2016 Ghana 343165 Return of the amount of deposit

1. A;

2.B

3.C

D non-real estate trust company

March 20, 2018

April 3, 2018

1. The Defendant does not limit the balance of the Fund Management Account:

A. 20,000,000 won against the Plaintiff A;

B. 28,230,000 won against Plaintiff B;

C. Plaintiff C 20,000,000 won

In addition, each of them shall pay 5% interest per annum from September 27, 2016 to April 3, 2018, and 15% interest per annum from the next day to the date of full payment.

2. The plaintiffs' remaining claims are dismissed.

3. Of the costs of lawsuit, 50% is borne by the Plaintiffs, and 50% is borne by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff A 20,000,000 won with the amount of 28,230,000 won and the amount of 28,230,000 won from September 18, 2014; from April 30, 2014 to the plaintiff Eul; from July 15, 2014 to the delivery date of a copy of each complaint of this case; from July 15, 2014 to the delivery date of a copy of each complaint of this case; 5% per annum from the next day to the day of complete payment; and 15% per annum from the next day to the day of complete payment.

1. Facts of recognition;

A. (tentative Name) D Regional Housing Association (hereinafter referred to as the “instant association”) was established for the new construction project of the 998 household units (hereinafter referred to as the “instant project”) on the ground of the 75s of Busan Shipping Daegu E, Busan, and the 75s of land. On September 19, 2014, the Defendant entered into a contract for the promotion committee of the instant association and the business agent for the implementation of the instant project with the Hyi tin C&D Co., Ltd. and the fund management agent contract (hereinafter referred to as the “instant agency contract”).

B. The Plaintiffs respectively entered into an membership agreement with the instant association promotion committee, and Plaintiff A paid KRW 20 million in total, including KRW 3 million for subscription on January 7, 2014, KRW 17 million for the first time on September 18, 2014, KRW 3 million for the first time following the date, KRW 3 million for the first time following the date, KRW 11,150,000 for the second time of the same month, KRW 11,150,000 for the second time of the same year, and KRW 11,150,000 for the third time of July 21 of the same year, and KRW 3 million for the Plaintiff C paid each contribution on January 7, 2014, KRW 17 million for the first time of the same year and KRW 11,150,000 for the first time of the same year and KRW 27 million for the first time of the same year.

C. Meanwhile, the application for authorization to establish a housing association submitted by the committee of promoters of the instant association was returned as of March 3, 2015. The grounds for return revealed by the competent authority include ① lawful securing of right to use the site for the housing construction project, ② conflict with the standards for the maximum height of buildings for each block (42m), ③ failure to meet the legitimate requirements for joint business under Article 10 of the Housing Act as already submitted by the application for authorization to establish the committee of promoters before the application date for authorization to establish the committee, ④ failure to go through a new procedure for election of the chairperson of the promotion committee after the death of the promotion committee chairperson, and ⑤ unjust designation of apartment buildings and number.

D. Even after the return of the application for authorization to establish an association, the promotion committee did not seek an acting director after the death of the promotion committee chairperson and did not proceed properly.

[Reasons for Recognition] Facts without a partial dispute, Gap 1 and 2 evidence 1, 2, 3, Gap 3, and Gap 4 evidence 1 to 2

4. Each entry of evidence No. 2 and the purport of the whole pleadings

2. Summary of the parties’ assertion

A. The plaintiffs' assertion

The establishment of the association of this case promoted by the committee for promotion of the association of this case was no longer established. This is due to illegal recruitments, such as allocating the housing units that can be allowed after the establishment of the association at the recruitment stage, as well as the housing complex purchase itself from the wife to the housing complex.

Since the possibility of re-promotion of the instant project has disappeared due to various circumstances even after the Chairperson’s suicide, a member joining agreement entered into between the Plaintiffs and the Promotion Committee has occurred due to nonperformance or change in circumstances.

Accordingly, the plaintiffs have the right to claim the refund of partnership contributions held against the promotion committee of the association of this case.

The association contributions shall be returned to the defendant on behalf of the committee of promoters, which is currently insolvent, with the preserved bonds.

B. Defendant’s assertion

As to this, the defendant,

(1) Since the Plaintiffs did not terminate the membership agreement of the instant association, there is no preserved claim, and there is no preserved claim.

(2) There is no ground to deem the instant promotion committee as insolvent; and

(3) Even if the contract period of the instant agency contract remains, and the obligation to return the partnership contributions is recognized to the Defendant, the committee of this case and the Defendant asserted that the Defendant is only liable within the extent of the balance of the partnership contributions remaining in the current fund management account under the instant agency contract concluded between the committee of this case and the Defendant.

3. Determination

(a) Occurrence of preserved claims;

The fact that the plaintiffs entered into a membership agreement with the promotion committee of the instant association and paid each association share, and the litigation period for filing an application for the establishment authorization of the housing association applied for by the promotion committee of the instant association after the return as of March 3, 2015 is not only the litigation period, but also the application documents for resolving the reasons for return are not prepared, and the fact that the proxy failed to seek early reimbursement after the death of the promotion committee chairperson is as seen earlier.

