Plaintiff 1 and 6 others (Law Firm Chungcheong, Attorneys Choi Woo-young et al., Counsel for the plaintiff-appellant)

Liice Spanish Co., Ltd. and one other (Law Firm, Kim & Lee LLC, Attorneys Im-eng et al., Counsel for the defendant-appellant)

May 9, 2013

Seoul Central District Court Decision 2010Gahap124552 Decided September 7, 2011

1. The part concerning the plaintiffs in the judgment of the first instance, including the plaintiffs' claims extended and added in the trial, shall be modified as follows.

A. All of the plaintiffs' primary claims are dismissed.

B. Upon the first preliminary claim of the Plaintiffs, the Plaintiffs:

1) Defendant Liice Spanish Co., Ltd. shall pay 6% of the annual amount from each day to the day of full payment indicated in the “The sale price” Schedule of Attached Table 1 and the “final payment date” of the same Table with respect to each of the money indicated above, to the day of full payment; and

2) At the same time, the registration procedure for cancellation of ownership transfer registration is implemented in the same table of the registration of transfer of each ownership as in the attached Table 2 “registration statement” from the plaintiffs with respect to each of the real estate stated in the “registration status table” in the attached Table 2 “Real Estate Trust Co., Ltd.”, and at the same time, the amount is paid at the rate of 6% per annum from December 3, 2010 to the date of full payment, among the money described in the attached Table 1 in the attached Table 1 “Spans and each of the above 1) within the scope of trust property.

C. All of the plaintiffs' remaining conjunctive claims are dismissed.

2. The total costs of the lawsuit are borne by the Defendants.

3. Paragraph 1-b. above may be provisionally executed.

1. Purport of claim

The Defendants jointly and severally paid to the Plaintiffs 6% of the amount indicated in the “sale Price Schedule” in the attached Table 1 to the delivery date of a copy of the complaint of this case from each of the dates indicated in the “Final Payment Date” to the date of the delivery of a copy of the complaint of this case, and 20% of the annual amount from each of the following day to the date of the full payment (the Plaintiffs were entitled to restitution due to the original cancellation of the sales contract, and restitution of unjust enrichment due to the cancellation of the conjunctive sales contract, and the claim for restitution of unjust enrichment due to the cancellation of the conjunctive sales contract, were subsequently added to the second preliminary claim, which was finally caused by the tort of fraud, and subsequently expanded the purport of the claim as above. However, the Plaintiffs’ primary and the first preliminary claim of the Plaintiffs are compatible with their nature, and this is allowed as the so-called in the preliminary preliminary petition seeking a priority order of the trial

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiffs is revoked. The defendants shall jointly and severally pay to the plaintiffs 31 million won and 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of full payment.

1. Basic facts

A. Defendant Doice Spain Co., Ltd. (hereinafter “Defendant Doice Spain”) is an executor who constructed and sold ○○○○○○○○○○○○○○ Center (hereinafter “instant commercial building”) located in the Suwon-si flood area (hereinafter “instant commercial building”), and Defendant Domin Real Estate Trust Co., Ltd. (hereinafter “Defendant Doc Real Estate Trust”) is a trustee who was entrusted from Defendant Dolus in a trust of parking lot 5,582.10 square meters (hereinafter “instant commercial site”) located in the area of the instant commercial building, which is the site of the instant commercial building.

B. On December 17, 2008, on the instant commercial building site, Defendant ice Spanish and Defendant KB trust concluded an agency contract and sales management trust agreement with each of the following contents. The main contents are as follows.

【Agency Business Contract】

Article 3 (Service and Business Affairs)

(1) Defendant ice as the executor of this project shall perform the following duties:

6. To delegate the receipt, management, and execution of business funds and sales proceeds to the defendant rink trust, and to support the affairs related thereto;

8. Obligations to sell, manage and trust the entire project site to Defendant KB Trust;

9. The duty to sell, manage and trust to the defendant rink trust after registration of preservation of ownership at the time of completion of the building;

11.Notification to Defendant KF Trust of all contracts to be entered into in connection with the Project;

16. Submission of daily data on the current status of sales contract to Defendant K non-trust;

18. Registration affairs concerning the preservation of ownership after completion of construction and the registration of transfer of a person to be sold in lots to Defendant KB Trust, and submission of all relevant registration documents;

20. The submission of all data requested by Defendant KF Trust;

21. Obligations to transfer all sales price claims related to the project to Defendant KB Trust;

3. Defendant KF Trust shall carry out the following duties as a trust of an agent upon delegation by the parties to this Agreement:

1. Conclusion of a contract for sale, management and trust for the entire project site;

2. Entrustment of a sale management trust for a building preserved and registered after the new construction of the building;

3. Opening an account for managing proceeds from sale according to the duty of care and the receipt and management of proceeds from sale;

4. Management and execution of business funds, such as loans and sales revenue, related to the main business according to the duty of care and good faith;

5. Payment from the fund management account for all the expenses, including the construction cost, arising from the construction process;

6. Computer management of the current status of storage and sale of contracts for sale in lots concluded by Defendant ice for the sale in lots;

Article 4 (Effect of Contract and Individual Contract Conclusion)

1. This contract shall be mutually complementary to the sale management trust agreement concluded between the defendant ice Spanish and the defendant ice trust, and shall not be in violation of the relevant Acts and subordinate statutes, such as the "Act on Sale of Buildings", the Enforcement Decree of the same Act, and the Enforcement Rule of the same Act and subordinate statutes.

[Trust Management Trust Contract]

Article 1 (Trust Purpose)

The purpose of this trust agreement is to protect the buyer by preserving and managing the ownership of the trust property (including the case where the completed building is added to the trust property) in the business where the defendant ice Spain newly constructs or expands and sells a building on the trust property in accordance with the "Act on the Sale of Building Units", and to liquidate and dispose of the trust property in case of default on the obligation to pay by the defendant ice Spain.

Article 2 (Adjustment of Terms)

(4) The buyer: A person who has concluded a contract for sale in lots with the defendant Doice Spanish for buildings constructed on a trust real estate.

(5) Trust property: Proceeds from trust, bonds of sale price and proceeds from sale acquired from defendant Yice Spain in connection with the sale of this case, and proceeds from sale in lots.

Article 3 (Registration of Transfer of Ownership and Trust)

(1) After entering into a trust contract, Defendant ice Spanish shall, without delay, complete the transfer of ownership and the registration of trust in the future of Defendant ice trust.

② When the construction as shown in attached Form 2 on the trust real estate is completed, the defendant ice Spain shall, after undergoing a pre-use inspection, make an additional trust with the defendant ice Spain trust at the same time as the registration of initial ownership is made in the name of registration of initial ownership of the completed building.

