2016 Gohap 52933 Services Costs

Co., Ltd.

Lawing the Construction and Improvement of Housing Units

January 24, 2017

February 14, 2017

1. The defendant shall pay to the plaintiff 364,882,90 won with 15% interest per annum from April 30, 2016 to the day of complete payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. Status of the parties

1) The Plaintiff is a specialized management businessman under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents

2) On November 12, 2015, the Defendant succeeded to the rights and duties of a cooperative established under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents for the purpose of conducting a housing reconstruction improvement project (hereinafter “instant project”) of 491-3 and 5 lots of land, Seo-gu, Seo-gu, Incheon, Seo-gu, Seo-gu, Incheon (hereinafter “the instant project”), and a telegraph, a telegraph, the Housing Reconstruction Promotion Committee for Small and Medium Enterprise, and the rights and duties of a cooperative established under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents for the purpose of

(b) Conclusion of a service contract for rearrangement project management entities;

1) In order to select a specialized management businessman of rearrangement projects, the Defendant issued a public announcement of tender according to the method of competitive bidding, and selected the Plaintiff as a specialized management businessman of rearrangement projects. According to the above selection, the Defendant entered into a contract for specialized management businessmen of rearrangement projects (hereinafter “instant service contract”) on April 26, 2010 for the Plaintiff and the instant business, and the main contents thereof are as follows.

Article 1 (Purpose of Contract) For the successful performance of the project in this case, the defendant shall entrust the service to the plaintiff, and fully cooperate with the plaintiff so that the plaintiff may faithfully perform the service agency business, and the plaintiff shall cooperate with the overall affairs and perform the entrusted affairs in good faith for the defendant's smooth implementation of the project.Article 2 (Scope of Duties) (1) The defendant shall perform the proper duties as the project operator. (2) The scope of the service duties of the improvement project to be performed by the plaintiff shall perform the duties of each subparagraph based on Article 69 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents. (1)

Article 3 (Period of Performance of Duties) The Plaintiff’s performance of duties is as follows: (1) The date of commencement of the instant service contract between the date of conclusion of the instant service contract and the date of completion thereof: The Defendant shall pay service fees to the Plaintiff on the basis of the total floor area of new buildings determined and publicly notified at the time of designation of an improvement zone x 34,00 won per square year (value-added tax separate) until the date of the dissolution general meeting. In principle, the Defendant shall pay the Plaintiff for the payment of the service fees within 20 days from the date of conclusion of the contract to the fourth intermediate payment, but the payment for the payment from the fifth intermediate payment shall be made within 10 days from the date of payment. ① The Defendant and the Plaintiff may not terminate the instant service contract unilaterally without justifiable grounds except for the following subparagraphs. If the Plaintiff is unable to perform his/her duties on account of a natural disaster, etc.

When the plaintiff cannot achieve the purpose of a contract due to the violation of the terms and conditions of the contract, the plaintiff may waive the loan to the defendant without any condition, and the plaintiff may not file a claim against the defendant under any pretext. However, when the plaintiff terminates the contract without any justifiable reason, if the defendant fails to perform this contract, the business promotion is delayed or suspended due to the reason attributable to the defendant. When the contract is terminated due to the defendant's circumstance, the defendant shall pay the loan and service expenses incurred regardless of the remaining agency business to the plaintiff without any legal objection. Article 10 (Loan Support) plaintiff shall provide the defendant with the funds in the following subparagraphs at the time of the conclusion of the service contract in this case, and the period shall be up to three months from the date of receiving the operating funds from the contractor (the date of the general meeting of the work executor selection). The loan shall be made under the agreement between the defendant and the plaintiff on the loan support and the defendant, and the right to request the plaintiff to receive the loan or loan loan funds in this case, or shall be made under the agreement between the plaintiff and the service company.

