2014hap203810 Return of unjust enrichment

A literature Jung-Council

Attached Form 3 is as shown in the list of the defendants.

March 23, 2016

May 27, 2016

1. The Plaintiff:

(a) Defendant B, C, D, and E respectively KRW 20,000,000 and any of them;

(1) With respect to KRW 10,000,000, the amount calculated at the rate of 5% per annum from March 20, 2014 to October 7, 2014; 20% per annum from the next day to September 30, 2015; and 15% per annum from the next day to the day of full payment;

(2) As regards KRW 10,000,000, the interest rate of 5% per annum from March 20, 2014 to October 6, 2015 and 15% per annum from the next day to the date of full payment;

B. The amount calculated by applying the respective 5% per annum from March 20, 2014 to May 27, 2016 and 15% per annum from the following day to the date of full payment: (a) Defendant F, Defendant G, H, Defendant J, Defendant K, Defendant L, Defendant M (Appointed Party), Defendant N, Defendant0, Defendant P, Defendant P, P, and Selected Q, respectively; and (b) the amount calculated by applying the respective 5% per annum from the following day to the date of full payment;

sub-payment.

2. The Plaintiff’s remaining claims against Defendant F, Defendant G, Defendant H, Defendant I, Defendant J, Defendant K, Defendant L, Defendant M, Defendant N, Defendant N, Defendant0, and Defendant P and Selection are dismissed, respectively.

3. The costs of the lawsuit are assessed against the Plaintiff, Defendant B, C, D, and Q. The costs of the lawsuit are assessed against the said Defendants. The remainder between the Plaintiff, the remaining Defendants, and Q. shall be assessed against the Plaintiff 25%, and the said Defendants and the designated parties Q. 75%, respectively.

4. Paragraph 1 can be provisionally executed.

Order No. 1) and Defendant F, G, H, I, J, K, L, M (Appointed Party), N,O, P, and Selection Q will pay 10,00 won with 5% per annum from March 20, 2014 to the date of final delivery of a copy of the complaint of this case, 20% per annum from the following day to September 30, 2015, and 15% per annum from the next day to the date of full payment.

1. Basic facts

A. The Plaintiff is a door with R as a joint line, and Defendant B, C, D, and E (hereinafter in this case, the Plaintiff’s remaining Defendants, except for Defendant B, etc., and when it is necessary to distinguish them from Defendant B, etc., and Q (hereinafter in this case, referred to as “Defendant B, etc.”) and the designated Defendants Q (hereinafter in convenience, referred to as “the Defendants”) are doorors in the Plaintiff’s literature.

B. The part relating to the issue of the instant case among the rules of the Plaintiff’s literature (Evidence A No. 18) is as follows.

Article 11 (Regular Session) The regular meeting shall be held at the office of the ordinary meeting or at the place designated by the president on October 5 of every year: Provided, That the matters concerning 1.2.3 from among the matters decided by the general meeting under Article 12 may be resolved by the special meeting.The following matters shall require the resolution of the general meeting: 1. Matters concerning the amendment of the rules; 2. Matters concerning the acquisition and disposal of basic property; 3. Matters concerning the approval of the budget and settlement of accounts; 4. Election of officers; 5. Election of officers; 1. Other matters concerning the approval of the budget and settlement of accounts; 5. Election of officers; 1.5. Other matters concerning the budget and settlement of accounts; 1/2 or more from among the members; or 2) the chairman may convene the general meeting on behalf of the chairman.The regular meeting under Article 13 (Extraordinary General Meeting) shall, if necessary, be convened by the chairman. The following matters shall be deliberated by the chairman:

C. On August 19, 2013, the Plaintiff’s door entered into a sales contract with the Plaintiff’s 7,669.7 square meters (hereinafter “instant land”) in terms of ownership of the Plaintiff’s KRW 5,817,53,360 (hereinafter “instant land”) and sold the purchase price to the Plaintiff’s 45,352 square meters in Daegu-gun, Daegu-gun, which was paid KRW 5,81,75,330 as the down payment on August 23, 201, and received KRW 581,75,30 as the down payment.

