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(영문) 서울중앙지방법원 2017.08.18 2016가합558102
부당이득금
Text

All of the plaintiffs' claims are dismissed.

The costs of lawsuit shall be borne by the plaintiffs.

Reasons

Basic Facts

A. On June 24, 2005, U.S. Universal Holdings Co., Ltd. entered into a management-type trust agreement with the Defendant on the business of newly building and selling Ireland Lando Recreation Co., Ltd. (hereinafter “instant containers”), and entrusted the Defendant with the execution of the said project.

B. On January 9, 2008, the Plaintiffs concluded a membership agreement with the Defendant on each of the instant containers with respect to KRW 1/2 of the 66.90 square meters for each of the 66.90 square meters for each of the instant containers, and the expected date of use as of June 2009 for each of the 140,649,000 won for each of the instant containers (hereinafter “instant membership agreement”).

C. The main contents of the instant membership agreement are as follows.

Article 3 (Arrears and Delay Compensation) If the defendant delays the use of a container by the scheduled date of use, etc., he/she shall pay a delay compensation to the plaintiffs or deduct it from the remaining amount of the payment in accordance with the overdue charge rate (16%) under paragraph (1) from the amount already paid from the scheduled date of use to the date actually available.

Article 9 (Cancellation of Contract) (3) Where it becomes impossible to use a container for more than three months from the scheduled date of use of the container due to the reasons such as the Defendant’s completion delay, etc., or where it becomes impossible to perform the contract of “B”, the Plaintiffs may rescind this contract.

However, this does not apply to the case where the above completed site is inevitable and the defendant can use other containers than this container.

From January 9, 2008 to September 10, 2008, the Plaintiffs paid KRW 126,580,000, respectively, to the Defendant as part of the amount stipulated in the instant membership agreement.

E. On November 17, 2014, the Netre Construction Co., Ltd. applied for a compulsory auction on the site and various facilities of the instant containers with the claim for construction price to the Government District Court as the claim for construction price, and rendered a ruling of commencement of compulsory auction on December 1, 2014 (U.S. District Court C).

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