2014 Gohap6916 Compensation, etc.

1. A;

2. B

1. C

2.D

3.E

4.F

May 21, 2015

June 18, 2015

1. Defendant C and D jointly pay 46,50,000 won to Plaintiff A as well as 5% per annum from September 19, 2006 to September 15, 2014; and 20% per annum from the next day to the day of complete payment.

2. Defendant D shall pay to Plaintiff B 56,00,000 won with 55% per annum from March 14, 2006 to September 15, 2014; and 20% per annum from the next day to the day of full payment.

3. The plaintiffs' respective claims against defendant E and F are dismissed.

4. Of the costs of lawsuit, the part arising between the Plaintiff A and the Defendant C and D shall be borne by the said Defendants. The part arising between the Plaintiff A and the Defendant E and F shall be borne by the said Plaintiff. The part arising between the Plaintiff B and the Defendant D shall be borne by the said Defendant, and the part arising between Plaintiff B, Defendant E and F shall be borne by the said Plaintiff

5. The above paragraphs 1 and 2 can be provisionally executed.

Defendant C, D, and E jointly and severally pay to Plaintiff A the amount set forth in paragraph (1) of this Article, and Defendant D, and E jointly and severally pay to Plaintiff B the amount set forth in paragraph (2) of this Article. The contract between Defendant D, E, and Defendant F, on August 21, 2009, and on donation of KRW 90,000,000 on August 28, 2009, and on donation of KRW 23,000,000 on August 28, 2009, respectively. Defendant F shall pay to the Plaintiff KRW 46,50,000, KRW 56,000,00 to the Plaintiff, and each of the above amounts at a rate of 5% per annum from the date of this decision to the date of full payment.

1. Facts of recognition;

A. Defendant C is a person operating “H” in Gwanak-gu in Seoul Special Metropolitan City, and Defendant D is a person operating “J” in Seoul Nowon-gu, Seoul Special Metropolitan City, from October 2003 to D 2007, and Defendant E is Defendant D’s wife, and Defendant F is Defendant D and E’s children.

B. Defendant C and D around March 7, 2006: (a) around March 7, 2006, the Plaintiff Company B “WM” (hereinafter “WM”).

The purpose of this paper is to make a new apartment construction project in the Dongjak-gu Seoul Metropolitan Government in the form of a local housing association. Since the executor completed the purchase of land by 72% in the project site, it is possible to move into an apartment house in the second half of 2008 and the first half of 2009, and even if it is sold without being sold in lots, it is possible to obtain a profit from the market price of at least a number of million won per one unit, so it is difficult to say that L Regional Housing Association (hereinafter referred to as the "Association of this case") is "the purchase of a certificate of subscription to the Housing Association" to the effect that it is difficult to obtain a total of KRW 56,00,000 from B to March 8, 206, it was received from the Plaintiff as a member of the Association from the Plaintiff in the name of the purchase price certificate of membership from the Plaintiff from August 2006 to the Plaintiff from September 19, 2006.

C. However, the fact was that Defendant C and D began to build new apartment units, which were written to the Plaintiffs, around October 2006, there was no particular progress, including the completion of land purchase work until around October 2006. On June 25, 2004, the Seoul Dongjak-gu Seoul Metropolitan Government was already designated and publicly announced as a zone to be rearranged in accordance with the Nan District Housing Redevelopment Master Plan, and the Nan District Housing Redevelopment Improvement Project Promotion Committee was approved by the head of Dongjak-gu, Seoul around November 22, 2004 (the establishment of an association was approved) and the Mayor of Seoul Metropolitan Government designated the above area as a rearrangement zone for the housing redevelopment project around August 24, 2006. Since the housing redevelopment project under the Urban and Residential Environment Improvement Act and the housing redevelopment project under Article 4(3) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents was not implemented within 200 years after the Defendants claimed the designation of the rearrangement zone as a rearrangement zone in the above 20-year zone.

There was no fact.

[Reasons for Recognition]

O Plaintiffs and Defendant C: Facts that there is no dispute

O Plaintiffs and Defendant D, E, and F: Unsured facts, entry in Gap evidence Nos. 1, 4, 9 through 17 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings.