D. The Defendants filed an application with the Daegu District Court 2013Kadan8702 for the injunction against disposal of the pertinent land on the ground that there was a defect in the resolution of the literature-based general assembly that approved the disposal of the instant land, and completed the decision of acceptance on December 12, 2013, and completed the registration of the entry in accordance with the said decision.

On December 20, 2013, in order to solve the problem of the above provisional disposition, the plaintiff Jung-gu prepared a letter of agreement (the evidence No. 3, hereinafter referred to as the "certificate of agreement in this case") with the defendants as stated below with the defendants. The defendants, after preparing the letter of agreement in this case, withdrawn the application for the above provisional disposition on December 23, 2013 and consented to the cancellation of the execution.

1. Indication of real estate: The content of the agreement is 2.2. T (7,69.7 square meters among 45,352 square meters) in Daegu-gun (7,69.7 square meters). Of the above real estate purchase price of KRW 5,817,53,360, a gold of KRW 3 billion, excluding taxes and operating expenses in the door, shall be equal to 150 households based on 150 households among the door. However, in a case where the number of households is increased or decreased by 150 households by grasping the actual conditions of members in the fair and objective door between the person with the provisional disposition authority F and twenty (the Defendant) and the Plaintiff, the number of households shall be determined according thereto. However, the amount of distribution by the person with the provisional disposition authority under the above criteria is liable and paid among the door no later than 31, 2013 square meters, and the payment agency shall be the law firm of the case recipient and the representative of the door and the individual co-contractor no more than 20, the Plaintiff and the joint guarantor 20.

(Defendants) shall deliver to S a written application for cancellation of a provisional injunction against real estate disposal.

E. Upon the cancellation of the execution of the above provisional disposition on December 30, 2013 in accordance with the letter of agreement in this case, in order to secure the payment of the purchase price to be distributed to the Defendants, the Plaintiff Jung Heavy and S agreed to keep the said company until January 31, 2014, which is the due date specified in the letter of agreement in this case, in order to ensure the payment of the purchase price.

F. However, on January 26, 2014, prior to the foregoing distribution deadline, the Plaintiff’s literature held an extraordinary general meeting and resolved as follows with the consent of all participants: (a) from January 29, 2014 to June 27, 2014, submitted a transcript of the register and a copy of resident registration; and (b) distributed KRW 228,200,000 per capita KRW 10 million to 228 persons confirmed as original members.

A person who has approved the sale and purchase contract of the real estate owned by the second sentence of subparagraph 11 shall explain the details and circumstances of the sale of the real estate indicated below among the real estate owned by the original sentence, and shall request to determine the provisional decision on the approval of the sale and purchase contract with the consent of all the participants. (1) The sale price of the real estate in this case shall be at least 5,817,553,360 won: The sale price of the land in this case shall be at least 19 years of age. (2) The sale price of the real estate in this case shall be at least 5,817,53,360 won. (3) The sale price of the real estate in this case shall be distributed at least 19 years of age without distinction between South and North. (3) The distribution method shall be paid once or twice a week in the order of documents (re-written copies, resident registration copies, identification

G. Meanwhile, the Plaintiff’s door, after the resolution on January 26, 2014, found that the Plaintiff’s door was aware of the KRW 150,00, more than 230, and more than 75,000 anticipated at the time of the preparation of the instant letter of agreement, requested S to prohibit the payment of the said deposited money on March 15, 2014.

Accordingly, on March 19, 2014, the Defendants revealed that, if they did not distribute the purchase price on the grounds that they were jointly and severally guaranteed in the instant agreement memorandum, S would take a preservative measure in the S business place, etc., and on March 19, 2014, S paid a total of KRW 420 million to the Defendants through the account of the law firm Sejong, designated by the Defendants ( KRW 21 million).