2) Meanwhile, on February 2, 2010, the Plaintiff, while participating in a tender for the selection of a management entity specialized in improvement projects, prepared a written statement of performance stating that the expenses required for participating in the tender and the expenses required until the waiver should not be fully claimed if the project of this case is waived due to the occurrence of a cause for continuing failure to implement the project of this case, and issued it to the Defendant.

(c) Conclusion of cash loan contracts;

1) On April 26, 2010, the Plaintiff leased KRW 50 million to the Defendant, and entered into a monetary loan agreement with the Defendant and the Defendant, where the Defendant and the Defendant select a contractor and receive a financing or tender bond from the contractor, the Plaintiff and the Defendant agreed to repay the loan within 20 days from the date on which the contractor was selected.

2) On December 15, 2010, the Plaintiff leased KRW 30 million to the Defendant, and entered into a monetary loan agreement with the Defendant and the Defendant, where the Defendant and the Defendant select a contractor and receive a financing or tender bond from the contractor, the Plaintiff and the Defendant agreed to repay the loan within 20 days from the date on which the contractor was selected.

3) On June 3, 2011, the Plaintiff leased KRW 5 million to the Defendant, and entered into a monetary loan agreement with the Defendant and the Defendant (hereinafter collectively referred to as the “money loan agreement of this case”) with the content that the Defendant would collect funds from the contractor or redeem the loan within 10 days from the date the bid bond of the contractor was deposited into the Defendant’s account.

4) When the Plaintiff entered into a monetary loan agreement with the Defendant, the Plaintiff agreed to repay the loan that the Defendant paid to the Plaintiff when the right to service of the instant business, which the Defendant granted to the Plaintiff, is transferred to another service company, or when the instant service agreement is terminated or terminated.

D. Filing a lawsuit claiming for service fees, etc. by the plaintiff

1) On June 22, 2011, the Defendant’s application for designation of a rearrangement zone was rejected in excess of the planned floor area ratio (650%) as a result of the Seo-gu Incheon Metropolitan City Urban Planning Deliberation Committee. Accordingly, the Plaintiff, around that time, requested the Defendant to reduce the amount of the loan to KRW 2 million per month, and the Defendant’s officers affiliated with the Defendant jointly and severally guaranteed the loan obligations or to terminate the instant service contract, but the Defendant rejected the Plaintiff’s request.

2) The Plaintiff dispatched the Plaintiff’s staff to the Defendant to have the Defendant perform the pertinent business affairs, and had the employees dispatched to the Defendant after September 22, 2011.

3) On November 24, 2011, the Defendant decided to terminate the instant service contract on the ground that the Plaintiff failed to perform the obligation to pay the loan by holding a residents’ general meeting. On January 9, 2012, the Defendant notified the Plaintiff of the intent to terminate the contract.

4) On April 26, 2012, when the Plaintiff terminated the instant service contract against the Defendant on the grounds of business delay attributable to the Defendant, the Plaintiff filed a lawsuit claiming service charges, etc. (Seoulcheon District Court 2012Gahap7041, hereinafter “instant lawsuit”). However, the said court rendered a judgment dismissing the Plaintiff’s claim on the grounds that it is difficult to deem the instant service contract terminated on December 14, 2012, and the said judgment became final and conclusive around that time.

E. Notice of the termination of the instant service contract

1) On February 25, 2013, which was after the pronouncement of the instant lawsuit, the Defendant changed the term of “the instant service contract to the Plaintiff on February 25, 2013,” and changed the payment of loans and business support for the smooth progress of the instant project. As the Plaintiff’s request, monthly operating expenses will be reduced to KRW 2 million. At the present, the Defendant, with its own funds, requested that 72% of its members drafted written consent for the establishment of an association from 72% of its members, and requested that she be dispatched to her staff to hold a general meeting or inaugural general meeting by December 2, 2013, but the Plaintiff cannot accept the said demand on February 28, 2013.

