Plaintiff (Law Firm Gwangju, Attorneys Kim Tae-ho et al., Counsel for the plaintiff-appellant)

Hanjin Industries (Attorneys Kim Jin-hun et al., Counsel for the plaintiff-appellant)

April 6, 2004

Seoul District Court Decision 2002Gahap39178 Delivered on April 17, 2003

1. The part against the defendant in the judgment of the court of first instance shall be revoked, and all claims against the defendant by the plaintiff (appointed party) corresponding to the revoked part shall be dismissed;

2. The total cost of the lawsuit shall be borne by the plaintiff (appointed party) and the designated parties listed in the separate sheet.

The defendant jointly and severally with the plaintiff (appointed party), 17,60,000 won for each of the above amounts of 17,60,000 won for the co-defendants of the first instance trial, Nonparty 3, 4, and 5 respectively, and 20,866,67 won for the designated parties, Nonparty 6, Nonparty 7, Nonparty 8, and Nonparty 9 respectively, and 10,000 won for each of the above amounts of 10,00,000 won for the designated parties, and 12 to Nonparty 12 for each of the above amounts of 22,40,000,000 won for the designated parties and 20% for each of the above amounts from the day following the delivery of a copy of the complaint of this case to May 31, 2003 to the day on which the copy of the complaint of this case was served (the damages for delay by the plaintiff)

The same shall apply to the order.

1. Basic facts

The following facts do not conflict between the parties, or comprehensively taking account of Gap evidence 1 through 26 (including paper numbers), Eul evidence 44 through 53 (including paper numbers), Eul evidence 56-1 through 10, Eul evidence 64-1 through 15, Eul evidence 3-1 through 15, Eul evidence 4-1 through 4-5, Eul evidence 5 through 7, Eul evidence 5-1 through 5-3, Eul evidence 6-1 through 6-3, Eul evidence 7-1 through 7-3, Eul evidence 8-3, Eul evidence 12-1, 5 through 15, Eul evidence 4, Eul evidence 17, Eul evidence 18, Eul evidence 18-1 through 51, Eul evidence 30-1, Eul evidence 51 through 58 (including the testimony number 60-1, Eul evidence 60-1, Eul evidence 51 through 58).

A. The relationship between the parties

(1) The Joint Defendant of the first instance trial co-defendants of the Dongdaemun-dong District, Housing Improvement Redevelopment Partnership (hereinafter “Redevelopment Partnership”) is an association established to implement the Housing Redevelopment Project (hereinafter “Redevelopment Project”) and the Housing Redevelopment Project (hereinafter “Redevelopment Project”) in which the apartment housing (hereinafter “the apartment of this case”) complex and commercial building are constructed on October 2, 1986 with the authorization of the Housing Redevelopment Project under the former Urban Redevelopment Act (amended by Act No. 4175, Dec. 30, 1989).

(2) Hanil Development Co., Ltd. (which was changed to Hanjin Construction Co., Ltd. on Mar. 14, 1994, merged with the defendant Co., Ltd. on Aug. 1, 1999) and Han New Co., Ltd. Co., Ltd. in the first instance trial (which was ordered to commence company reorganization procedures as of Dec. 16, 1997 by Seoul District Court on Dec. 16, 1997, and was decided to approve company reorganization plans as of Jun. 30, 1998, and the company reorganization procedure was completed on Nov. 21, 2002; hereinafter the same shall apply) is a company that was in charge of executing the redevelopment project in the capacity of participating members of the redevelopment association as a member of the redevelopment association (hereinafter the defendant Co., Ltd. combined with the defendant Co., Ltd.).

(3) The plaintiffs (designated parties) and the designated parties indicated in the separate sheet (hereinafter collectively referred to as the plaintiffs) are tenants living in the redevelopment project area of this case, who are participating members of the redevelopment association. The plaintiffs (designated parties), the designated parties, the non-party 1, the non-party 2, the non-party 3, the non-party 4, and the non-party 5, respectively, purchased 44-type apartment buildings (However, the non-party 3, the non-party 4, and the non-party 5 shared 1 bonds as the same share), the designated parties, the non-party 6, the non-party 7, the non-party 8, the non-party 9, the non-party 10, the non-party 11 shared 10-type apartment buildings with the same share of the non-party 1, the non-party 12, the non-party 2, the non-party 4 and the non-party 16-party 2, the non-party 192, the non-party 16.