[Ground of recognition] Facts without dispute, Gap evidence 1 through 16, 18, 21 through 36, and Eul evidence 1 through 3 (provisional number omitted, hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination on this safety defense

A. Summary of the defendant F, etc. (excluding the defendant P)'s assertion

The Plaintiff’s text did not have a legitimate general assembly resolution while filing the instant lawsuit claiming a return of unjust enrichment against the Defendants, which is the cause of the instant lawsuit. Therefore, the instant lawsuit is unlawful.

B. Determination

In order to conduct litigation concerning the management and disposition of collective ownership, a resolution at a general meeting shall be required unless there are special circumstances, such as otherwise stipulated in the articles of incorporation (see, e.g., Supreme Court Decisions 98Da46600, Oct. 22, 199; 2004Da44971, Sept. 15, 2005; 2008Da20898, Nov. 27, 2008).

In full view of the purport of each of the statements and arguments in the instant case and Gap evidence Nos. 18, 23, and 27, the Plaintiff’s text sent a notice of the fact that on July 21, 2015, on August 8, 2015, the Defendants, including the Defendants, a notice of the fact that the Plaintiff, on August 8, 2015, shall hold an extraordinary general meeting on the three floors of the Daegu-gun U Center, Daegu-gun, U.S. on the agenda that the publication of the list of the list and the door of the list shall be an agenda item for the approval of the lawsuit. It is recognized that 13 persons, such as V, who directly attended the extraordinary general meeting held on August 8, 2015, and 84 persons, including W, who directly attended the general meeting, attended

According to the above facts, the procedures and requirements set forth in the rules of the Plaintiff’s literature shall be met and called up.

Since the general assembly made a resolution to confirm the procedural acts of this case on August 8, 2015 at the general assembly, the lawsuit of this case filed by the Plaintiff in the form of the Plaintiff is lawful. Therefore, the Defendants’ defense of principal safety is without merit.

3. Judgment on the merits

A. Summary of the plaintiff's assertion

(1) Since the property owned in the door belongs to the collective ownership of the class members of the class, its management and disposition shall be made by a resolution of the general meeting of the class members, unless otherwise stipulated by the regulations, and it shall be null and void unless there exists such resolution. Since the Plaintiff’s door did not receive the approval of the general meeting as a result of the extraordinary general meeting under Article 18(1) of the rules of the Plaintiff’s door, it is null and void in the instant agreement. The resolution of the general meeting of the class members different from the instant written agreement was made on January

(2) Therefore, the remaining Defendants except for Defendant B, etc. shall return 10 million won exceeding 10 million won, which were decided to be distributed in accordance with a new resolution. Even if the letter of agreement in this case is valid, 3 billion won out of the real estate purchase price shall be distributed based on 150 households, but in the event of increase or decrease, 8,875,739 won or 8,461,539 won per capita paid in excess shall be returned as unjust enrichment. (3) The four Defendants, including Defendant B, etc., are descendants within both homes, and are not entitled to receive a distribution of the purchase price of the land in this case, which is the property owned by the Plaintiff. Accordingly, the above Defendants shall return the total amount of KRW 20 million, which was distributed in accordance with the letter of agreement in this case, as unjust enrichment.

(4) Since the Plaintiff’s door acquired the above claim for return of unjust enrichment from the Plaintiff, the Defendants should return the unjust enrichment to the Plaintiff.

C. Determination on the meaning, validity, etc. of the letter of agreement in this case

(1) The meaning and validity of the letter of agreement in this case

First, in full view of the following: (a) the process of the instant case where the Daegu District Court 2013Kadan8702 Real Estate Disposition Prohibition and Provisional Disposition; and (b) the process of the preparation of the instant memorandum of Agreement, etc., the Plaintiff’s text appears to have reached an agreement with 22 members including the Defendants, on the premise that all 22 members including Defendant B, etc., at the time of December 20, 2013, including Defendant B, etc., are qualified as the gate, and thus, it is reasonable to view that the status of the Defendants as the gate member among the Plaintiff’s text and the Defendants as the premise or basis of the dispute, is not subject to mutual concession, and that there is no dispute.