2) On and after March 13, 2013, the Defendant re-requested the Plaintiff to lend operating expenses (2 million won a month) presented by the Plaintiff to the Plaintiff so that the instant business can be carried out several times, and to provide cooperation, such as the dispatch of employees, but the Plaintiff did not comply therewith.

3) On January 2015, the registration for the management business of rearrangement projects was revoked, and the Plaintiff did not take any measures despite the notification to the Defendant without delay pursuant to Article 73(3)1 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents.

4) On July 7, 2015, the Defendant became aware of the Plaintiff’s revocation of registration for the management business of rearrangement projects through the competent administrative agency, and notified the Plaintiff that the instant service contract was terminated, as the Plaintiff was unable to perform the instant business due to the said revocation of registration, and that this reached the Plaintiff around that time.

5) The Plaintiff, due to the Defendant’s delay in business, revoked the Plaintiff’s registration for the management business of the rearrangement project, on the ground that the Plaintiff’s delay in business without justifiable grounds falls under the case where the project is delayed or suspended and the project cannot be implemented normally, the Plaintiff expressed its intent to terminate the instant service contract through the delivery of a copy of the complaint in this case, which reaches the Defendant on April 29, 2016

F. Current progress of the instant project

The total floor area of the new building of the instant project is about 24,945, and the instant project has passed the safety inspection of the Defendant’s business plan.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1 and 2 (including branch numbers), the purport of the whole pleadings

2. Determination as to the cause of claim

A. Summary of the parties' arguments

1) Plaintiff

The Defendant failed to carry out the instant project without any justifiable reason for about two years and six months after the previous suit of this case, and the Plaintiff’s registration on the management business of the rearrangement project was revoked as the Plaintiff did not carry out its business related to the instant project because it was difficult to recover funds due to the delay in business operations. Therefore, since the instant service contract was terminated due to the delay in business operation due to the delay in the Defendant’s cause attributable to the delay in business operation, it was impossible to normally proceed with the project operation, the Defendant is obliged to pay the service cost and the loan that occurred

2) Defendant

A) The Defendant notified the Plaintiff of the validity of the instant service contract after the instant suit, and requested several times to conduct the instant service contract so that the instant project may be smoothly conducted, but the Plaintiff did not provide administrative or financial support on a single occasion. From that point of time, the Plaintiff was unable to perform its business related to the instant project as the Plaintiff’s registration on the rearrangement project management business was revoked, and the instant service contract was terminated due to the Plaintiff’s cause attributable to the Plaintiff. Accordingly, as long as the instant service contract was terminated due to the Plaintiff’s cause attributable, the Defendant did not have the obligation to pay the service cost to the Plaintiff.

B) Although the instant project passed the safety diagnosis, most of the tasks, such as authorization for the establishment of the association, are conducted by the Defendant itself, and there is no fact that the Plaintiff provided services in accordance with the instant service contract. Therefore, the Defendant is not obliged to pay the service cost to the Plaintiff.

C) The parties to the instant lawsuit are all the parties to the instant lawsuit, and the instant lawsuit also is identical to the subject matter of the instant lawsuit. Therefore, the instant lawsuit conflicts with the res judicata effect of the instant lawsuit that became final and conclusive as the Plaintiff’s loss.

D) On February 2, 2010, the Plaintiff prepared and delivered a written statement of performance that “if the instant service contract was terminated due to the occurrence of a cause for failing to continue to perform the instant business, the expenses incurred up to the time of renunciation will not be claimed in entirety.” As long as the instant service contract was terminated due to the Plaintiff’s cause attributable to the Plaintiff, the Plaintiff may be deemed to have renounced the service expenses pursuant to the cost waiver agreement, and thus, the Defendant may not claim the service expenses incurred.

E) According to the instant monetary loan loan agreement, the Plaintiff’s repayment period for the loan is within 20 days from the date of the selection of the contractor. The Plaintiff’s loan claim, such as the Plaintiff’s failure to select the contractor in connection with the instant business, was not yet due.

