(영문) 대전지방법원 2011.6.10.선고 2010가합11839 판결

1. The defendant shall pay to the plaintiff 41,122,40 won with 5% interest per annum from November 16, 201 to June 10, 201, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. 3/4 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The defendant shall pay to the plaintiff 195,00,000 won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

Reasons

1. Basic facts

A. B Co., Ltd. (hereinafter referred to as “B”) newly built D main complex (hereinafter referred to as “instant main complex building”) on the ground of Dong-gu Daejeon (hereinafter referred to as “instant land”) based on the building permit under the Building Act. The instant main complex building constitutes “cases where non-housing facilities and housing are constructed as the same building” under the proviso of Article 16(1) of the former Housing Act (amended by Act No. 8852, Feb. 29, 2008; hereinafter the same) and did not obtain approval for the project plan under the main sentence of Article 16(1) of the former Housing Act.

B. B applied for approval of the announcement of invitation on November 24, 2006, and approved on May 28, 2006, the Plaintiff purchased E-ho (E apartment) from B on May 7, 2007 to KRW 182,115,00, and paid KRW 18,212,000 on the date of the contract, and KRW 109,270,000 on May 15, 200, the Plaintiff agreed to pay KRW 54,635,00 on May 15, 200 on the date of designation of occupancy as stipulated in B (hereinafter “sale in this case”). Accordingly, the Plaintiff paid the contract deposit on the same day to B, and paid KRW 100,000,000 among the intermediate payment on May 15, 200.

C. On June 20, 2007, B filed an application for registration of the prohibited matters under the provisions of Article 40(3) of the former Housing Act while preserving ownership of E apartment units on June 20, 2007, the additional registration of registration of ownership preservation (hereinafter referred to as the "registration of prohibited matters of this case") was completed in the following purport: "No house shall be subject to the transfer of the relevant house, establishment of limited real right, or any act of restricting ownership such as seizure, provisional seizure, provisional disposition, etc. without the consent of the prospective occupants."

D. B borrowed KRW 700,00,000 from F on July 19, 2005 to raise funds for the new construction of the instant main complex building, and failed to repay KRW 220,00,000,00. The F applied for provisional seizure against B by making the loan claim as the preserved right under Daejeon District Court 2008Kahap746, and the above court decided provisional seizure on June 17, 2008, and completed the provisional seizure entry registration (hereinafter “the provisional seizure entry registration of this case”).

E. Meanwhile, on September 5, 2008, the registration officer belonging to the Daejeon District Court of Daejeon District, Daejeon District Court, entered the provisional attachment registration of this case not to register the provisional attachment registration of this case, and notified the Plaintiff of the cancellation around September 5, 2008 pursuant to Article 175 of the Registration of Real Estate Act. On September 17, 2008, the Plaintiff paid to B the remainder of the intermediate payment and the remainder of the intermediate payment and KRW 63,903,000 (hereinafter “the balance of this case, etc.”), and completed the registration of transfer of ownership due to the trade of this case as the receipt of No. 51326, Sept. 17, 2008 by the Daejeon District Court of Daejeon District, Daejeon District Court, the registration of the prohibited matters of this case was revoked on the same day.

F. The ex officio cancellation of the provisional attachment entry registration of this case is cancelled due to erroneous discovery on September 29, 2008, and the registration of ownership transfer was completed on February 16, 2010 by F, etc. based on the executory payment order for loans claim No. 2008 tea5163 against B, etc. which was commenced on January 9, 2009 (hereinafter referred to as the "auction procedure"), and E apartment was sold to H and the ownership transfer registration was completed on February 16, 2010.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 10, Eul evidence 2 (including branch numbers, if any), the fact inquiry result of this court's inquiry about Eul, the purport of the whole pleadings

2. Judgment on the parties' arguments

A. The plaintiff's assertion

The registration officer in charge of receipt of the application document for the registration of prohibited matters of this case falls under the proviso of Article 16 (1) of the former Housing Act, and thus, he was negligent in performing his duties by neglecting his duty of care on the ground that the case of Article 55 subparagraph 2 of the Registration of Real Estate Act is not to be registered, and thus, he has lost ownership of the apartment of this case. Thus, the defendant is liable to compensate for the damages incurred to the plaintiff due to the negligence of the registration officer in the auction procedure, which is the damage caused to the plaintiff, for the appraised value of the apartment of this case, KRW 195,00,000, the appraised value of the apartment of this case, and damages for delay.

However, even if the registration officer belonging to the defendant did not register the provisional attachment registration of this case to the plaintiff, and if the registration officer did not fall under the subject of ex officio cancellation, the plaintiff could have been able to cancel the sale and purchase of this case and refund the total price already paid from B. However, the defendant's registrar's mistake that caused damage to the amount equivalent to the purchase price of this case by paying the balance, etc. of this case without cancelling the sale of this case due to the plaintiff's mistake.

B. Establishment of liability for damages

Article 40 (1) of the former Housing Act provides that "a person who intends to implement a housing construction project (hereinafter referred to as a "project operator") shall not create a mortgage, etc. on the relevant housing and site without the consent of the prospective occupants during the period of 60 days from the date on which the prospective occupants can file an application for the registration of ownership transfer of the relevant housing and site after the date of application for the approval for the announcement of invitation of residents, and Article 40 (3) of the former Housing Act provides that "the project operator shall additionally register the ownership registration that the property shall not be subject to transfer by transfer, establishment of restricted real right, seizure, provisional seizure, provisional disposition, etc. without the consent of the prospective occupants, or that the ownership registration shall be additionally registered."