Next, as seen in Section 1-D., the plaintiff's literature and the defendants prepared the letter of agreement in this case that "3 billion won shall be equally distributed based on 150 households among the members, but "the plaintiff's literature and the defendants shall grasp the actual condition of members in a fair and objective literature and shall comply with it if there is an increase or a decrease in the number of members in calculating 150 households by grasping the actual condition of members in a fair and objective literature." It is reasonable to view that the parties to the agreement in this case did not clearly determine the allocation standard of 3 billion won at the time of the agreement, and agreed provisionally on the premise that there is an increase or decrease in the number of households by grasping the actual condition of the members

Finally, as alleged in the plaintiff's text, distributing part of the sale price of the land of this case to the members of the 3rd class of the 5th class of the 5th class of the 5th class of the 19th class of the 5th class of the 5th class of the 5th class of the 5th class of the 5th class of the 5th class of the 5th class of the 5th class of the 5th class of the 5th class of the 5th class of the 5th class of the 5th class of the 5th class of the 5th class of the 5th class of the 5th class of the 5th class of the 5th class of the 5th class of the 5th class of the 5th class of the 5th class of the 1st class of the 5th class of the 1st class of the 5th class of the 1st class of the 1st class of the 2014 group of the 1st class of the 1st class of the 3th class of the 3th class of the 1000.

On the other hand, in the case of the plaintiff's provisional disposition, when the sale and purchase of the land of this case is highly likely to be held liable to the dispute resolution committee in accordance with the plaintiff's provisional disposition, the plaintiff's letter of agreement was prepared to distribute more amount than other door members than that of other door members, and thus, the agreement is invalid because it is in violation of good customs and other social order. However, in light of the overall progress, such as the preparation of the letter of agreement in this case from the sale and purchase of the land of this case and the contents of the resolution of the plaintiff's letter of agreement in this case, it is difficult to see that the plaintiff's letter of agreement in this case was in a poor state at the time of the agreement, and there is no other evidence supporting

(2) Determination as to the validity of the part against Defendant B, etc. among the written consent of this case

In light of the fact that the literature is naturally constituted, and it does not require any organizational act for its formation, and that the literature mainly takes the lead of the conduct of the joint shipbuilding, and that there exists a previous bilateral system in order to prevent some of the descendants of the joint shipbuilding from cutting down their own descendants, it shall not be deemed that they do not belong to the door in which they jointly set their son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s 5th son’s son’s son’s son’s son’s son’s 1 and son’s son’s 2.

Examining the above facts in light of the legal principles as seen earlier, it is reasonable to view that the effect of the letter of agreement in this case premised on the qualification as a literature member does not extend to four persons, including Defendant B, etc., since four persons, the descendants of both parties, etc., are not members of the Plaintiff’s door.

(3) Determination as to the validity of the remaining parts of the written agreement of this case against the Defendants

The Plaintiff’s door and the Defendants agreed to determine the number of households in a fair and objective manner. The Plaintiff’s door convened an extraordinary general meeting as of January 26, 2014 and discussed on the register and confirmation thereof from the above extraordinary general meeting. After the resolution of January 26, 2014, the number of the door members anticipated at the time of the conclusion of the above agreement exceeds much of the number of the door members anticipated at the time of the formation of the above agreement. In addition, the Plaintiff’s request for the distribution of the remaining members of the two house exceeds the number of the door members at the time of the preparation of the above agreement, and the Plaintiff’s request for the prohibition of payment to the LAS, a joint guarantor on March 15, 2014. However, if the Defendants did not distribute the purchase price, the Plaintiff’s door paid KRW 20 million to 22,00,000,000 to each of the Defendants, etc., and the Plaintiff’s door Nos. 21 through 35 and 818 of the remaining statement of the Plaintiff’s door.

According to the above facts, it is reasonable to view that the equal allocation of KRW 3 billion out of the purchase price of the land of this case is in accord with the purport of the settlement of door members by a fair and objective method, which is agreed upon by the parties at the time of the preparation of the letter of agreement, based on the remaining 206 households except for 13 households which are not contacted among the 219 households listed in the above letter of agreement.