(b) Contracts for participation in housing redevelopment projects;

On May 2, 198, the redevelopment association selected the construction works including the defendant as the partner and the contractor of the redevelopment project of this case. The redevelopment association leased the necessary expenses such as the purchase expenses of the state and public land, the relocation expenses of the association members, the operation expenses of the association, etc. to the redevelopment association. The construction period is 30 months from the completion date of the removal of obstacles within the project area, and the construction period is 50.55% of the building site area (5,614 square meters) provided by the redevelopment association, which is 90.55% of the building site area (5,614 square meters) provided by the redevelopment association. The 31 apartment units and their ancillary facilities, welfare facilities, and commercial buildings within the development project area are constructed under the condition that the sale amount of the remaining building except the shares of the association members at 50,358 square meters shall be appropriated to the construction cost of the redevelopment project. The construction project is supervised by the redevelopment association, and all of the construction works are actively co-operateed with the redevelopment project operator (see the above paragraph 2).

(c) Sales contract;

(1) From December 192, 1992, the redevelopment cooperative concluded a sales contract (hereinafter “sale contract in this case”) with its partners including the Plaintiffs with the construction contractor and the sales agent of the construction contractor. The main contents are as follows.

Article 2 (Payment of Liquidation Money, etc.) Members shall pay the settlement money to the account designated by the redevelopment cooperative, and the redevelopment cooperative and the contractor shall not be liable for the sales amount not deposited to the account. If the redevelopment cooperative and the contractor enter into a contract after the date designated by the redevelopment cooperative and the contractor or delay the amount to be paid by the number of vehicles, they shall pay the sales amount by adding the interest rate of 17% per annum.

Article 4 (Cancellation of Contracts) The redevelopment association and the construction company may cancel the contract when a partner fails to pay the balance within three months from the expiration date of the designation period of occupancy or performs an act in violation of the Rules on Housing Supply.

Where a member fails to pay the liquidation money from the expiration date of the designation period of occupancy to the expiration date of three months, the construction works may take legal measures to secure bonds for apartments sold by the member.

Article 7 (Occupancy Procedures) Members paid in full the settlement money within the fixed period and submit all the documents requested by the redevelopment association, and then are issued a certificate of occupancy under the joint names of the redevelopment association and the city construction company with the date of occupancy specified.

Article 9 (Transfer of Ownership) A redevelopment partnership shall complete the preservation registration at the earliest possible date after completion of the apartment of this case. Where the procedures for the registration of ownership transfer are delayed due to unavoidable reasons not attributable to the redevelopment partnership, the members may not raise an objection thereto.

㉳ 제10조(연체료 및 지체상금) 재개발조합의 귀책사유로 공급공고시에 정한 입주예정일에 입주하지 못하는 경우 조합원은 재개발조합에 대하여 지체상금을 청구할 수 없고, 또한 천재지변 또는 재개발조합과 시공사들의 귀책사유와 관계없는 행정명령, 민원발생 등의 어쩔 수 없는 사유로 인하여 입주일이 지연될 경우 조합원은 재개발조합과 시공사들에게 지체상금을 청구할 수 없다.

㉴ 제16조(권한의 위임) 본 계약에 의한 분양업무를 재개발조합이 특별히 유보한 경우를 제외하고는 시공사들이 대행하며 시공사들의 대행 업무 행위는 조합원에 대하여 재개발조합이 행한 것과 동일한 효력을 갖는다.

(2) However, upon the conclusion of the above sales contract, members are only paying the remaining amount by the date of the occupancy, and the date of the occupancy does not specify it.

(3) On December 24, 1992, the redevelopment cooperative promoted the development project with the approval of the management and disposal plan from the head of Seongbuk-gu Office.

(d) Amendment to the participation agreement;

(1) From the beginning of the 1990s, the construction company has demanded the redevelopment association to report losses due to increase in the construction cost and prepare measures to compensate for them. On July 7, 1990, the construction company and the redevelopment association concluded a letter of agreement with partial revision of the participation agreement of this case to compensate for losses of the construction company, and the redevelopment association and the redevelopment association made efforts to obtain ratification on several occasions by asserting that the procedural defects of the conclusion of the agreement were at issue with some members, but eventually, the redevelopment association and the redevelopment association have lost its validity by the resolution of the general meeting on August 31, 1993, and as a result, the construction company suspended the construction on October 4, 1993.