In light of the above facts, a joint membership agreement concluded between the plaintiffs and the promotion committee of the association of this case is deemed to be impossible to achieve the purpose at present, and thus, it is deemed that there was a serious reason to maintain the contract. The defendant who is in the position to keep the investment under the agency contract concluded between the promotion committee of this case and the promotion committee of the association

As long as the committee for promotion of the association of this case seeks a claim for return of the amount of investment on behalf of the committee for promotion of the association of this case, it is reasonable to view that the contract of this case was lawfully terminated through service of a copy of the complaint

Meanwhile, in order for the plaintiffs to terminate the membership agreement of this case, the defendant asserts that there is no termination of the plaintiffs' membership agreement of this case on the grounds that there is an agreement with the promotion committee as stipulated in Article 8 (5) of the contract in order for the plaintiffs to terminate the membership agreement of this case, but this premises that the business promoted by the promotion committee is smoothly carried out (in the case of withdrawal and expulsion from the promotion committee, it can be seen that it is possible to recruit or recruit substitute members for the smooth progress of the business), and therefore, it seems that the continuous promotion of the business is not possible at present, and it is reasonable to view that the continuation of the membership agreement of this case cannot be asserted on the grounds that there was no agreement with the promotion committee based on the above provision in an unclear situation where the promotion committee and the chairperson of the promotion committee exist.

나. 채권보전의 필요성 여부에 콴한 판단

In the following circumstances, the evidence No. 3 and evidence No. 4-1 to No. 4 were recognized as follows: (i) the matters related to the assets of the promotion committee revealed by the competent authority after the return of the application for authorization to establish the promotion committee of the instant association after the return of the application for authorization to establish the promotion committee; (ii) the application for extension of retention period was rejected on or before December 31, 2014; (iii) the lawsuit was concluded as the withdrawal of the lawsuit because the promotion committee was not present even in the lawsuit disputing this; and (iv) the cancellation of the temporary building and the re-promotion of the corrective order of the temporary building and the imposition of the enforcement fine were continued on September 2, 2015; (iv) there was no details imposing taxes from January 1, 2016; and (iii) as of March 29, 20

In light of the fact that the amount in arrears exceeds 40,385,950 won, the promotion committee of the instant association seems to have been clearly insolvent at the time.

Furthermore, in addition to the fact that the promotion committee of this case does not engage in any activity for the project of this case after the return of the application for authorization to establish the housing association, it is reasonable to view that the promotion committee of this case is insolvent even until the closing date of argument of this case, unless there are special circumstances.

C. Scope of return

The defendant asserts that the defendant has a duty to return to the plaintiffs within the extent of the balance of partnership contributions remaining in the funds management account under the instant agency contract.

In full view of the facts that there is no dispute between the parties, or that the term of the instant agency contract concluded between the committee of promoters and the defendant on September 19, 2017, the term of the instant agency contract concluded between the committee of promoters and the defendant on behalf of the committee of promoters and the defendant on behalf of the committee of promoters on behalf of the defendant on behalf of the committee of promoters on behalf of the defendant on behalf of the committee of promoters on behalf of the defendant under the instant agency contract of this case is in charge of revenue and passbook deposited in the fund management account, and the fund management account is defined as "one account opened in the name of the fund manager (including subscription money and cooperative contribution)" as "one account opened in the name of the fund manager" when the items to be paid under this contract are disbursed. In addition, when the agency contract of this case is terminated or the agency work of this case is terminated or terminated, it is recognized that the trustee and the defendant are not fully responsible for the settlement of the results of this business, and no intentional or gross negligence is liable for damages.

As long as tort liability by gross negligence is not recognized, it shall be held that the plaintiffs who seek the return of the investment of this case shall be liable only to the extent of the balance of the fund management account managed under the relevant agency contract.

In addition, where a trustee bears liability within the extent of trust property, the obligee’s order of execution against the trustee should clearly state the purport of ordering payment within the extent of trust property in order to restrict executory power so that compulsory execution against the trustee’s own property can not be conducted (see, e.g., Supreme Court Decision 2009Da83797, Feb. 25, 2010).

D. Sub-committee

Therefore, within the limit of the balance of the “Fund Management Account”, the Defendant: (a) sought payment of KRW 20,00,000, KRW 28,230,000 to Plaintiff B, and KRW 20,000,00 to Plaintiff C on the day following the delivery date of the copy of the complaint of this case (the last payment date of the contribution based on the membership agreement of this case; (b) as long as the Plaintiffs seek the return of the contribution due to the termination of the membership agreement of this case, the obligation to return to the Defendant only when the termination of the contract takes effect; (c) under the premise that the termination of the contract takes effect on September 27, 2016, this part of the Plaintiffs’ claim is without merit); and (d) as to the existence and scope of the obligation of this case from September 27, 2016 to April 35, 2018, which is the date of this case’s decision, the obligation to pay 15% interest per annum from the next day of this case.

4. Conclusion

If so, the plaintiffs' claim of this case is justified within the scope of the above recognition.

The remaining claims shall be dismissed as it is without merit, and it is so decided as per Disposition.

Judges Shin Jae-chul

1) The third contribution is submitted only to the deposit data of KRW 1,15,000 out of the total amount (as of July 21, 2014), but it appears that the entire amount was paid in light of the method of paying the second contribution of the same amount.

2) The Plaintiffs also paid business service charges in addition to each of the aforementioned contributions.