2013Cat 5731 Service Costs

A

B Regional Housing Association

August 20, 2014

October 22, 2014

1. The defendant shall pay to the plaintiff 300,000,000 won with 20% interest per annum from August 29, 2013 to the day of complete payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Facts of recognition;

A. The Defendant is a regional housing association consisting of approximately 348 members, which was established for the construction project of an apartment in the area of a regional housing association in the area of 1387 square meters (hereinafter referred to as the “instant land”) of Yansan-gu Seoul Special Metropolitan City, Jeonju-si and 13912.7 square meters in D, 1381.7 square meters in size (hereinafter referred to as “the instant land”).

B. Around January 29, 2008, Jeonju-si completed each registration of preservation of ownership on the instant land based on an urban development project, and around 2009, F Co., Ltd. (hereinafter “F”) concluded a sales contract on the instant land with Jeonju-si in order to carry out a development project that newly constructs approximately 480 households of main multi-purpose apartments (hereinafter “instant project”) on the instant land, and paid the down payment at the time of Jeonju-si under the said contract, but thereafter, did not pay the balance of the purchase and sale due to financial difficulties.

C. On March 23, 2011, the Plaintiff and G (hereinafter referred to as “Plaintiff, etc.”) entered into a real estate services agreement (hereinafter referred to as “the instant services agreement”) with the Defendant’s home-based association (as long as the representative was established after H and the Defendant succeeded to all the rights and obligations of the said association after the establishment of H and the Defendant, the said association and the Defendant deemed to be substantially the same and the Defendant; hereinafter referred to as “Defendant”) whose main contents are as follows:

Article 2 (Service Object and Service Contents) The defendant shall request the plaintiff, etc. to provide the following services, and the plaintiff, etc. shall accept them.The content of the service object of this case shall be the sale and purchase of the land of this case and the total amount of the contract completion under the contract for transfer and acquisition of business rights and the contract for acquisition of the land of this case (the service amount and payment method): The contract amount of KRW 400,000,000 per day (including the amount of KRW 400,000,000): The contract amount of KRW 15,000 per day (including the amount of KRW 100,000,000) shall be paid on April 15, 201.The remaining amount shall be paid at KRW 30,000,000 (30,000,000).The purchase price of the land of this case shall be the sale contract for the land of this case under the contract with F, which is the right holder of purchase, and the contract amount of the land of this case shall be paid by the defendant.

D. On March 23, 2011, the Defendant acquired all the rights to the instant project (hereinafter referred to as “instant business right”) of F and F engaged in the instant land (hereinafter referred to as “F and K”) and the Defendant entered into a contract for transfer of business rights (hereinafter referred to as “transfer of business rights”) with F and F to pay the full amount and arrears of the purchase price to be paid by F and P in accordance with the sales contract entered into between F and Jeonju as to the instant land on behalf of the Defendant and transfer ownership in the future of the Defendant. However, in return for the transfer of the instant business rights, the Defendant paid KRW 2 billion (contract amount, KRW 500,500,000,000) to F in return for the transfer of the instant business rights, and I concluded a contract for transfer of business rights (hereinafter referred to as “transfer of business rights”).

E. On March 23, 2011, in order to carry out the apartment construction project of the regional housing association (hereinafter “project of the regional housing association of this case”) in the instant land, the Defendant entered into an implementation agency contract with I and the Defendant (hereinafter “instant implementation agency contract”) under which I and the Defendant delegated I with all tasks related to the purchase of land, the promotion of sale, the overall management and matters related to the authorization and permission, and all other tasks, decisions, etc. for the implementation of the said project (hereinafter “instant implementation agency contract”).

F. Under the instant service contract, the Defendant paid the Plaintiff, etc. KRW 50 million around April 27, 201, and KRW 100 million on May 11, 201, via an international trust company, via the instant international trust service contract.

G. On June 30, 201, the Defendant paid KRW 10,563,116,960 to the purchase and sale of the instant land as of June 30, 201, and on June 30, 2011, the registration of ownership transfer was completed in F in the Jeonju City on the same day.

H. On August 21, 2013, the Plaintiff acquired from G to the Defendant the claim amounting to KRW 150,000,000 equivalent to G’s 1/2 shares out of the claim amounting to KRW 300,000,000 under the instant service contract against the Plaintiff, etc., and G notified the Defendant of the assignment of the claim at that time.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, Eul evidence Nos. 1 through 4, and 6 through 9 (including each number in case where there are two numbers), the witness J's testimony, and the purport of the whole pleadings

2. The party's assertion and judgment as to it

A. The parties' assertion

1) Plaintiff

The plaintiff et al. introduced I, the representative director of FF who was unable to normally carry out the project of this case due to financial difficulties, and introduced I to the regional housing association the project of this case by establishing the regional housing association and I, and proposed the method of converting the project of this case into the project of the regional housing association by purchasing the land from the former city at the former city. The service contract of this case constitutes a contract under which the plaintiff et al. agreed to receive a certain amount in return for cooperation to promote the project of the regional housing association of this case in the same manner as the plaintiff et al. in fact, and the defendant was established as the regional housing association due to the above work of the plaintiff et al.