(2) On December 7, 1993, the redevelopment association and the contractor agreed to partly revise or supplement the contents of the participation contract of this case concerning construction costs and loans, project costs and appropriation of funds, sale payments or settlement payments, occupancy time, etc. from the 830 general meeting of all members, with the consent of 646 members from the 14th general meeting of cooperative members of the redevelopment association. The revised agreement of December 8, 1993 (a evidence No. 8-2 of this case; hereinafter referred to as the "revision agreement of this case") concerning construction costs shall be the area of the building site of the redevelopment association (5,614 square meters) provided by the redevelopment association, and the remaining amount of the land in reservation shall be the share of the redevelopment association at the time of sale, and the amount of the land in reservation shall be appropriated from the 9th time of sale to the 9th time of sale installation to the extent that all members of the redevelopment association make up for the amount of the construction expenses to be appropriated within the 190th time of sale and 195th time of sale.

(e) Delay of registration;

(1) Since June 24, 1995, the Si Construction Project implemented the instant construction and allowed several buyers, including the plaintiffs, to move into the instant apartment complex from June 24, 1995, but due to the delay in approval for use and completion inspection of the apartment building, the registration of preservation of ownership was made in the name of the members from July 22, 1999. As to the portion of the apartment site, the completion of the land construction project has not been completed, so far, the ownership registration has not been made.

(2) On June 24, 1995, the construction company applied for temporary use approval to the head of Seongbuk-gu, the competent authority of the instant redevelopment project while moving into an apartment. However, unlike the design originally approved, the loss of stairs and floor finishing materials of at least three floors of the apartment complex of this case and emergency stairs in front of each of the elevator of this case was built with lusulous lusul and steel, which is not a lusty stone and lusty lease, and did not undergo a traffic impact assessment following the change of road width, and some of the apartment buildings of this case were not approved without permission. Furthermore, the redevelopment association and the construction company failed to obtain approval for use on the ground that there were various defects such as extension without permission, and it was also accused from the head of Seongbuk-gu Office of Building Act on the ground that they moved into a commercial building without obtaining approval for use.

On the other hand, upon the discovery of the above defects, there were defects such as rupture and rupture in the 102 retaining wall in the case of the collapse of 209 retaining wall and the death of 1st and 4th injury from among the apartment of this case from around May 1997, the conflict surrounding the issue of payment of damages for delay on the sale price between the association members and the construction company has been surfaceed, and the repair and additional construction had been faced with the accident. The above facts were reported to the press. Ultimately, the inspection certificate of use was issued from the head of Seongbuk-gu Office around July 1, 1998 after the completion of construction work on June 26, 1999 and the completion of the repair and reinforcement work on July 26, 199 after the completion of construction work on July 26, 199. The plaintiffs and the plaintiffs' ownership registration began from around July 27, 199.

(3) However, with respect to the site of the apartment of this case, the redevelopment association and the Si company failed to comply with the order of the head of Seongbuk-gu Office, such as the revision of the redevelopment project implementation plan and the revision of the redevelopment project implementation plan and the additional construction for the area incorporated into the redevelopment project in 194, and the delay in the survey and registration of the part of the site was caused by the additional construction for the area incorporated into the redevelopment project of this case. In addition, in addition, the construction project was unable to comply with the order of the head of Seongbuk-gu Office to restore the site to the original state, failing to implement the order of the removal of the building site, failing to comply with the order of the sports center to separate the boundaries of the access road of the sports center, failing to perform the order of the repair project site, failing to solve the compensation problem of the third-party middle school site

2. Determination as to the plaintiffs' claims

A. Summary of the plaintiffs' assertion

(1) From June 24, 1995, the plaintiffs, including the defendant, received the sale price from the plaintiffs, and allowed the plaintiffs to move into the apartment of this case. However, the construction works delayed construction by changing the design drawing originally authorized to execute the apartment of this case without permission, or making defective construction. Accordingly, the construction of the apartment of this case has been completed for more than four years from the date of occupancy, and the registration of preservation of ownership has been completed for the apartment of this case, and the registration of ownership has not been completed until now since the completion of the construction on the land has not been completed. The plaintiffs suffered property damage or mental suffering, such as a decline in the market price of the apartment of this case due to the delay of registration, etc., or a fear about the acquisition of ownership.