On the other hand, the proviso of Article 16 (1) of the former Housing Act provides that "cases prescribed by Presidential Decree such as where facilities other than housing and housing are constructed as the same building where the approval of a project plan is not required," and Article 15 (2) of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 21444, Apr. 21, 2009; hereinafter the same) provides that "where housing with less than 300 households and facilities other than housing are constructed as the same building within a commercial area (excluding distribution commercial areas) or a quasi-residential area among urban areas under the National Land Planning and Utilization Act, the scale of housing per household is less than 297 square meters and the total floor area of housing for the total floor area of the building is less than 90 percent."

In addition, in order to apply for the additional registration of prohibited matters under Article 40 (3) of the Housing Act, which is the registered rules (No. 1195), the "business guidelines for the additional registration of prohibited matters" is stipulated as follows: in order to apply for the additional registration of prohibited matters, the written approval for the housing construction plan shall be attached to the application in case of the housing construction site; in case of the housing construction site, in case of the recruitment of occupants prior to the completion of the building, the project operator under the Housing Act applies for the registration of preservation of ownership of the housing constructed by the prospective occupants under the Housing Act, to apply for the registration of non-prohibited matters under Article 40 (3) of the Housing Act.

In full view of the purport of Gap evidence No. 1, Gap evidence No. 2-1, Eul evidence No. 5, Eul evidence No. 2-1, No. 2-8, Eul evidence No. 3-1, and Eul evidence No. 3-8, the whole purport of each entry and pleadings as follows: ① The land of this case is located in a general commercial area; the total floor area of the building of this case is 12,112.35 meters; the five to fifteen stories of multi-family housing is 6,851.8m in total; ② The area of one household of multi-family housing is much less than 297mm2; ② after applying for additional registration of prohibited items on the land of this case on May 23, 207, the agency in charge of provisional registration No. 2007, which stated that the land of this case will not be registered under the Building Act; ③ the land of this case was not registered under the title of this case on the ground that the land of this case and the title register No. 2, etc.

In light of the following circumstances revealed by the facts as seen earlier, i.e., (i) the additional registration of the instant land under the Building Act, which was attached to the application for the additional registration of prohibited matters concerning the land, rather than the written approval for the housing construction project plan, and (ii) the data attached to the application for the additional registration of prohibited matters concerning the instant residential complex including the apartment complex, even if the instant residential complex building meets the requirements under Article 15(2) of the former Enforcement Decree of the Housing Act and could have been easily known that it is not subject to the additional registration of prohibited matters under the proviso of Article 16(1) of the former Housing Act, it is reasonable to deem that the registration officer breached his duty of care in exercising its formal authority, even though it could have known that the additional registration of the building register, etc. submitted was not subject to the registration.

Therefore, pursuant to Article 2 (1) of the State Compensation Act, the defendant is obligated to compensate for the damages suffered by the plaintiff due to negligence of the registrar who is a public official.

C. Scope of liability for damages

Furthermore, the scope of damages is examined.

As seen earlier in the basic facts, even if the prohibition of this case was not registered, the F, a creditor of B, was unable to prevent the progress of the compulsory auction procedure based on the name of debt against B after completing the registration of entry into the provisional seizure period of this case on the apartment apartment of this case. Thus, there is no causation between the negligence of the registrar and the Plaintiff’s loss of ownership on the apartment of this case.

In addition, if a registrar did not ex officio cancel the provisional attachment registration of this case, the circumstance that the registration officer cancelled the sales contract of this case without paying any balance and received full refund of the down payment and intermediate payment already paid from B constitutes an unexpected special damage that the defendant could have anticipated.

Therefore, the Plaintiff’s damages are KRW 63,900,00, such as the Plaintiff’s notice after the registration of the instant prohibited matters and the balance paid to B after reliance on the registration officer’s ex officio cancellation.

D. Limitation on liability

1) Fruits offsetting

Even if the defendant is recognized as liability for damages, although the plaintiff delays the payment of the balance for a long time and the invalidity of the registration of provisional seizure of this case is disputed, it is difficult to view that the plaintiff has a duty of care as alleged by the defendant.

However, in light of the fact that 63,903,00 won, including the balance paid by the Plaintiff, as seen in the basic facts, is the Plaintiff’s duty to sell the instant transaction, it is reasonable to limit the Defendant’s liability to 80% of the amount of damages corresponding to comparative negligence under the principle of equity in calculating the amount of damages against the Plaintiff.

2) Loss offsetting

The defendant asserts that the amount should be deducted from the amount of damages because the plaintiff gains a total of 30,486,895 won from the compulsory auction procedure for apartment apartment units E.

According to the statement in Eul evidence Nos. 1, 30,245,313 among the amount to be distributed to the plaintiff, among the proceeds from compulsory auction for apartment units E, 290,725,000 won in the compulsory auction for apartment units E, it may be acknowledged that 30,245,313 won has been distributed to the plaintiff, and 241,580 won has been distributed to the Dong-gu, Daejeon, which is the holder of the right to deliver to the plaintiff. However, in full view of all the circumstances, such as the degree of the amount the plaintiff was paid due to the negligence of the institution affiliated with the defendant, etc., and the appraised value at the time of the auction for apartment units E, it is reasonable to deduct 10,000,000 won from the amount of damages

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 41,122,400 won (=63,903,000 won x 80% - 10,000 won - 10,000 won) and to pay damages for delay at the rate of 20% per annum under the Civil Act from November 16, 201, which is the date the decision of this case was rendered until June 10, 201, where it is deemed reasonable for the defendant to dispute about the existence and scope of the obligation to pay, as requested by the plaintiff, from November 16, 2010, the day following the delivery of a copy of the complaint of this case to June 10, 201, and from the next day to the day of complete payment. Thus, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remainder of the claim is dismissed as it is without merit. It