelling-out agency contract, Defendant A jointly and severally guaranteed the payment of the commission to the Defendant Company. Therefore, the Defendants jointly and severally are liable to pay the Plaintiff’s succeeding intervenors the claim equivalent to the commission fee for the instant parcelling-out agency contract from the channel infrastructure, to the Plaintiff’s succeeding intervenors, who received the claim equivalent to the said commission for the instant parcelling-out agency contract, as well as damages for delay.

B. The defendants' assertion

1) The Defendant Company did not have an obligation to build a model house, but the Defendant Company is to build a model house, but the channel infrastructure is not able to perform the business of selling the model house on behalf of the Defendant Company, and the channel infrastructurer performed the business of recruiting members from January 9, 2013, immediately after the conclusion of the instant sales agency contract, and the business of inviting members of the channel infrastructure is not delayed due to the delay in the construction of the model house.

2) The number of members recruited by channel infrastructure managers is limited to 117, and the number of members recruited by not later than June 30, 2013, which is the expiration date of the sale agency period, is only 80 households.

3) The channel infrastructure operator failed to achieve the allotment rate of 50% agreed upon in the instant sales agency contract by the expiration date of the period of sales agency. The termination of the sales agency contract of the Defendant Company is legitimate and the Defendant Company is the channel infrastructure, the channel infrastructure, or the Plaintiff’s successor’s claim seeking compensation for the performance benefits under the sales agency contract of the instant sales agency contract

4) Even if the liability for damages of the Defendant Company is recognized, the Defendant A merely guaranteed the obligation to pay the sales agency fee to the Defendant Company’s channel infrastructure, but not jointly guaranteed the liability for damages. The claim against the Defendant A is without merit.

3. Determination

A. Whether the termination of the defendant company is legitimate

1) The Defendant Company failed to achieve 80% of the share-out ratio of liability with respect to the recruitment of union members until June 30, 2013, which is the expiration date of the period of vicarious sale under the instant vicarious sale contract. The Defendant Company asserts that the instant vicarious sale contract was legally terminated on the ground of the nonperformance by the channel infrastructure.

2) According to Article 5(1) of the instant parcelling-out agency contract, the period of parcelling-out agency contract from December 31, 2012 to June 30, 2013, which is the date of entering into the instant parcelling-out agency contract, provides that the period of parcelling-out shall be at least 80% among the total 340 households of the instant apartment complex, and at least 95% among the total 340 households of the instant apartment complex. The Defendant Company: (a) on July 2, 2013, failed to achieve the goal of at least 50% of the recruitment of members by the channel infrastructure until the end of May; and (b) failure to implement the promise of at least 80% to 95% of the expiration date of the period specified in Article 5 of the instant parcelling-out agency contract; (c) as seen earlier, only the total number of members of the instant apartment complex shall be 30% of the sales agency contract and the total number of members of the Defendant Company, including the 20.3.

3) However, channel infrastructure entities conduct sales agency services under the sales agency contract of this case

The above should be premised on securing ownership (or right to use and benefit) of the land of this case, which is the site for the project of this case. The defendant company is obligated to acquire and maintain ownership (or right to benefit) of the land of this case so that the channel infrastructure, which is a sale agent, can carry out the sale business under the sale agency contract of this case. The fact that the defendant company cancelled the sales contract of this case on or before June 17, 2013 that the Korea Land & Housing Corporation failed to pay the purchase price for the land of this case is recognized as above. Thus, it is reasonable to view that the defendant company already violated the duty under the sales agency contract of this case to acquire and maintain ownership (or right to benefit from use and benefit from the land of this case) of this case to the channel infrastructure of this case, and according to the purport of the whole arguments and arguments, the owner of the land of this case, which is a multi-unit housing of this case, purchased the land of this case from the defendant company of this case and the Korea Land and Housing Corporation of this case, which is not the sale contract of this case.

4) If so, the sales contract of this case was cancelled and the defendant company lost its status as purchaser of the land of this case, and the sales contract of this case was concluded on July 2013 by the defendant company.

2. The notice of termination cannot be said to be invalid as it was made under the condition that one’s contractual obligation in the bilateral contract was impossible to perform, and thus, it cannot be said that the channel infrastructurer has terminated the instant parcelling-out contract on the ground of the Defendant Company’s nonperformance of obligation.

The fact that the duplicate of the complaint in this case was served on the Defendant Company on December 5, 2013 is obvious, and the sales agency contract in this case was terminated around December 5, 2013 due to the Defendant Company’s nonperformance of obligation.

B. Whether to recognize compensation for performance interest

1) The Plaintiff’s succeeding intervenor asserts that if the instant sales agency contract was not terminated due to the reasons attributable to the Defendant Company, the channel infrastructure user obtained the benefit of KRW 1,938,00,000 due to the performance of the contract (i.e., the total number of 340 households of the instant apartment, 95% of the total number of households x 6,00,000,000).

2) According to Article 5(1) of the instant parcelling-out agency contract, the rate of sale of the responsibility of channel infrastructure holders is set at at least 80% among 340 households, which are the entire households of the instant apartment complex, and at least 95%. According to Article 6(1) of the instant parcelling-out agency contract, the fact that the cost per household is 6,00,000 won is recognized as above.