(3) Expenses incurred in the registration under paragraph (1) shall be borne by the defendant ice, and the defendant Spain shall provide the trustee with all documents, such as the registration rights necessary for the transfer of ownership and the registration of trust, the certificate of personal seal impression, and the certificate of delegation of registration

Article 12 (Protection of Purchasers of Land by Units)

(2) Where it is impossible to implement a project due to the dishonor, bankruptcy, etc. of Defendant ice Spain, and the trust contract is terminated and settled halfway due to other reasons, the proceeds from the disposal of real estate held in trust shall be paid preferentially to the refund of the sale price by the purchaser, etc. to other right holders,

C. On December 12, 2008, Defendant Hai Spanish reported the commencement of the commercial building of this case and completed the construction work on February 16, 2009, after starting and completing the construction work, and obtained approval for the use of the commercial building of this case from Yong-si on March 26, 2010.

D. On the date indicated in the attached Table 1, the Plaintiffs concluded a contract with the seller to enter into the sales contract on the store "No. 1" (hereinafter "each of the instant sales contract") in the same table of "No. 3 and No. 4 of the sales contract" (hereinafter "the instant sales contract"), and the sales contract on the store "No. 1" in the attached Table of "No. 1" was entered into between the seller and the responsible completion company, and the Defendant KF trust and the Defendant KF trust. At that time, the Plaintiffs purchased part of the parking lot at the 3 and No. 4 of the instant sales contract (hereinafter "the instant parking lot"), in proportion to the size of each of the stores sold in lots as above, and each of the above parking lots at the 1st and No. 4th (hereinafter "each of the instant parking lot sales contract"), and the main contents of each of the above sales contract were as follows; the details of each of the sales contract by the Plaintiffs 1 and No. 4 of each of the instant sales contract are different from each of the Plaintiff 1's sales contract.

【each Sales Contract of this case】

○ Description of the property

Location; the area of the destination of the first floor of the Suwon-si ( Address omitted);

The scheduled completion date of ○: December 2009 (if altered according to the process, then the individual notice key is later notified).

○ Supply Area (unit: Site size)

The shares in the land (public share) of the building site in the section included in the main sentence shall be 17.5 8.65 26.20 3.98

○ Annexed Facilities: Electricity, roads, water supply facilities, and other ancillary facilities related to the commercial buildings;

Article 1 (Sales Price)

(1) The sale price of the above indicated documents shall be KRW 343,689,571 (including additional dues), and the buyer shall pay the purchase price at the place designated by the Defendant Boi Spanish in accordance with the following payment methods:

(4) Deposit account

Account Number: National Bank (Account Number omitted), Deposit Board: Defendant KB Trust

The supply price shall be deposited into the above account in the name of the defendant KF Trust, and the sale price paid to other accounts, other persons, or individually to employees shall not be recognized as the payment amount.

Article 3 (Transfer of Ownership)

(1) When the public book arrangement is completed, the Defendant Spain shall notify the buyer immediately, and the buyer shall complete the transfer of ownership at the purchaser’s expense within 60 days from the date on which the application for the transfer of ownership can be filed.

Article 4 (Cancellation of Contracts)

(3) The buyer may cancel this contract if the completion has been delayed for more than three months from the date of the scheduled completion of the instant construction project due to the reasons attributable to the Defendant Luxembourg, or if it has become impossible to perform the contract during the contract period, and the Defendant Luxembourg shall pay the late payment charge applying the overdue rate as set forth in Article 2(2).

(5) The buyer may cancel the contract where the buyer received a corrective order under Article 9 of the Act on Sale of Building Units from the permitting authority, and the buyer did not recover from the correction.

Article 7 (Use of Prize)

(1) Defendant ice Spain shall sell in accordance with the sale plan prepared within the scope of the approval of the project plan or the construction permit, and the buyer shall open the sale plan for the purpose that does not violate the relevant laws and regulations.

Article 9 (Management)

(1) After the sale date, the above display price shall, in principle, be managed by the purchaser, and shall be managed by the autonomous committee for commercial buildings or the managing and operating company within a prompt time.

(2) All management expenses incurred after the date of the designation of the tenant shall be borne by the buyer and the deposit for the prescribed management expenses shall be paid.

(3) The buyer's business permission according to the items of business and the supplementation of facilities according to the conditions of permission shall be treated as the buyer's responsibility and expenses.

Article 11 (Modification, etc. of Internal Structure)

(1) In the case of a change in the design that falls under Article 10 of the Enforcement Decree of the Act on Sale of Buildings, the defendant ice Spain must obtain the written consent of the buyer.

(2) In the case of a change in the design falling under Article 8(2) of the Enforcement Rule of the Act on Sale of Buildings, Defendant Spain shall notify the buyer of the change.

Article 13 (Trust and Representation Affairs)

(1) Under the “Act on Sale of Building Units”, Defendant KF Trust takes charge of fund management, such as trust registration of the project site and sales proceeds, and is not responsible for other sellers.

(2) The seller will transfer the sales price claim against the buyer of the Defendant ice Spanish to the Defendant K non-trust, and the buyer will accept it.

Article 15 (Other Matters)

(6) If the seller is unable to proceed with the project, the Defendant Doice, the seller, may be replaced by a project operator, such as Diplomatic Construction, etc., and the buyer does not object thereto.

* In order to verify the terms of this Agreement, four copies of the contract shall be drawn up and kept in each of Defendant Haice Spanish, Down, Defendant D non-trust, and buyer (sellers).

【Sale Contract for each Parking Lots of this case】

1. On the condition that the above commercial building is sold in lots, I, only the purchaser of the commercial building, promise to transfer ownership after completing the construction of 28.73 square meters of the total area of the 3-4th and fourth-story parking lot (the number of increase or decrease related to the construction may be somewhat increased or decreased) among the total area of 7,488.24 square meters (Provided, That the registration of co-ownership is made).

3. Ground 3 and 4 shall be used for a parking lot exclusively for policyholders;

E. Payment of the purchase price by the plaintiffs

According to each of the instant sales contracts, the Plaintiffs paid the money indicated in the “final payment date” column of the attached Table 1 “The date of sale contract” to the account in the name of Defendant KB Trust by the date indicated in the “final payment date.” After that, the Plaintiffs completed each registration of ownership transfer as stated in the attached Table 2 “Registration Statement” in the Suwon District Court’s registry office with respect to the pertinent shop among the instant commercial buildings that were sold in lots as above (However, with respect to Plaintiff 3 and Plaintiff 4, who are the joint buyers of △△△△, among the instant commercial buildings, as to each of 1/2 shares of 1/4 shares of the instant commercial buildings, and Plaintiff 5 and Plaintiff 6, who are some of the joint buyers of △△△△△△, among the instant commercial buildings, completed the registration of ownership transfer as to each of the shares sold in lots by the closing date of the instant contract). Meanwhile, the Plaintiffs were not fully completed the registration of ownership transfer as to each of the shares sold in lots among the parking lots of this case 301.