Therefore, the reasonable amount of distribution to the remaining Defendants in accordance with the Plaintiff’s letter of agreement is KRW 14,563,106, respectively (3 billion: 206 households, less than KRW 206 households, and less than KRW 5,436,894). Therefore, the said letter of agreement shall be valid for the remaining Defendants and shall be null and void for each exceeding 5,436,894 won, respectively.

C. Judgment on the Plaintiff’s claim for restitution of unjust enrichment against the Defendants

(1) The act of a surety at the issue of return of unjust enrichment following the retroactive extinction of a principal obligation is premised on the existence of the principal obligation. As such, in a case where the principal obligation was not established at the time of the surety’s act of contributing to the principal obligation, or where the principal obligation was already extinguished or still remains effective due to the discharge of obligation by another person, the surety’s act of contributing to the principal obligation does not bring about a matter of return of unjust enrichment between the obligee and the obligee, and does not bring about a claim for reimbursement against the principal obligor (see Supreme Court Decision 2011Da62144, Feb. 23,

In this case, return to the case, the SS is the joint and several sureties of the plaintiff who is the principal debtor of distribution at the time. Of the written agreement of this case, the part concerning the four defendant B, etc. among the written agreement of this case is entirely null and void, and the remaining parts against the defendants are valid only for 14,563,106 won, and are null and void for 5,436,894 won in excess of the reasonable distribution amount. Accordingly, as the principal obligation becomes null and void in whole or in part, the repayment of the principal obligation of the SS is made in whole or in part, and there is a problem of return of unjust enrichment between the plaintiff S and the defendants.

(2) According to the purport of the Plaintiff’s right to claim restitution of unjust enrichment of KRW 19 and 20, respectively, and the entire pleadings, on June 2, 2014, S may recognize the fact that, under the Plaintiff’s text, “A” transferred the Plaintiff’s right to claim restitution of unjust enrichment of KRW 10,000,000 paid in excess of KRW 20,000,000, which was distributed to the Defendants on March 19, 2014, and then sent the notice to the Defendants on June 9, 2014, and around that time, the notice was delivered to the Defendants.

On the other hand, the principal party to the distribution relationship in accordance with the agreement of this case is the plaintiff's door and the Dispute Resolution Co., Ltd. is the joint and several sureties, and the funds distributed to the defendants are part of the purchase price of the land of this case that should be attributed to the original plaintiff's door. As seen earlier, four of the defendant B, etc. after the transfer of the above bonds are proved to be the descendants of both houses by the final and conclusive judgment of the related lawsuit, and the plaintiff's door explicitly expresses that the part for four of the defendant B, etc. among the written agreement of this case is null and void, since the plaintiff's four of the written agreement of this case is not qualified as the source of the plaintiff's door, while expanding the purport of the claim against four of the defendant B, etc. after the final and conclusive judgment of this case, the plaintiff's door explicitly expressed that the total amount of KRW 20 million

According to the above facts and circumstances, for the plaintiff's door, and for the defendant B and four others, the total amount of KRW 20 million distributed on March 19, 2014 from the Dispute Resolution Co., Ltd., and the remainder of the defendants are obligated to return the amount of KRW 5,436,894 in excess of the legitimate distribution amount as unjust enrichment, barring any special circumstance.

D. Determination as to the defendants' assertion

(1) When Defendant F, etc.’s attorney prepares the Plaintiff’s door and the Plaintiff’s letter of agreement and the instant letter of agreement, a contract was concluded between the third party, whose beneficiary is the said Defendants with respect to KRW 420 million out of the purchase price of the instant land. The said Defendants, the beneficiary, expressed their intent to make profits, and paid KRW 420 million from the Plaintiff’s settlement bank on March 20, 2014, thereby acquiring the said claim finally, and the Plaintiff’s door cannot be changed or extinguished, and thus, the Plaintiff’s claim for return of unjust enrichment in the Plaintiff’s door was made between the Plaintiff’s door and the Defendants. As seen earlier, the instant letter of agreement was merely guaranteeing the payment duty of the Plaintiff’s door, and thus, the allocation agreement based on the instant letter of agreement cannot be deemed as a contract for the third party.