3) However, according to Article 1(1) of the Special Clause of the sales agency contract of this case, if the recruitment of 170 households equivalent to 50% of the total number of households recruiting all members is 340 households, the channel infrastructure operator is entitled to claim a commission from the defendant company. Only if the recruited members fully pay the down payment, the channel infrastructure operator may be entitled to receive the sales agency fee. The channel infrastructure operator recruited 80 members who completely paid the down payment by June 30, 2013 and recruited 23.52% of the total households of the apartment of this case, which is 340 households of the apartment of this case, and collected about 23.52% of the total households of the 340 households of the apartment of this case. If the whole purport of arguments in the letter of evidence No. 4 and 5 is combined, the channel infrastructure operator recruited 74 households until June 17, 2013 from the defendant company of this case, and the company of this case from the defendant company of this case.

After July 2, 2013, upon receipt of the notice of termination of the bilateral agency contract, 117 households are recruited as regular members until September 23, 2013.

According to the above facts, the channel infrastructure recruited only 74 households as regular members until the time when the sales contract of this case was terminated, and thereafter continuously recruited its members, and thereafter recruited its members. Even if the Defendant Company fulfilled its duty to acquire and maintain the ownership of the land of this case (or the right to use and profit from the land of this case), the channel infrastructure operator could not recruit its members until June 30, 2013, which serves as the basis for claiming the sales agency fee, until June 30, 2013. Thus, it is insufficient to recognize that the channel infrastructure operator obtained profit equivalent to 1,938,00,000 won due to the implementation of the sales agency contract of this case, and there is no evidence to acknowledge otherwise.

Therefore, the plaintiff succeeding intervenor's claim seeking compensation for performance interest against the defendants is without merit.

4) To this end, the channel infrastructure and the Plaintiff’s successor asserted that the Defendant Company provided samples necessary for the recruitment of union members when around April 26, 2013, and that the period of sales agency for six months should be calculated from that time.

However, the following circumstances, i.e., Gap evidence Nos. 3 and Eul evidence Nos. 4 and 5, which can be known by integrating the overall purport of the pleadings, i.e., ① channel infrastructure operator, from January 9, 2013 to June 2013 under Article 3 (1) 7 of the sales agency contract of this case, stating to the defendant company the subscription and contract status of the recruitment of union members for the business of this case, publicity status, details of major business activities, etc.

Since January 9, 2013, channel infrastructure has submitted a business report, in light of the fact that the defendant company has performed the recruitment of members from around January 9, 2013, ② that the defendant company does not have any provision on the timing of providing the sample house in the sales agency contract of this case, ③ that there is only a model house, and ③ that it is not possible to recruit members, the defendant company's delay in providing the sample house is not included in the period of sales agency, and the plaintiff's successor's above assertion is without merit

C. Whether to recognize compensation for trust interests;

The Plaintiff’s succeeding intervenor spent the total of KRW 1,220,565,290 in trust of the performance of the instant sales agency contract by channel infrastructure (i.e., labor cost of KRW 673,45,00 in + labor cost of KRW 421,110,290 in advertisement advertisement cost of various advertisements). As such, the said money asserts that channel infrastructure is the minimum amount to be compensated by the Defendant Company, the Defendant Company is obligated to compensate for the said KRW 1,220,565,290 to the said channel infrastructure or the Plaintiff’s succeeding intervenor.

In full view of the overall purport of the arguments, evidence Nos. 21 and 22 of the statement, which is a channel infrastructure, stated that the channel infrastructure operator spent 673,45,00 won for the recruitment of union members of the instant project. The fact that the channel infrastructure operator advertised various advertisements for the recruitment of union members through the distribution of leaflets, the production of banner, online, etc., but the following circumstances, which can be seen by comprehensively considering the overall purport of each of the above evidence, are the documents prepared by the channel infrastructure operator, namely, the evidence Nos. 21 and 22, which arranged the details of personnel expenses and various advertising advertising expenses spent by the channel infrastructure operator, are not attached to the document prepared by the channel infrastructure operator. Of labor expenses claimed by the channel infrastructure operator, a considerable amount of money is from the order of November 2012 to the order of 2012, which is prior to the conclusion of the instant sales agency contract.

12. In light of the fact that the payment was made by the end of the end or was made after June 30, 2013, the expiration date of the sale agency period, there is insufficient evidence to acknowledge that: (a) evidence No. 21, No. 222 of the Act alone is insufficient to recognize that the channel infrastructure used the performance of the sales agency contract in this case to believe the performance of the sales agency contract in this case; and (b) there is no evidence

Therefore, the plaintiff succeeding intervenor's claim seeking compensation for trust interest against the defendants is without merit.

4. Conclusion

Therefore, the plaintiff's claim against the defendants by the succeeding intervenor is without merit, and it is so decided as per Disposition with the dismissal of all the claims.

Judges O Jae-sung

Judges Doz.

Judges Kim Jong-tae