(2) The construction companies including the Defendant directly carry out all procedures including all authorization and permissions from the pre-project preparation phase, and directly receive and manage the proceeds for the redevelopment project while entering into the redevelopment project on behalf of the redevelopment association, and have the right to cancel the contract corresponding to the contracting parties or to take legal measures to secure the sale price claim, and have the status as a party to the redevelopment project in fact, and have the status as corresponding to the seller. In addition, according to the contents of the revised agreement of this case, the employees in charge of the Defendant were in the position to share economic benefits from the redevelopment project of this case in a similar form to the shares system after acquiring the shares of the apartment, reserved land, and commercial building, which were originally owned by the redevelopment association or the interests of the redevelopment association in accordance with the contents of the revised agreement of this case. In addition, they agreed that the employees in charge of the company present at the general meeting of its members so that they can move into the redevelopment project of

(3) Therefore, the defendant can be seen as not only the developer of the redevelopment project of this case but also the joint developer of the redevelopment project. Thus, jointly and severally with the redevelopment association that is the party to the sales contract, the plaintiffs are obligated to compensate the plaintiffs for the above damages due to tort liability as to the plaintiffs' property damages or mental damages, and as the contractor is not the party to the sales contract, the plaintiffs are not directly liable to the plaintiffs because the contractor is not the party to the sales contract, the plaintiffs claim compensation for the above damages against the defendant, who is the party to the redevelopment association by subrogation on the basis of the

B. Determination of whether a co-implementer is a co-implementer

(1) As acknowledged above, the fact that the completion inspection on the apartment house and site of this case is delayed due to the combination of the reasons for the redevelopment association's responsibility and the reasons for the non-project, including the defendant, such as the alteration of the project execution plan following the addition of the site for the redevelopment project, and the addition of the redevelopment project, etc., and the fact that the registration of ownership preservation has not been made up until now, is recognized. However, the defendant entered into the participation contract of this case with the developer of the redevelopment project of this case or the independent partner of the redevelopment project of this case and entered into the redevelopment project of this case by proxy as the redevelopment project developer of this case. Thus, the defendant is merely the developer who is not the developer of the redevelopment project of this case or the sales agent of this case as the developer of the redevelopment project of this case, and there is no obligation under the contract of this case in relation to the redevelopment association under the direct contract of this case, apart from the burden of the obligation under the participation contract of this case.

(2) Furthermore, as alleged by the plaintiffs, as to whether the defendant is liable for the unit sale contract as the joint developer, the defendant et al. shall prepare the documents related to Gap evidence 27-1 through 7, Gap evidence 30, Gap evidence 33-41, Eul evidence 48, Eul evidence 8-4 through 27, Eul evidence 9-1 through 10-16, Eul evidence 14-1 through 51, as to whether the defendant's joint developer is liable for the unit sale contract, after considering the whole purport of the arguments, the defendant et al. shall prepare the articles of association of the redevelopment association on behalf of the redevelopment association, the application for approval of the plan, the housing supply contract, etc., and establish the unit sale contract with the members of the redevelopment association on behalf of the members of the redevelopment association on behalf of the redevelopment association on behalf of the members of the redevelopment association on behalf of the redevelopment association on behalf of the members of the redevelopment association on behalf of the members of the redevelopment association, and have the right to purchase the unit sale price and its key payment.

(3) However, an urban redevelopment project is a project that improves the residential environment and urban landscape by newly improving infrastructure, such as roads and water supply and drainage systems, in an area where the residential environment is underdeveloped, and is so long as the nature of the public project becomes so as to be controlled by the administrative agency during the implementation process of the project, and at the same time, a separate legal entity is recognized by the law against the redevelopment cooperative, and an executive officer or employee of the partnership is recognized as equivalent to the public official under the Criminal Act, and an administrative appeal is made against the developer’s selling-out disposition. Meanwhile, according to the former Urban Redevelopment Act (amended by Act No. 4175 of Dec. 30, 1989), which is the basis law at the time of the implementation of the redevelopment project in this case, the redevelopment project is limited to the land owner, a cooperative established by the said owners, a local government, and a third-party developer meeting the requirements under the Presidential Decree (amended by Act No. 5116 of Dec. 29, 195).

(4) As acknowledged earlier, it was true that construction projects including the Defendant have led redevelopment projects by proxy from the pre-execution stage of the redevelopment project in this case to the pre-execution stage of the redevelopment project. However, this is due to the lack of expertise and financial capacity of the redevelopment project by the redevelopment project association composed of its members (such as excessive competition between construction enterprises and lack of expertise of the association, etc.). Since the Urban Redevelopment Act was enacted after the abolition of the Urban Redevelopment Act, vicarious execution of affairs concerning the consent to the establishment of the association and the rearrangement project in the Urban Areas and Dwelling Conditions Act, vicarious execution of affairs concerning the request for authorization of the establishment of the association, vicarious execution of affairs concerning the establishment of the plan for project, vicarious execution of affairs concerning the establishment of the plan for authorization of the project, review of the design plan and changes in construction cost, and joint redevelopment projects that meet the requirements of the existing redevelopment project association's request from the developer of the redevelopment project, and joint redevelopment project is not recognized by the parties to the redevelopment project and the parties to the redevelopment project, even if the project is not approved by the parties to the agreement and the redevelopment project.