Therefore, the aforementioned defense, which is premised on the premise that the allocation agreement based on the instant written agreement constitutes a contract for a third party, is no longer reasonable (in other words, the Plaintiff’s counter-defluence to the defense, namely, the conclusion of an agreement on the change or extinguishment of a third party’s right after the declaration of intention of profit, and the absence of compensation relation).

(2) The four defendants, including them, paid the agreed amount to the above defendants even though they were aware that they did not have an obligation to pay the agreed amount to the above defendants. Thus, the plaintiff asserts that the above defendants cannot seek the return thereof.

Article 742 of the Civil Act concerning repayment of non-debts applies to cases where the person performing the obligation knows that the person performing the obligation was not aware of the existence of such negligence, and the burden of proving that the person performing the obligation was aware of the absence of the obligation is on the part of denying the right to claim the return (see Supreme Court Decision 2010Da68237, Nov. 15, 2012).

In addition, there is no evidence to prove that the Dispute Resolution Co., Ltd. was not a debt. Rather, as seen earlier, not only the plaintiff's door but also four members, including defendant B, etc., who are the descendants in both the two houses, were mistakenly known to the plaintiff's door, and the shares may be increased or decreased depending on the number of households between the plaintiff's door and the defendants. Thus, the above defendants' assertion that the Dispute Resolution Co., Ltd.'s payment of shares to the defendants constitutes a malicious debt repayment is without merit.

(3) Four parties, including Defendant B, asserted that the payment of the agreed amount to the said Defendants is non-debted in conformity with the concept of the Do, and that the Plaintiff cannot seek the return thereof from the said Defendants.

The payment of the share of KRW 20 million to the above Defendants is due to the fact that the above Defendants had mistakenly known that they are entitled to exercise their right as collective investors of the land of this case as Plaintiff Seo Jung-gu, and the Defendants are not obligated to pay the amount equivalent to the agreed amount to the above Defendants regardless of the terms of the contract. Thus, it is not appropriate to hold the share paid by the Dispute Resolution Co., Ltd. as it is is in accord with the concept of intention. Thus, this part of the Defendants’ assertion is without merit.

E. Sub-decision

Ultimately, with respect to the Plaintiff’s literature, the Defendants B, C, D, and E are obligated to pay 5% interest per annum from March 20, 2014 to October 7, 2014, the date of delivery of a copy of the instant complaint, which is the date of distribution, to October 7, 2014; 20% per annum from the next day to September 30, 2015; 15% per annum from the next day to the date of full payment; 20% interest per annum from March 20, 2014 to the date of full payment; 3% interest per annum from March 20, 2014 to the date of delivery of a copy of the instant claim; and 5% interest per annum from the date of delivery of a copy of the instant claim and the cause of claim to the date of full payment; and 15% interest per annum from the date of delivery to the date of full payment; 25% interest per annum from the date of each of the Defendants’ respective 15% interest per annum and 24.

5. Conclusion

Therefore, the claims against four defendants, including the defendant B, etc. in the plaintiff's literature shall be accepted in its entirety on the ground of its reasoning. The remaining claims against the defendants shall be accepted only within the scope of the above recognition, and the remaining parts shall be dismissed as they are without merit. It is so decided as per Disposition.

The judges of the presiding judge;

Judges Maintenance Award

Judges Park Jong-young

1) Of the damages for delay referred to in Section 1-A(a) of the amended claims for the purpose of claim and for modification of the cause of claim as of October 2015, 2015:

From the date of September 30, 2015 to September 30, 2015, it is clear that the entry of ‘10,000,000 won' in the calendar is an error.

2) The "certification" under Article 13 of the above Code is deemed to be a clerical error in the recognition.

3) On January 31, 2014, deeming it as a clerical error in writing.

4) Although Defendant F et al.’s attorney indicated this part of the claim as “principal safety defense,” the content of the claim is examined by the Plaintiff.

It is reasonable to see that it is a defense on the merits since it is not a claim on the nature of the right to claim restitution of unjust enrichment.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.