[Evidence] In the absence of dispute, Gap evidence 2, Eul evidence 3, 21 through 24-1, Gap evidence 6 through 11, Gap evidence 26, Gap evidence 28 through Gap evidence 31, Gap evidence 34, Gap evidence 35, Eul evidence 2, Eul evidence 35, Eul evidence 3-2, Eul evidence 3-1, 3-6, Eul evidence 7, Eul evidence 1, Eul evidence 2-1, 3-6, the purport of the whole pleadings, and the purport of the whole arguments

2. Determination as to the defendants' main defense

A. The defendants' assertion

In a case where both spouses enter into a joint contract for sale in the form of a joint name, either of the married couple withdraws the method of sharing the parcelling-out price, or actually pays the whole parcelling-out price. In this case, even in the case of Plaintiffs 3, 4, and 5, and 6, only one of the married couple actually pays the whole parcelling-out price. Thus, in relation to the claim of this case by the plaintiffs who claim restitution on the ground that the parcelling-out contract of this case was cancelled, only one of the married couple who has paid the parcelling-out price to the defendants at his own expense, shall be standing to sue.

B. Determination

In a lawsuit for performance, the plaintiff's standing as a party itself is nominal, and the judgment is absorbed into the judgment as to the propriety of the claim, so the claimant of his right to claim performance becomes a legitimate plaintiff (see Supreme Court Decisions 95Da18451 delivered on November 28, 1995; 9Da3158 delivered on September 7, 199, etc.).

In this case, the above plaintiffs of the defendants' assertion are claiming restitution or claiming restitution of unjust enrichment with respect to the sale price paid to the defendants. Thus, they naturally possess standing to sue, and whether such claims belong to the above plaintiffs or not does not constitute grounds to determine standing to sue. The above main safety defense of the defendants is without merit.

3. The plaintiffs' assertion

A. Primary Claim - The duty to restore due to the cancellation of each contract for sale in this case

1) The Defendants: (a) notified that the object of the instant sale is the first floor and the third, and fourth floor parking lots, and explained to the buyers the average unit price of the sales price of the buyers, including the above parking lot area; and (b) concluded a single sale contract by dividing the unit price into the form of the instant commercial sale contract and the certificate of parking lot supply; (c) in fact, the part of the third and fourth floor parking lots in the instant commercial building cannot be subject to sale from the beginning in violation of relevant statutes; and (d) even if sold, the Plaintiffs cannot receive ownership transfer on this part. As such, the Defendants’ obligation to transfer ownership registration on the part of the third and fourth floor parking lots in the instant commercial building, one of the core elements of the object of the instant sale contract, is impossible.

2) In addition, the Defendants sold the instant commercial building by specifying its use as the “fishery products distribution center”. As such, the sellers are contractually obligated to provide the commercial building with the basic facilities, such as active fish storage stations, freezing and freezing facilities, ice ice ice iceing facilities, water freezing facilities, fishery products loading and unloading spaces, sea water pipes, and drainage facilities so that the instant commercial building can function as the fishery products distribution center. Nevertheless, the instant commercial building does not have such basic facilities at all, and thus, the Plaintiffs failed to achieve the purpose of distributing and selling fishery products, which is the original purpose of the sales contract.

In addition, the instant commercial building has structural and functional defects, namely, entry problems of the first floor commercial building through stairs, installation of garbage treatment plants, non-establishment of the upper floor facility, lack of wastewater treatment tanks, non-establishment of cooperative facilities, failure of air distribution facilities, non-construction of air distribution facilities, incomplete installation of cargo elevators, non-establishment of cargo elevators, auction house, air conditioners, and ice storage room, etc. In addition, there are defects in the instant commercial building, and some of them are impossible to recover from defects and thus, it is impossible for the defendants to perform their obligations under the contract.

Meanwhile, at the time of entering into each of the instant sales contracts, the Defendants explained that they would provide the Plaintiffs with auxiliary facilities for the operation of the first floor commercial building, such as an auction site, warehouse, and business facilities, but the said ancillary facilities were not installed in the parking lot, and the installation of ancillary facilities in the parking lot is not possible due to any violation of laws and regulations related to construction.

3) For the foregoing reasons, the Plaintiffs expressed their intent to cancel each of the instant sales contracts and parking lot sales contracts against the Defendants through the delivery of the duplicate of the instant complaint or the copy of the briefs dated June 12, 2012 by the Plaintiffs. Therefore, the Defendants are obliged to pay each of the sales prices and damages for delay paid by the Plaintiffs to the Plaintiffs by restitution due to the cancellation of each of the instant sales contracts and parking lot sales contracts.

(b) 1st preliminary claim - Duty to return unjust enrichment upon cancellation of a sales contract based on fraud.

The Defendants actively enticed the Plaintiffs, who are the buyers, through false or exaggerated advertisements as follows, and the Plaintiffs concluded each of the instant sales contracts due to the mistake caused by the Defendants’ deception. Therefore, the Plaintiffs cancelled each of the instant sales contracts by the delivery of the duplicate of the instant complaint. As such, the Defendants are obliged to pay each of the sales prices paid by the Plaintiffs and the damages for delay due to the cancellation thereof.

1) The Defendants, by advertising the instant commercial building as “the first recognition business regarding fishery products permitted by the Government to the private sector,” made the Plaintiffs believe that the instant commercial building is a part of the business operated by the Government’s initiative and operated by the Government. However, the construction and sale of the instant commercial building was not a project subject to the government’s permission.

2) The Defendants advertised that the opening of GTX (Seoul High Railroad) was confirmed in the vicinity of the instant commercial building. However, at the time of entering into each of the instant sales contract, the Plaintiffs did not have confirmed the opening of the said GTX death, discharge from active service, and the opening of the GTX I.

3) The Defendants advertised that: (a) the instant commercial building was sold in lots; (b) the lease was completed; and (c) 70 merchants, among the merchants operating in the old-powered fisheries market, submitted a letter of intent to sell the instant commercial building. However, only 2/3 of the first floor of the instant commercial building was sold in lots; (b) the second floor restaurant was not sold at all; and (c) the lease was not completed. There was no 70 merchants of the old-powered fisheries market, and there was no submission of the letter of intent to sell the instant commercial building.