As long as the ownership of the instant land was transferred to the Defendant as a result of the previous purchase of the instant land in the position of a new purchaser through Jeonju and negotiations, the Plaintiff et al. fulfilled all obligations under the instant service agreement. As such, the Defendant is obligated to pay to the Plaintiff the remainder of KRW 300,000,000 after deducting the service cost of KRW 100,000,000 paid out of the service cost of KRW 400,000 under the instant service agreement.

2) Defendant

After the Defendant entered into a contract on the transfer of the instant business right with F and the acquisition of the instant business right, the ownership transfer registration was completed in the future of the Defendant after acquiring the F’s land purchaser status in the instant land. However, the Plaintiff et al. performed the instant service obligation without the Plaintiff et al.’s aid. Even if the Plaintiff et al. performed the instant service obligation under the instant service agreement, the core of the instant service agreement is that the Plaintiff et al. arranged or arranged the purchase of the instant land from the entire owner of the instant land and received the payment for such purchase. The instant service agreement constitutes a real estate brokerage fee agreement in substance, and the instant service agreement entered into with the Plaintiff et al. without the registration of establishment of the brokerage office without the qualification of a licensed real estate agent is null and void as it violates the Act on Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions, which is a mandatory law.

B. Determination

1) First, as to whether the Plaintiff performed the instant service obligation under the instant service agreement, the following circumstances are acknowledged by comprehensively taking into account the foregoing facts recognized, the evidence and the purport of the entire pleadings, i.e., the F’s representative director, as follows: (i) the F’s representative director is unable to pay the purchase and sale balance of the instant land at the time of transfer from this court to the fund.

The plaintiff et al. proposed that the plaintiff be converted into a local housing project, and introduced K and examined the feasibility of establishing a local housing association with the plaintiff et al. as well as the above K. The plaintiff et al. stated that the plaintiff et al. conducted an advice on the feasibility of the above local housing project through the process of review of feasibility of the project and the process of transferring and acquiring the right of association members, and that the service contract of this case was prepared by F and I to pay KRW 100 million to the plaintiff et al., and that the defendant shall pay KRW 400 million. Among the regional housing association of this case, the statement of Llphonenet belonging to the slphonenet, which the plaintiff et al. entrusted with the business of this case, was also consistent with J's above statement. ② The contract of this case and the transfer and acquisition contract of this case and the execution contract of this case were concluded on March 23, 201 with the local housing association of this case, which was the plaintiff et al. to purchase the land of this case through the local housing association of this case.

As the Defendant asserts, if the Plaintiff et al. arranged or mediates the purchase of the instant land from the Jeonju City, it is difficult for the Defendant to conclude the instant service contract with the Plaintiff et al. separate from the execution agent of the instant land purchase contract and the transfer of ownership in the name of the Defendant under the implementation agent contract of the instant case, and to find reasonable grounds for the Plaintiff et al. to pay KRW 100 million to the Plaintiff et al., in view of the fact that the instant service contract is substantially difficult, by establishing the Defendant et al., a regional housing association, and acquiring the instant business right from F, and acquiring ownership from F, by acquiring the instant land from the Jeonju City, the Plaintiff et al., to cooperate in the transfer of ownership. The Defendant agreed to pay the price for the instant land to the Plaintiff et al... as the Plaintiff et al., a regional housing association for performing the said duties. Accordingly, it is reasonable to deem that the Plaintiff et al. fulfilled all the Defendant’s obligations under the instant service contract.

2) Next, as to whether the instant service contract is invalid in violation of the Act on the Business of Public Personnel Brokerage and Report of Real Estate Transactions, which is a mandatory law, with a payment agreement of actual brokerage commission, as seen earlier, the instant service contract is practically a business that the Plaintiff et al. established and cooperates in promoting the instant business that F had run on the instant land by converting the instant business that F had been run on the instant land into a business of a regional housing association, and constitutes an agreement that the Defendant pays the Plaintiff et al. for the payment of the price. As such, it is reasonable to view that such agreement does not constitute a real estate brokerage commission agreement claimed by the Defendant, and thus, it is a line

This part of the Defendant’s assertion is without merit to examine the invalidity of the remaining service contract of this case.

C. Sub-committee

Therefore, the Defendant is obligated to pay to the Plaintiff the remainder of 300,000,000 won for service costs under the instant service contract and damages for delay calculated at the rate of 20% per annum from August 29, 2013 to the day of full payment, as the day following the delivery date of a copy of the instant complaint, as the Plaintiff seeks.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.

Judges Park Jong-chul

Judges Jeong-ho

Judges Manyang-si