2. Determination as to each claim against Defendant C and D

A. Determination on the cause of the claim

According to the above facts, Defendant C and D obtained an aggregate of KRW 46,50,000 from Plaintiff A as the purchase price in the certificate of membership by deceiving the Plaintiffs as if they were able to acquire an apartment house even if they had already been designated as a district subject to redevelopment and rearrangement zone for the same area, and even if they acquired the certificate of membership, it is unclear whether they would be able to purchase an apartment house, and even if they were to purchase a newly-built apartment membership certificate, they could immediately move into an apartment if they were acquired only the certificate of membership and can obtain a large profit from the sale of the certificate of membership. Accordingly, Defendant C and D, a joint tortfeasor, jointly, obtained the rate of KRW 46,50,000 from Plaintiff A as the purchase price in the certificate of membership, and acquired it at the rate of KRW 56,00,000 from the next day to the date of tort, and finally, from September 19, 206 to September 25, 2006, the copy of the complaint provided for in the Civil Act.

56,00,000 won on the basis of the damages, and the last amount, after the date on which the money was acquired through deception, the above Plaintiff is obligated to pay 5% per annum from March 14, 2006 to September 15, 2014, and 20% per annum from the next day to the date on which the full payment is made.

B. Determination as to Defendant D’s assertion

1) Defendant D’s assertion

There was no statement from the plaintiffs such as "NM," 72% of the land purchase," or "it is possible to move into an apartment house within 2-3 years." Defendant D merely introduced the plaintiffs to Defendant C, and did not receive the purchase price of subscription certificates from the plaintiffs. In addition, even if the instant association is not authorized or the project site of the instant association was designated and publicly notified as a housing redevelopment improvement zone, it is not impossible to operate a housing association project in the method of a regional housing association within the said project site, and in fact the said redevelopment association establishment promotion committee was dissolved on February 16, 2012. Thus, it was known that the instant project site is sufficient to implement the regional housing association project in the way of the regional housing association, and there was no intent to deceive the plaintiffs only by mediating the trade of association membership certificates, but did not intend to deceive the plaintiffs.

2) Determination

A) In full view of the overall purport of the pleadings, the following facts can be acknowledged in the statements in Gap evidence Nos. 4, 9, and 17.

(1) On September 7, 2006, Defendant D drafted a receipt stating the Plaintiff’s “0 association membership fee of KRW 15,000,000,000” to the Plaintiff, and the Plaintiff A remitted KRW 31,50,000 out of the amount of the union membership certificate to the Defendant D’s account on September 13, 2006.

(2) P on March 21, 2012, the Defendant C, and D, by deceiving P in the same manner as described in the foregoing paragraph (a).

On September 11, 2013, the first instance court rendered a judgment that accepted both P's claim for damages against P's Defendant D on the ground that "the money in the name of the purchase price of a member's subscription document was acquired through deception (Seoul Central District Court 2012Da69874)," and the first instance court rendered a judgment that accepted both claim for damages against P's Defendant D (the first instance judgment was appealed by Defendant D and the conciliation was concluded in the appellate court).

(3) From the criminal case against Defendant C (Seoul Central District Court Decision 201Da670, 7439), Defendant D appeared as a witness on May 23, 2012, and explained the project of the instant regional housing association to Q and R, which is an applicant for the purchase of membership certificates, along with Defendant C. Second, the Plaintiff B explained to the effect that the monthly IM, which is the implementer of the instant project, has secured a substantial portion of the instant project site. At the time, the primary explanation was the witness (Defendant D). A broker for the purchase of membership certificates to the Plaintiff B was the witness. A broker for the purchase of membership certificates was the remainder of the amount of KRW 40 million.

(4) On June 13, 2014, Defendant D, in collusion with Defendant C, etc. on November 1, 2005 and around August 6, 2006, acquired money in the name of the member subscription document by deceiving S, T, and P in collusion with Defendant C, etc. in the manner described in the above paragraph (a). The judgment was finalized on October 24, 2014, and was finalized on October 24, 2014.

B) Comprehensively taking account of the above facts of recognition, Defendant D could be recognized as deceiving the Plaintiffs along with Defendant C, and acquired money from the Plaintiffs in the name of the purchase price of the association membership certificates, and it is insufficient to reverse this only by the entries of evidence Nos. 6 through 35. Thus, the above assertion by Defendant D is without merit.

3. Determination as to the claim against Defendant E

A. Judgment on the claim for damages caused by a tort

1) Grounds for claim

Defendant E, as described in the above 2.2. paragraph, knew of the fact that Defendant C and D deceiving the Plaintiffs and acquired money, and aided and abetted Defendant C and D’s tort by transferring or keeping the money acquired by Defendant D to the bank account in the name of Defendant E. Therefore, Defendant E is jointly and severally liable with Defendant C and D for compensation for damages incurred by the tort, and damages for delay against the said money.

2) Determination

It is not sufficient to recognize that Defendant E had aided and aided money by deceiving the plaintiffs as stated in the above 2. paragraph, and there is no other evidence to support this. Thus, this part of the plaintiffs' claim is without merit.