4) The Defendants advertised that the daily sales price of KRW 20 million calculated by including the parking lot size located on the 3 and 4th floor of the instant commercial building was the sales price on the 1st floor of the instant commercial building. Moreover, they recommended the Plaintiffs to purchase part of the parking lot located on the 3 and 4th floor of the instant commercial building in proportion to the size of each shop that was sold to the Plaintiffs, and explained that they would create an auction site, warehouse, business facilities, etc. for operating the commercial building as above. However, the parking lot on the 3 and 4th floor of the instant commercial building was not the object of sale at the beginning, and even if the sale was made, the Plaintiffs could not receive transfer of ownership on the said parking lot. The Defendants deceiving the sales price, which is its essential content, by advertising as if the area was subject to sale.

(c) 2nd claim - Claim for damages due to fraud

The Defendants, as joint tortfeasor with regard to the tort of the above fraud, are liable for damages against each of the plaintiffs. However, despite the cancellation or cancellation of each of the sales contracts of this case, in cases where the obligation to return the sales price is denied on the grounds that the sales price claim was transferred to the Defendant K KB trust and the actual sales price was received by the Defendant KB trust, or in cases of Defendant KB trust, the obligation to return the sales price is denied on the grounds that there is no reason that the bona fide third party is a bona fide third party or there is no existing interest, or the scope of return is limited within the limit of trust property, the Defendants are liable to pay the amount equivalent to the sales price paid by the plaintiffs as compensation for damages caused by fraud and its delay damages.

4. Judgment on the plaintiffs' assertion

(a) Facts of recognition;

(i)declaration of sale and public notice of sale;

A) Around December 2008, Defendant Liice sought a sale report including the parking lot portion with respect to the instant commercial building at the time of tolerance. However, on the grounds that “The instant commercial building is an exclusive parking building constructed to exclusively provide a parking space to the general public, and at least 70% of the total floor area of the building under the Parking Lot Act (at least 80% in the case of a district unit planning) should be used as a parking lot provided to the general public, and it cannot be sold separately as an attached parking lot.” Defendant Liice reported the sale of the commercial building by excluding the part area of the instant commercial building as set forth below, and obtained a completion report from the time of tolerance on December 10, 2008.

○ Total floor area for sale: 6,828.53 square meters (excluding part of a parking lot)

○ For the purpose of sale in lots: Sales facilities (stores) and Class II neighborhood living facilities (general restaurants)

○○ Lot: Sales facilities (stores) and Class II neighborhood living facilities (general restaurants) 112 rooms.

B) On December 23, 2008, Defendant Doi Spanish published a public offering for sale on the instant commercial building, and the details on the scale and details of the supply are as follows. In the case of the public offering for sale, the sale price per square meter on the first floor of the instant commercial building was equivalent to the average of KRW 40 million.

○ Supply Scale: from the first floor to the second floor above ground (sales facilities (stores) and 91 neighborhood living facilities (general restaurants) 21);

○ Details of supply (one part is indicated as sample)

42. 42.74.74 62.81 9.5328, 328 102 39.49.46 58.947 8.947 73, 108 108 1039.49.46 19.46 8.947 73,108 108 1039.49.49 58.97 73,108 103 19.49.6 58.9747,108

C) As the sales report or public announcement of the sale in lots was made on the first floor of the commercial building of this case at the time of permitting the commercial building of this case, it was anticipated that the sale in lots should not be made properly because the sale in lots is higher than the neighboring market price. Accordingly, as to the third and fourth floor parking lots of this case, the above parking lot portion should not be sold because the sale in lots was not reported under the Act on the Sale in Lots of Buildings. Further, the commercial building of this case can not be sold as the commercial building and the attached parking lot in excess of 30% (20% in the case of the district unit planning) of the total floor area of the building according to the Parking Lot Act (in the case of the commercial building of this case, the area of the commercial building and the parking lot of the commercial building of this case exceeds 30% of the total floor area of the commercial building of this case), the commercial building and the parking lot of this case are relatively less than 30% of the sales in lots than the 1st floor of the commercial building of this case.

2) Advertisement and articles on the commercial building of this case

A) According to the aforementioned determination and publicity of the sale price of the Internet real estate information, the Internet real estate information news, etc. was introduced from January 13, 2009 to KRW 1,8460,000 to KRW 2,670,000. Defendant Spain published the advertisement of the sale price of the instant commercial building on April 15, 2009 to April 16, 2009, under the title “the sale price of the instant commercial building is KRW 18 million to KRW 2,100,000 to KRW 1,846,00 to KRW 2,367,00,00.” The advertisement of the sale price of the instant commercial building on April 15, 200 to KRW 261,616,00 to KRW 266,00,00 to KRW 1666,00,00 to KRW 1666,00.

B) In addition, Defendant Lice Spain advertised the sales of this case in eight times during the period from January 6, 2009 to February 6, 2009, despite the fact that the bid rate of subscription as of January 6, 2009 was 4: 1: the highest 8:0,000 from January 6, 2009 to February 6, 2009, when it is based on the person who deposited subscription money for the sales store, Defendant Lice Spain advertised the sales of this case in the daily newspapers, such as Joseon Day, Central Day, and Daily Economy, etc., under the title "the competition rate of related wholesale business entities": 28.2: 1, dry fish sales, 13.8: 1, 18.5, 1, 18.5, 1, 21, 21, and 11.2: Each sales facility is published after the receipt of an offer for consultation."

C) Defendant Liice Spanish recommended to reduce the course of entry into the IC prior to the death of a light-line (2 February 2, 2009), published the contents of the articles of the Yonhap News (C. 23 November 23, 2009) and the Korean Housing Newspapers (C. 27 November 27, 2009) in the daily newspapers, including the Japanese War from February 26, 2009 to September 18, 2009, the sales advertisement of the instant commercial buildings, including “GTX-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S

However, at the time of the advertisement, the metropolitan rapid railway project in the Seoul metropolitan area recommended the promotion of the project to the Ministry of Land, Transport and Maritime Affairs based on the research services of the Korea Traffic Academy at the Korea Land, Transport and Maritime Affairs (hereinafter "the Ministry of Land, Transport and Maritime Affairs") and the project plan was not reflected in the national plan, and the plan was not finalized at the time of the advertisement.

D) In addition, Defendant Lice Spanish used the same expressions as “Private Party 1,” while advertising the instant commercial building, and introduced the instant commercial building through Internet newspapers, etc. on January 13, 2009, January 19, 2009, and January 22, 2009 as “the first approved business pertaining to fishery products permitted by the Government to the private sector.” However, Defendant Spanish did not have obtained the “fishery products related permission” from the relevant authorities with respect to the instant commercial building.