(5) Therefore, the plaintiffs' claims based on the premise that the defendant is joint project undertakers of the redevelopment project of this case are without merit.

C. Determination as to the establishment of liability for nonperformance under the agreement

(1) The plaintiffs also asserted that the defendant's employee-in-charge was liable for damages due to delay of registration in accordance with the above agreement, since the defendant's employee-in-charge agreed to allow its members to attend the general meeting of its members and move to the general meeting of its members until June 24,

(2) In full view of each of the statements in Gap evidence Nos. 8-2 and Eul evidence No. 8-2 and No. 4 as mentioned above, it is difficult to view that the above statement constitutes a legal commitment as a representative of the city construction project because it is merely an exceptional expression without legal binding force in the sense of inducing members to move into the new agreement, and even if the above statement constitutes the legal binding force of the above agreement, it cannot be deemed that the defendant's new obligation to move into the redevelopment association or the new obligation to move into the redevelopment association, including the plaintiffs' new obligation to move into the redevelopment association, upon approval by the general meeting, at the 14th special meeting of the members of the redevelopment association, which discussed approval of the amendment agreement of this case between the redevelopment association and the Si construction project at the time of December 7, 1993.

D. Determination as to the validity of a claim based on subrogation right of a creditor

(1) The Plaintiffs asserted that the Defendant of the redevelopment association exercise the right under Article 10 of the instant amendment agreement in order to preserve the right to claim compensation for damages arising from delay of registration against the redevelopment association.

(2) Therefore, with respect to the existence of the right of subrogation in this case, the Plaintiffs asserted that the redevelopment association has a right to claim based on the agreement against the Defendant, on the condition that the redevelopment association, including the Defendant, vests in the reserved land, etc. to be held by the redevelopment association to cope with contingent obligations under Article 10 of the revised agreement of this case, on the condition that the reserved land, etc. to be owned by the redevelopment association, such as the damages in this case, should be attributed to the contractor, and thus, the redevelopment association shall be held responsible without limitation. (The Plaintiffs express this as

According to Gap evidence No. 8-2, the revised agreement of this case provides that "(Article 10.55%) shares of the redevelopment association (Article 10.5%) in the redevelopment association's redevelopment association's redevelopment project expenses shall be appropriated for repayment of debts to the redevelopment association's contractor and for the association's project expenses, and the excess or balance shall be attributed to the contractor." However, there is no evidence suggesting that the above agreement was an agreement between the contractor and the redevelopment association's liability for contingent debts such as the amount of the damages in this case under the condition that the reserved land belongs to itself, etc., and the whole argument of the pleading No. 24 and No. 8-4 was made. Rather, Article 10 of the revised agreement of this case holds reserved land as a result of considering the partnership's project expenses borrowed from the redevelopment association until now and project expenses borrowed from the redevelopment association's future, and it cannot be seen that the redevelopment association's right to claim reimbursement of the borrowed project expenses should not be acknowledged as being included in the revised agreement of the general meeting of this case.

E. Determination as to whether a claim for damages arising from a tort is appropriate

(1) The plaintiffs asserted that since the registration light fee for the apartment and its site was delayed due to the defendant's defective construction, illegal structure and design modification, the construction contractor including the defendant, etc. has a liability for damages against the plaintiffs for tort liability.

(2) As seen earlier, the obligation to complete a completion inspection on an apartment or its site for its members, including the plaintiffs, is borne by the redevelopment cooperative, which is the project implementer. If the defendant completed the construction before June 24, 1995 as agreed with the redevelopment cooperative and let its members move into the apartment of this case, even if the redevelopment cooperative failed to undergo a completion inspection on part of its construction due to a mistake in construction, there is no room for recognizing the redevelopment cooperative as responsible for default or incomplete performance according to the participation agreement or amendment agreement in this case. However, there is no reason to believe that the defendant violated the rights of its members, or there is no other evidence to acknowledge it.

3. Conclusion

Therefore, the claim of this case against the defendant by the plaintiff (appointed party) is dismissed as it is without merit. Since the judgment of the court of first instance which partially different conclusions are unfair, the part against the defendant in the judgment of the court of first instance shall be revoked, and all the claims of the plaintiff (Appointed party) corresponding to the revoked part shall be dismissed. It is so decided as per Disposition.

[Attachment List of Appointed]

Judges Lee Sang-hoon (Presiding Judge)