B. Determination on the claim for return of unjust enrichment due to the cancellation of a sales contract

1) Grounds for claim

The Plaintiffs concluded each purchase and sale contract with Defendant C, D, E on membership certificates, and paid the purchase price to the said Defendants. Each of the above purchase and sale contracts was concluded by deception of the said Defendants, and the Plaintiffs expressed their intent to cancel each of the above purchase and sale contracts by delivery of a copy of the complaint of this case. As such, Defendant E is jointly and severally liable with Defendant C and D to pay the Plaintiff the purchase price of KRW 46,50,000, the purchase price of KRW 56,000,000, and delay damages for each of the above money.

2) Determination

The reasoning of the evidence Nos. 5 through 8 is insufficient to acknowledge that Defendant E concluded each sales contract with Defendant C and D on the admission certificate and received each purchase price, and there is no other evidence to support this. Thus, the Plaintiffs’ claim for this part is without merit.

4. Determination as to the claim against Defendant F

(a) Claim for revocation of fraudulent act and restitution to original state;

1) Grounds for claim

Defendant D and E conveyed to Defendant F the amount of KRW 90,00,000 on August 21, 2009, and KRW 23,000,000 on August 28, 2009, respectively. Each of the above gift agreements is a fraudulent act detrimental to the Plaintiffs, who are creditors holding a claim for damages arising from a tort and a claim for return of unjust enrichment against Defendant D and E, and thus, seek its revocation and restitution.

2) Determination

A) Determination as to revocation of fraudulent act and claim for restitution to preserve the claim against Defendant E

As seen earlier, the plaintiffs did not have the right to claim for damages and the right to claim for restitution of unjust enrichment against the defendant E. Therefore, this part of the plaintiffs' claim is without merit without further review of the remaining points.

B) Determination as to revocation of fraudulent act and claim for restitution to preserve the claim against Defendant D

According to the statements in Gap evidence Nos. 2, 3, and Eul evidence Nos. 1, the defendant F shall do so on August 18, 2009.

The fact that the registration of ownership transfer was completed on July 16, 2009 with respect to U apartment 101 Dong 1401 (hereinafter referred to as the " apartment of this case"), the purchase price of the above sale contract is KRW 124,70,000, and the purchase price of the above sale contract is KRW 90,000,000 from the defendant E Bank Account (Account Number V) to the account of the deceased in name, respectively, and the substitute payment was made on August 28, 2009 to the account of the deceased in name, and the amount of each of the above passbook transactions was stated as the "amount of the above passbook transactions", the "amount of the above passbook transactions", and the "amount of the name in name in the left-hand side", but each of the above facts alone is insufficient to recognize that the above donations was made to the defendant D, and there is no other evidence to support the remaining part of the plaintiffs' claims for this portion without any reason.

(b) A request for return of unjust enrichment caused by invalidity of a title trust agreement;

1) Grounds for claim

When Defendant D decided to purchase the instant apartment, it provided KRW 124,70,000 for the apartment purchase fund to Defendant F, who is a title trustee of the instant apartment, after having agreed to trust the name of the said apartment. Defendant F entered into a sales contract to purchase the instant apartment from W on July 16, 2009 and completed the registration of ownership transfer pursuant to Article 4(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”). Nevertheless, the title trust agreement between Defendant D and Defendant F was null and void pursuant to Article 4(2) of the same Act, and thus, Defendant F finally acquired the ownership of the said apartment. Ultimately, due to the invalidation of the above title trust agreement, Defendant F, a title trustee of the instant apartment, obtained profits equivalent to the purchase fund provided by Defendant D from Defendant D, and thereby, Defendant F, a title truster, was obligated to pay the amount equivalent to the amount of unjust enrichment to Defendant DF’s 100,000 won.

The Plaintiffs seek the payment of the above unjust enrichment to Defendant F by subrogation of Defendant D in order to preserve it as a creditor against Defendant D.

2) Determination

The written evidence evidence Nos. 2, 3, 18, and 1, 2 is insufficient to acknowledge that Defendant D entered into a title trust agreement with Defendant F on the apartment of this case and paid the purchase fund to Defendant F. The Plaintiffs’ claim for this part is without merit.

5. Conclusion

Therefore, each claim against the defendant C and D and the claim against the defendant D by the plaintiff Eul is accepted on the grounds of merit, and each claim against the defendant E and F is dismissed on the grounds of merit. It is so decided as per Disposition.

Judge Lee Jong-chul

Judges Ha Sung-woo

Judge Maximum United States;