3. Conclusion of each of the instant sales contracts

A) Defendant Liice Spanish prepared a sales inspection table that calculated the sales price per square meter by aggregating the store size and the parking lot size on the first floor of the instant commercial building, and delivered it to new Liice Co., Ltd., Ltd. (hereinafter “New LiC”), Nadi C&C (hereinafter “NadiC”), and Nadi C&C (hereinafter “Nadi”), respectively.

B) NaNC explained to the Plaintiffs who want to purchase the 1st floor store under the orders of Defendant LiBS, that the above sales inspection table should be presented, and that the usual sales price per the 1st floor store of this case should be KRW 20 million, and the Plaintiffs would be offered to the buyers by creating incidental facilities, such as a 3th floor parking lot, warehouse, business facilities, etc. for the operation of the 3th floor and the 4th floor parking lot. The Defendant’s attorney argued that there was no need for the Plaintiffs to use the 3th floor parking lot as the 1st floor parking lot, and that it would be possible to generate additional profits through the operation of the parking lot. However, in light of the above argument, it is difficult to find out the above part of the sales contract at the 0th floor or 4th floor parking lot to the extent that the Plaintiffs would have sold the 1st floor parking lot at the price of each of the 100th floor or 200th floor parking lot without consideration.

C) The third floor above the instant commercial building is also marked as “warehouse and business facility,” and the third floor above the instant commercial building is marked as if it was a warehouse and business space in various Internet articles, such as the central library published on the Internet from January 14, 2009 to April 19, 2009.

D) The Plaintiffs, under the trust of the Defendant Liice Spain that they can use the 3th floor parking lot of this case for the purpose of the business of the 1st floor store, as well as for the annexed parking lot for the operation of the 1st floor commercial building, concluded that some of the parking lots of this case will be sold together in proportion to the size of the 1st floor store (excluding the 3th floor parking lot area and the 4th floor parking lot area, as seen earlier, if the 1st floor sale price is calculated on the basis of only the 1st floor area of this case, the sale price recorded on the advertisement is higher than 2 times as much as the parking lot recorded on the advertisement. However, as seen in the facts of the 1st floor above, in preparing the sales contract, the Plaintiffs entered only the area of the 1st floor parking lot in the sale area column as requested by the Defendant Liice Spain, and set up a separate parking lot sales contract with respect to the parking lot part.

(d) The status of the use of the third floor parking lot;

A) Around July 2010, Defendant ice Spanish: (a) performed a construction work to create a water pipe installation area and a water tank area for live in a space of 120 square meters above the third floor above the ground, even though it was well aware that it was illegal; (b) on July 22, 2010, the said construction work and a water tank installation was ordered to take corrective measures against a non-compliant building pursuant to Article 79 of the Building Act on the ground that it violated the prohibition against the alteration of use of an attached parking lot under Article 19-4 of the Parking Lot Act; and (c) thereafter, Defendant ice removed a water pipe in accordance with the corrective order at the time of tolerance; and (d) received a notice of completion of correction of a non-violation building from the time of tolerance on August 12, 2010.

B) On April 18, 201, when the instant lawsuit was pending, there was an empty stuff, etc. in the upper lower-class area located at the left-hand side of the entrance of the third floor parking lot. On the other hand, in order to transport goods, etc. to the first floor in the said area, the elevator should be used. On the other hand, in the instant commercial building, there is no cargo elevator other than three elevators for customers, and even if an elevator for customers can be used for cargo transport, the elevator for customers should walk at least 50 meters in order to move to the said area for customers.

5) Determination by the Fair Trade Commission

A) On January 31, 2011, the Fair Trade Commission issued a corrective order and a public announcement as to the Defendant’s sales advertisement of the commercial buildings of this case on the following grounds: (a) even though the Defendant did not decide on whether to implement the metropolitan rapid railway and the IC project; (b) the project was determined and the order was issued to correct and publish the false or exaggerated advertisement as if the new traffic-related facilities were installed in the vicinity of the sale property.

B) On October 24, 2011, the Fair Trade Commission issued a corrective order with regard to the act of advertising the sales price of the instant commercial building as if the Defendant Liice had been much higher than the actual competition rate while advertising the sales price of the instant commercial building; the act of advertising as if the sales price was completed even if the sales price of the store located on the first floor was not completed; and the act of advertising as if the sales price was considerably lower than the neighboring commercial facility price without any objective basis; and the Defendant Liice and Nonparty 2 filed a complaint with the prosecution against the said matters.

[Evidence] In the absence of dispute, Gap evidence 1 through Gap evidence 4-2, Eul evidence 6 through 15, Gap evidence 17 through 20, Gap evidence 36 through Gap evidence 45-5, Gap evidence 47-1, 2, Gap evidence 48, Gap evidence 60 through 66, Gap evidence 70, Gap evidence 72-1 through Gap evidence 76-2, Gap evidence 74-1 through Eul evidence 76-1, Eul evidence 10-2, Eul evidence 10-1, Eul evidence 15 through Eul evidence 19-42, Eul evidence 3-1 through 42, Eul evidence 3-2, Eul evidence 3-1 through 4-2, the purport of the whole oral pleadings, the purport of the whole oral pleadings, and the purport of oral pleadings

B. Judgment on the main claim

1) A contract may be rescinded on the ground of the nonperformance of an incidental obligation arising from a contract is limited to cases where the obligee is unable to achieve the purpose of the contract due to such nonperformance or where there is a special agreement. Furthermore, the distinction between the principal obligation and the incidental obligation arising from a contract and the main obligation, regardless of the independent value of payment, shall be determined by the party’s reasonable intent expressed in concluding the contract or at the time when the contract is concluded, and objectively determined by the party’s reasonable intent clearly expressed in the situation at the time, and such various circumstances as the content, purpose, result of failure, etc. of the contract shall be considered (see, e.g., Supreme Court Decision 2011Da102

2) As alleged by the Plaintiffs, although the Defendants, as the “fishery products distribution center” in relation to each of the instant sales contracts, have contractual obligations to provide commercial buildings with the basic facilities to function as the fishery products distribution center, it is difficult for the Plaintiffs to achieve the original objective of the sales contract because they did not have all the basic facilities, or as to whether there was structural and functional defects in the fishery products distribution center in the instant commercial building. According to each of the evidence Nos. 36, 37-1 through 19, the Defendant’s “fishery products distribution center” as at the time of selling the instant commercial building among the instant commercial buildings to the Plaintiffs, it is insufficient to recognize that the above acknowledged facts alone lack the obligation of the Plaintiffs to use the above evidence No. 37-1, 2, 3, 7, 8, 13, 14, 18, 14, 194 through 47, and 47, and evidence No. 97, and evidence No. 96, No.