B. Determination as to the claim for service costs

1) Termination of the instant service contract

The instant service contract provides that, where the Plaintiff becomes unable to achieve the purpose of the contract due to the violation of the terms and conditions of the contract, the Defendant may terminate the contract; the Plaintiff’s registration for the rearrangement project management business was revoked; and the Plaintiff becomes unable to perform services for the instant project; and the Defendant notified the Plaintiff on July 7, 2015 that the instant service contract was terminated on the ground that the Plaintiff was unable to perform the instant project due to the cancellation of registration for the rearrangement project management business.

According to the above facts, although the plaintiff has a duty to provide the defendant with the service of this case until the completion of the business of this case, it is no longer possible to provide the defendant with the service of this case due to the cancellation of the registration of the management business specialized in the rearrangement project of this case, and thereby, the service contract of this case becomes no longer able to achieve its purpose. Thus, it is reasonable to deem that the service contract of this case was terminated due to the defendant's termination notification as of July 7, 2015 (other than the plaintiff's assertion, it is difficult to see that the service contract of this case was terminated according to the plaintiff's termination right based on the defendant

2) Occurrence of a duty to pay service costs

A) Where a service contract between a specialized management businessman of rearrangement projects and a truster terminates during the course of a service contract, in determining remuneration for the relevant affairs, a claim for agreed remuneration corresponding to the portion for which the period has arrived at the time when the service is actually performed, in cases where remuneration has been determined by the period under the proviso of Article 686(2) and Article 686(3) of the Civil Act, may be made, and even in cases where a contract was concluded for temporary payment of remuneration or determined the period remuneration, a claim for remuneration according to the ratio of the affairs already performed, only when the service contract ends without a cause attributable to the mandatary, with respect to the portion for which the period has not yet arrived (see Supreme Court Decision 200Da19342, Aug. 2

B) In light of the above legal principles, the service price in the instant service contract shall be calculated by multiplying the total floor area of new buildings (including value-added tax and value-added tax, 37,400 won per square year) determined at the time the designation of the rearrangement zone was publicly announced, by 34,00 won per square year (37,400 won if the service price is included in value-added tax and value-added tax), and the fact that the service price shall be paid in succession at 20% on the date of conclusion of the contract and 10% on the date of passing the safety inspection shall be deemed as above. Accordingly, as long as the service contract of this case was determined for the period of remuneration, the contract of this case shall be deemed as falling under the "when the remuneration is determined for the "period" as stipulated in the proviso of Article 686 (2) of the Civil Act,

Meanwhile, the fact that the instant project passed a safety inspection, the fact that the instant service contract provides that the payment shall be made within 20 days from the date of the selection of the contractor up to the fourth intermediate payment out of the service fees, the fact that the instant contract is terminated upon the termination of the instant contract for cash loan, the fact that the instant service contract was terminated due to the Defendant’s notice of termination on July 7, 2015 is as seen earlier, and the Defendant lost the benefit of the period of the service fees (the total service fees and the first intermediate payment) incurred due to the termination of the instant service contract due to the notice of termination on July 7, 2015. Accordingly, it is reasonable to view that the period during which the service fees occurred has arrived at the time of the Defendant’s termination notice on July 7, 2015.

Therefore, the Defendant is obligated to pay the Plaintiff the total service cost of KRW 279,882,90 [the total service cost of KRW 932,943,00 [the total service cost of KRW 932,943,00 [the total floor area of the new building x 37,400 per square x 37,40 per square x 30%)] and the delay damages therefrom, which amount to 30% of the total service cost that became due upon passing through

3) As to the defendant's argument

A) Although the defendant asserts that the service contract of this case is terminated due to the plaintiff's fault, the plaintiff cannot respond to the plaintiff's claim. However, since the service contract of this case is "when the period of remuneration is fixed", the plaintiff can claim against the defendant as to the service fee of which the period of time has already arrived at according to the service contract of this case, regardless of which the service contract has already become due, regardless of which the service contract has already become due, and the above argument of the defendant is without merit.