However, as seen earlier, Defendant Liice entered into an agreement with the Plaintiffs to use the 3 and 4th floor parking lot as an exclusive parking lot for the business of the 1st floor, as well as to install an auction site, warehouse, business facilities, etc. for the business of the 1st floor in the above parking lot. The Plaintiffs trust the above agreement with the 1st floor and agreed to sell a part of the store size proportional to the 1st floor area of the instant parking lot together with the 3th floor. However, the instant parking lot as an exclusive parking building, should be used as a parking lot for the 70% or more of the total floor area of the building (80% or more in the case of the district unit planning) under the Parking Lot Act, and it can be subject to criminal punishment pursuant to the Parking Lot Act or administrative measures from the administrative agencies related thereto. Accordingly, even if the 3 and 4th floor parking lot was sold from Defendant Liice to the 3rd floor parking lot, the Plaintiffs cannot use it as an exclusive parking lot for the 1st floor (the 3th floor parking lot in question).

However, the above facts revealed, i.e., ① the sales contract of this case for the purpose of purchasing the store located on the first floor among the commercial buildings of this case; ② the public notice of the invitation of sale in this case and the sales contract of this case are prepared at an average of KRW 40 million. According to the sales contract of this case separately concluded each of the parking lots of this case, the plaintiffs explicitly stated that the sale contract of this case cannot be concluded at the same time as the transfer of ownership of the commercial building on the condition that the above commercial building was sold in lots in the third and fourth floors, and it is impossible for the plaintiffs to enter into the sales contract of this case for each of the above reasons that the sale contract of this case cannot be concluded at each of the parking lots of this case because the sale contract of this case was executed on the condition that the above commercial building was sold in lots in this case and its ownership was transferred to the co-ownership of the above 300,000,000 won.

Ultimately, on the contrary premise, the plaintiffs' primary claim seeking restitution on the premise that the plaintiffs cancelled each of the instant sales contracts and the parking lot sales contracts is without merit.

C. Judgment on the first preliminary claim

1) Whether the sales contract of this case and the sales contract of parking lot was cancelled

A) Generally, the mere exaggerations and false statements in the advertisement of goods generally constitute deceptions exceeding the bounds of exaggerations and false advertisements, in a case where specific facts about important matters in the transaction are falsely notified in a manner that would be subject to criticism in light of the transactional duty in good faith and good faith. However, it constitutes deceptions exceeding the limits of exaggerations and false advertisements (see, e.g., Supreme Court Decisions 2003Da69195, Oct. 15, 2004; 91Do294, Sept. 14, 1992).

According to the facts of recognition, although Defendant 1 did not have obtained any permission related to fishery products business from the relevant authorities in operating the commercial buildings of this case as the fishery products distribution center, it is reasonable to view that Defendant 1 made a publicity or advertisement such as “civil 1” or “the first fishery products approval business permitted by the Government” or “the first fishery products-related business permitted by the Government.” The Plaintiffs reported the expression of the above advertisements, and made the store stable operation by operating the fishery distribution business operated by the commercial buildings of this case with the permission of the government, and made consumers expect that the government's business will be able to take advantage of credibility as it is possible to grant credibility to consumers, and thus, it constitutes an important fact that the Plaintiff 1 did not make efforts to accurately confirm whether the sale contract of this case became final and conclusive at the time of conclusion of each sale contract of this case, and it constitutes an advertisement of new transportation-related facilities around the commercial buildings of this case, and it is more likely that the Plaintiffs might have made an excessive decision on the sale contract of this case as to the convenience and convenience of sale of this case.

B) Also, as seen earlier, Defendant Liice Spanish can use the said parking lot for the exclusive parking lot for the first floor and for the exclusive parking lot for the first floor, as well as for the establishment of an auction room for the first floor business, warehouse, business facilities, etc. in the said parking lot. However, in fact, the Plaintiffs cannot use the 3 and 4th floor parking lot for the first floor business other than for the parking lot.

Meanwhile, despite the fact that Defendant Liish was unable to sell the 3 and 4th floor parking lot from the beginning to the annexed parking lot, and that it was impossible to change the purpose of the use of the parking lot of this case, Defendant Liish, despite the fact that the sale price of the commercial building of this case was considerably low compared to the 1st floor commercial building in order to lower the sale price of the commercial building of this case, calculated the 1st floor parking lot by including the area of the 1st floor parking lot in the area of the 1st floor, and that the 3th floor parking lot of this case is only 2/3 of the neighboring market price, to attract the Plaintiffs who are harsh to purchase the 1st floor parking lot of this case including the parking lot area of this case, the 3th and 4th floor parking lot can be operated as the annexed parking lot or that the use of the parking lot can be changed to the 1st floor parking lot of this case. Considering the circumstances that the above series of acts by Defendant Liish did not exceed ordinary advertising and business activities, it constitutes the 3rd parking lot of this case.

C) As to this, Defendant Liice’s assertion that, after the approval for the use of the commercial building of this case, the sales contract of this case was entered into on its own responsibility and judgment without any error, the contract cannot be cancelled. As such, Defendant 2, 4, 3, 5, and 6 asserted that the sales contract of this case and the parking lot sales contract of this case on the ground of fraud, etc. cannot be cancelled. The fact that the sales contract of this case was entered into after March 26, 2010, when the approval for the use of the commercial building of this case was made on or after March 26, 2010 is recognized as above. However, considering the above contents of Defendant Liice’s deceptive act, it is difficult to view that the above Plaintiffs were aware or could have known, and there is no other evidence to acknowledge this, the above Plaintiffs also seem to have entered into the sales contract of this case on the ground of deception due to the mistake caused by the use of the commercial building of this case. The above assertion by Defendant Liice is without merit.

D) Therefore, each of the instant sales contracts and each of the parking lot sales contracts concluded with each of the instant sales contracts were concluded by Defendant Liice’s deception, and thus, the sales contract was lawfully revoked by delivery of a copy of the instant complaint containing the Plaintiffs’ intent of revocation.

2) Establishment of obligation to return unjust enrichment upon cancellation of a contract

A) At the time of the conclusion of each sales contract of this case, the defendant Doi Spanish transferred the claim for each of the sales price of this case to the defendant K non-trust, and the plaintiffs consented thereto (Article 13(2) of each of the sales contracts of this case). The fact that the plaintiffs paid all of the sales price of this case to the defendant K non-trust account is recognized as the basis of 1.

In this factual basis, as to the legal relationship in which each contract for sale in this case was cancelled, the relationship of direct claim and obligation was established between the plaintiffs, the debtor, and the defendant KB trust, as the transfer of each of the contracts for sale in this case's price claims. In a case where each of the contracts for sale in this case, which was the basis thereof, was cancelled and becomes retroactively null and void, barring any special circumstance, the payment that the plaintiffs performed to the defendant KB trust based on the above bonds and debt relations, barring any special circumstance, shall be deemed to have no legal cause. Thus, the defendant KB trust, the payment of which was performed, is obligated to return to the plaintiffs (see Supreme Court Decision 200Da22850, Jan. 24, 200

In addition, Defendant Lice Spain did not have received any benefits from the Plaintiffs as the entire claim for the sale price of this case was transferred to Defendant DB Trust. However, Defendant DB Trust, as a trustee of the sale management trust contract, has the right and obligation to receive and manage the sale price of this case by acquiring the claim of this case to protect the buyers by appropriately managing and executing the sale price in accordance with the Act on the Sale of Buildings as a trustee of the sale management trust contract. Defendant DB Trust also bears the duty of return due to the cancellation of the sale contract only within the extent of trust property managed under the sale contract of this case and the agency contract of this case. In light of the fact that Defendant DB Trust, as a trustee of the sale management trust contract, has the right and obligation to receive and manage the sale price of this case by acquiring the claim of this case to protect the buyers. Defendant DB also bears the duty of return due to the cancellation of the sale contract of this case to the Plaintiffs.

Meanwhile, since each obligation for return of unjust enrichment on Defendant LiSpan and Defendant KiS trust is extinguished by one party’s performance of an obligation with the same economic purpose, one party’s obligation also ceases to exist. Therefore, each obligation is jointly and severally liable to the extent that it overlaps.

B) Determination as to the assertion of Defendant KF trust

(1) Defendant KB Trust asserts that even if the sales contract of this case was lawfully cancelled, it is merely a beneficiary of a contract for a third party, or it is merely a third party who is a party to each sales contract of this case and who is a party to each sales contract of this case, and thus, it cannot be the counter party to a claim for return of unjust enrichment due to the cancellation of each sales contract of this case.

However, as seen earlier, Defendant K non-trust’s exercise of its claim for the sale price of this case and received the sale price from the Plaintiffs, and as seen earlier, it was based on the fact that Defendant D non-trust transferred each claim for the sale price of this case to Defendant DB trust at the time of entering into each of the instant sale contracts by the Plaintiff and Defendants, and that the Plaintiffs consented thereto. Furthermore, Defendant D non-trust merely received and managed the sale price claim of this case to protect the buyers by appropriately managing and executing the sale price as prescribed by the Act on Sale of Buildings as a trustee of the sale management trust contract, and it does not aim at the exercise of its claim for the sale price of this case to protect the buyers. Thus, it cannot be said that Defendant D non-trust is merely the beneficiary of the contract for a third party or merely the counter-party of the reduction of the sale price under the direction. On the contrary premise, the above assertion of Defendant DB trust on the premise above is without any justifiable reason.

(2) Defendant KF Trust asserts that since the Plaintiffs did not withhold objection to the transfer of each of the instant sales price claims, the cancellation of each of the instant sales contracts pursuant to Article 451(1) of the Civil Act cannot be asserted against Defendant KF Trust, the assignee of the claim, as the cancellation of each of the instant sales contracts.

First of all, according to Article 13(2) of the sales contract of this case, the fact that "the sales contract of this case was concluded at the same time as the sales contract of this case was entered into, and the buyer's consent was made." However, since the plaintiffs were unaware of the fact that the contract of this case was executed at the time of entering into each of the sales contracts of this case, it was impossible for them to withhold objection and give consent to the transfer of credit. ② Article 451(1) of the Civil Code provides that the transfer of credit is to protect the trust of the transferee and guarantee the safety of the transfer of credit transaction. The acquisition and management of credit of the sales contract of this case was intended to protect the buyer as the trustee of the sales contract of this case, and the plaintiffs' assertion that the transfer of credit of this case was made at the time of entering into each of the sales contracts of this case is not for the proper interest of the defendant non-trust trust is not for the truster of the sales contract of this case.

(3) Next, Defendant KF Trust asserts that the cancellation of a legal act on the ground of fraud cannot be set up against a bona fide third party (Article 110(3) of the Civil Act). As Defendant KF Trust constitutes “a bona fide third party”, it cannot be set up against Defendant KF Trust with the cancellation of each sales contract of this case.

The third party under Article 110 (3) of the Civil Act, which cannot be asserted by the cancellation of a juristic act on the ground of fraud, refers to the person who has established an interest as a new legal cause based on the expression of intent by fraud (see Supreme Court Decision 96Da44860, Dec. 26, 1997, etc.). Whether it constitutes it should be determined based on the legal relationship rather than formally. As seen earlier, it should be judged based on the legal relationship. As seen above, Defendant KB trust merely acquired the claim of this case from Defendant LBS, the seller of the sales revenue for the management and execution of the sales revenue, and it does not have a unique legal interest with regard to the claim for the sales price of this case. After all, Defendant KB trust cannot be viewed as a trust under Article 110 (3) of the Civil Act, which has no reason to claim that it constitutes a non-party under Article 110 (3) of the Civil Act.

(4) The defendant KB trust is last, and there is a defense of simultaneous performance that the plaintiffs could not respond to their claims until the registration of transfer of ownership in the names of the plaintiffs who completed each of the above stores among the commercial buildings of this case is cancelled.

As seen earlier, it is recognized that the plaintiffs completed each registration of ownership transfer as stated in the "Registration Status Table" in the attached Table 2 of the Suwon District Court's Registration Office with respect to the relevant store among the commercial buildings of this case, and since each of the sales contracts of this case was legally cancelled, the plaintiffs are obligated to cancel each of the above registration of ownership transfer in the plaintiffs' names completed each of the above real estate as a return of unjust enrichment following the cancellation of each of the sales contracts of this case to Defendant KB Trust, and the obligation to cancel each of the above registration of ownership transfer and the obligation of the defendants to return the sale price to

The above simultaneous performance of Defendant KF trust is reasonable.

3) Scope of return of unjust enrichment

A) Basic legal principles and the summary of the parties’ assertion

(1) In returning unjust enrichment, a bona fide beneficiary is obligated to return the benefit he/she has received to the extent of existence, and a malicious beneficiary is obligated to return the benefit he/she has received with interest added thereto (Article 748 of the Civil Act). The term “faith” in this context refers to recognizing that his/her own interest has no legal cause. The circumstance that holding the benefit does not have any legal cause is insufficient, i.e., awareness of the fact that it constitutes the requirement for the occurrence of the obligation to return unjust enrichment. Furthermore, as to the fact that he/she is a malicious beneficiary, the burden of proof is borne by the party asserting that he/she is a malicious beneficiary (see Supreme Court Decision 2009Da24187, 24194, Jan. 28, 2010

Meanwhile, if a beneficiary becomes aware of no legal ground after receiving the benefit, he/she is liable for return of the benefit as a malicious beneficiary (Article 749(1) of the Civil Code), and if a bona fide beneficiary loses it, he/she shall be deemed a malicious beneficiary from the time of filing the lawsuit (Article 749(2)).