B) Although the Defendant asserts that the Plaintiff did not perform any business related to the instant service contract, it is reasonable to view that the Plaintiff provided the Defendant with a loan for the instant business promotion and dispatched its employees prior to the instant lawsuit, and that the Plaintiff passed the safety inspection as seen earlier. Accordingly, the evidence submitted by the Defendant alone is insufficient to recognize that the Plaintiff did not perform any business until the time when the instant business safety inspection passes. Accordingly, the Defendant’s assertion on this part is without merit.

C) Although the Defendant asserts to the effect that the lawsuit in this case, which became final and conclusive, is contrary to the res judicata effect of the previous suit in this case, the court or the party concerned cannot make a judgment or assertion contrary to the final and conclusive judgment. However, such final and conclusive judgment is effective on the basis of the time of closing argument at the trial court, which is the standard time, and thus, it does not affect the res judicata effect of the final and conclusive judgment in the previous suit even in the case where a new reason arises thereafter (see Supreme Court Decision 2000Da50909, May

The instant service contract was terminated due to a cause that occurred after the closing of argument in the instant previous suit, and the Plaintiff’s assertion of the grounds for termination of the contract that occurred after the closing of argument in the instant previous suit does not conflict with the res judicata effect of the instant previous suit. Therefore, the Defendant’s assertion on this part is without merit.

D) Meanwhile, the defendant asserts that the plaintiff's claim for service costs is unfair since the plaintiff submitted a letter of performance to waive all expenses when he gives up the contract of this case while the contract of this case was terminated by the defendant's notice of termination as of July 7, 2015. As such, the defendant's assertion that the contract of this case was terminated by the defendant's notice of termination as of July 7, 2015 is also without any further reason (the letter of performance submitted by the plaintiff to the defendant that submitted to the defendant is merely stating that "if he gives up all expenses when he gives up the contract due to the occurrence of a cause for failing to perform the project of this case, it shall not be deemed that the contract is terminated due to a cause attributable to the plaintiff which gives up all expenses according to the above letter of performance unlike the above wording).

C. Determination as to loan claims

The Plaintiff lent a total of KRW 85 million to the Defendant, and set the period of repayment within 20 days after the designation of the contractor, and the fact that the instant contract is terminated under the monetary loan contract of this case that the Defendant agreed to lose the benefit of time when the contract of this case is terminated, and the fact that the instant service contract was terminated due to the Defendant’s notice of termination on July 7, 2015 is as seen earlier.

According to the above facts, the defendant lost the interest of the time limit for the loan as alleged by the plaintiff due to the termination of the service contract of this case due to the notification of the termination of July 7, 2015. Thus, it is reasonable to view that the time limit for the loan of this case arrives at the time when the termination notification was made on July 7, 2015 (the defendant's assertion that the time limit for the loan of this case has yet to expire, unlike this, is without merit).

Therefore, the Defendant is obligated to pay the Plaintiff the total amount of KRW 85 million and delay damages for the loan.

D. Sub-committee

Ultimately, the Defendant is obligated to pay to the Plaintiff 364,882,900 won (=279,882,900 won +85,000 won +85,000 won) totaling of 279,882,900 won for the service charges incurred to the Plaintiff, and damages for delay calculated at the rate of 15% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from April 30, 2016 to the date of full payment, as sought by the Plaintiff from the day following the due date of repayment.

3. Conclusion

Then, the plaintiff's name shall be cited for the reasons, and it is so decided as per Disposition.

Judges Hong-chan

Judges Jeong-chul

Judges Park Jong-ro

(a) Act on the Maintenance and Improvement of Urban Areas

Article 73 (Revocation, etc. of Registration of Rearrangement Project Management Business)

(3) Where the specialized management businessmen of rearrangement projects have received registration revocation under paragraph (1), they shall notify the relevant details to the project implementer without delay.