(2) As to the claim for the payment of the sale price already paid and the interest accrued from the day after the last day of the payment on the premise that the Defendants constituted a beneficiary, Defendant KB trust asserts that, since Defendant KB trust is a bona fide beneficiary, there is no obligation to refund interest, and further, Defendant KB trust has a duty to return only within the extent of trust property managed under the instant sale trust agreement and the agency business

B) Determination on the scope of return

(1) First of all, as to whether Defendant Liice is the beneficiary of bad faith, in light of the facts acknowledged in paragraphs (1) and (c) above, and the degree of deception, etc., it can be sufficiently recognized that Defendant Liice is the beneficiary of bad faith. However, as to Defendant Kiice Trust, it is insufficient to recognize Defendant Kiice Trust as the beneficiary of bad faith solely with the descriptions of Gap evidence 11, Gap evidence 34, Gap evidence 35, Gap evidence 78-1 through Gap evidence 83-4, Gap evidence 84, Eul evidence 7, and Eul evidence 7, and there is no other evidence to acknowledge this otherwise.

(2) Next, when claiming the return of the purchase price to the Defendants, the Plaintiffs seek interest or delay damages at the rate of 20% per annum as stipulated in the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the day immediately following the date of service of a copy of the complaint of this case to the day of complete payment. However, as seen above, the Defendants’ obligation to return the purchase price already paid to the Plaintiffs and the Plaintiffs’ obligation to simultaneously perform the procedure for registration of cancellation of ownership transfer to Defendant K non-trust as stated above. Thus, even if the performance period of both obligations comes in the bilateral contract, the Defendants are not liable for delay even if they fail to perform their obligations until the other party’s performance is performed. In order to eliminate the Defendants from delay of payment, the Plaintiffs’ obligation to return the sale price to the Defendant at least after preparing documents necessary for registration of the sale price of this case and notify the Defendant of the fact that the Defendants received the sale price at least 60% of the sale price and to receive the sale price from the date of delivery of the sale price at least 30% of the sale price for each of this case.

(3) Finally, as to whether Defendant KB trust bears the duty of return only within the extent of trust property under the instant trust contract and the agency contract, and the title of Article 13(1) of the sales contract of this case provides that Defendant KB trust takes charge of the management of funds such as the registration of the trust site and the receipt of the sales contract of this case, and that it is not responsible for other sellers. Article 13(2) provides that Defendant KB trust shall transfer the sales price claim to Defendant KB trust. This is interpreted as having been transferred the sales price claim for the purpose of managing the sales price of this case as the trustee performing the trust and the agent's business, and it is interpreted as having been clear that there is no liability for the sales contract of this case for the purpose of exceeding the purpose of this business. ② According to the sales contract of this case, the trustee uses the sales price in this case in accordance with the business agreement and the agency contract of this case (Article 6), and the trustee is not liable for the trust business of this case or the trust property's obligations arising out of the trust contract of this case (Article 147).

In addition, where a trustee bears liability within the extent of trust property, the creditor'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 the executory power so that compulsory execution against the trustee's own property is not possible (see Supreme Court Decision 2009Da83797, Feb. 25, 2010, etc.).

4) Sub-committee

Therefore, as a result of the return of unjust enrichment due to the cancellation of each sales contract of this case, the plaintiffs (i) is a malicious beneficiary under Article 748 (2) of the Civil Code, which constitutes the profit received pursuant to the interest under the same paragraph. (ii) The "sale price paid" in the attached Table 1, which is the purchase price paid by the plaintiffs, and as the plaintiffs seek against each of the above money, legal interest shall be paid at the rate of 6% per annum under the Commercial Code from each of the dates mentioned in the same table to the date of full payment (the "final payment date" to the date of full payment) and (ii) the defendant K non-trust shall not exercise concurrent performance right unlike the defendant K non-trust in this case. (iii) The defendant K non-trust shall have the obligation to cancel the registration of ownership transfer in the attached Table 2, "Real Estate" to each of the real estate stated in the "registration Status" column from the plaintiffs, and at the same time, it shall be within the limit of trust property and within the limit of 20% of the sale price stated in the attached Table 130.

D. Judgment on the second preliminary claim

1) The second preliminary claim against the Defendant Boi Spanish is sought in cases where the duty to return the sale price is denied on the grounds that the claim for the sale price was transferred to the Defendant KB trust and the Defendant KB trust received the actual sale price. As seen earlier, as long as the claim for return of unjust enrichment equivalent to the sale price paid to the said Defendant was accepted, the second preliminary claim against the said Defendant does not return any further.

2) Next, even though the obligation to return the sale price already paid was recognized for Defendant KF Trust, the scope of return was limited within the limit of the trust property. Therefore, it is necessary to examine the second preliminary claim by the Plaintiffs.

The plaintiffs' second preliminary claim is a tort claim on the premise that the defendant K non-trust is the joint tortfeasor who is well aware of and participated in the fraudulent act of the defendant K-Spanish. However, the entries in Gap evidence 34, Gap evidence 35, Gap evidence 78-1 through Gap evidence 83-4, Eul evidence 84, and Eul evidence 7 are insufficient to recognize that the defendant K-Span trust was well aware of, or was involved in, the fraudulent act of the defendant K-Spanish, and there is no other evidence to prove otherwise. Further, although the plaintiffs asserted to the effect that the defendant K-Span trust breached the duty of care of a good manager, each of the above evidence alone is insufficient to recognize the violation of the duty of care of a good manager of the defendant K-S trust, and there is no other evidence to acknowledge it. Even if the defendant K-Span trust violated the duty of care of a good manager in the above contract, even if it is not directly liable for damages against the plaintiffs due to the breach of the duty of care of a good manager.

The plaintiffs' second preliminary claim against the defendant KB trust is without merit.

5. Conclusion

Therefore, the plaintiff's primary claim is dismissed as it is without merit, and the plaintiff's primary claim is partially accepted within the scope of the above recognition. The plaintiff's primary claim against the defendants is dismissed as it is without merit. Since the part against the defendants in the judgment of the court of first instance is partially unfair, the judgment of the court of first instance, including the extension in the trial and the additional claim, shall be modified as above. It is so decided as per Disposition.

[Attachment]

Judges Kim Yong-dae (Presiding Judge)