(영문) 창원지방법원 마산지원 2017. 11. 22. 선고 2017가합100369 제1민사부 판결

The defendant shall pay to the plaintiffs 1 15% interest per annum with respect to each corresponding amount and each of the above amounts stated in the table of claim amount in attached Form 1, from the day following the day of service of a copy of the complaint of this case to the day of complete payment.

Reasons

1. Basic facts

A. (1) (tentatively, the regional housing association promotion committee (hereinafter referred to as the “promotion committee”) was established on March 2016 in order to promote the project (hereinafter referred to as the “project in this case”) that newly constructs the apartment of the regional housing association with the first floor, the 25th floor above ground, the 1,157 generation underground (hereinafter referred to as the “instant apartment”) in the area of the Masan-si, the Masan-si, and the lot of land (hereinafter referred to as the “project site”).

2) On April 2016, the Promotion Committee concluded each of the administrative service contracts and fund management agency contracts with respect to the instant project; thereafter, the Housing Promotion Center opened the Housing Promotion Center and recruited its members by distributing the leaflets; and around July 27, 2016, the Defendant held an inaugural general meeting.

3) The Defendant is an unincorporated association composed of non-corporate members recruited for the instant project, and was not authorized to establish the association from the competent authority until the date of closing argument in the instant case (the Defendant appears to have succeeded to the rights and obligations of the promoters’ meeting as a resolution to confirm the duties performed by the promotion committee at the Defendant-Appellant Association was adopted, and therefore, the Defendant did not distinguish between the promotion committee and the Defendant.)

B. From June 10, 2016 to November 9, 2016, the Plaintiffs entered into a contract with the Defendant to enter into a regional housing association (hereinafter “each of the instant contracts”) with the Defendant (hereinafter “each of the instant contracts”), and paid each of the money equivalent to the amount indicated in the column for claim amount in the attached Table 1 among the members’ contributions, under the name of contract deposit, etc. among the members’ contributions.

C. Part of the project site of this case is a collective community district designated as a Class-I general residential area as a Class-I general residential area after being released from a development-restricted zone around 2005, and part of the project site is a natural green area released by the Minister of Land, Transport and Maritime Affairs from a development-restricted zone for the creation of a 'self-sufficient complex administrative complex development project site development' in the Ministry of Land, Transport and Maritime Affairs around July

D. On May 4, 2016, Changwon-si sent the Defendant’s opinion that the instant project site is not a specific use area that can be constructed by the Defendant’s promoters, and that the Defendant’s project is not a public development method, and thus, the Defendant’s project would not be promoted. On the 12th of the same month, the Defendant requested the suspension of the instant project. On June 10, 2016, the Defendant notified the Defendant that “In accordance with relevant Acts and subordinate statutes, it is impossible to construct an apartment in the instant project site, and it is impossible for the private sector to independently operate the development project.”

E. Meanwhile, on May 11, 2017, the Defendant held an extraordinary general meeting and discussed whether to continue the instant project. The minutes of the extraordinary general meeting include the fact that the resolution was made to continue the instant project.

【Fact-finding without a dispute over the basis of recognition】 Each entry in Gap’s evidence 1 through 9, 13, 14, 17, sound evidence 7 and 9 (including each number if there is no number different from each other; hereinafter the same shall apply), and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs' assertion

(1) invalid contract due to original impossibility and claim for restitution of unjust enrichment

The instant project site is a Class 1 general residential area and natural green area, which cannot be constructed as an apartment. According to the “Guidelines for the Establishment of Urban/Gun Management Plans”, it is impossible for the instant project site to change the specific use area of the instant project site to allow the construction of apartment, and according to the “Guidelines for the Establishment of Development Plans to Change Urban/Gun Management Plans for the Adjustment of the Development Restriction Areas,” the Defendant may not independently promote the development project of the instant project site. Therefore, each of the instant contracts is null and void as it aims to provide benefits which are impossible in a timely fashion, and thus, the Defendant is obligated to return the amount

2) Revocation of a contract based on fraud or mistake and claim for restitution of unjust enrichment

Although the Defendant knew at the time of entering into each of the instant contracts that it was impossible to construct an apartment in the instant project site, as if it was possible to conceal such fact and build an Amphate in the instant project site. As such, the Plaintiffs were to enter into each of the instant contracts by deceiving the Defendant from the Defendant or causing mistake in an important part of the legal act, and thus, they were to cancel each of the instant contracts on the ground of fraud or mistake and seek the return of the money paid to the Defendant.

3) Claim for the refund of contributions to members under the agreement

The Defendant agreed to the Plaintiffs that “where the Defendant did not obtain authorization to establish an association by April 30, 2017, the Plaintiffs would refund the full amount of the contributions paid by the Plaintiffs (including business promotion expenses).” Since the Defendant did not obtain authorization to establish an association from the original market by April 30, 2017, the Defendant is obligated to refund the full amount of contributions paid by the Plaintiffs to the Plaintiffs according to the aforementioned agreement.

B. Defendant’s assertion

1) The guidelines for formulating an urban and Gun management plan and guidelines for formulating an urban and Gun management plan to adjust development-restricted areas are only administrative guidelines, and thus, the instant project cannot be deemed as an original impossibility. Even if based on the guidelines for formulating an urban and Gun management plan, the instant project site is an area where it is possible to construct apartments through the alteration of a specific use area. The guidelines for formulating an urban management plan to adjust development-restricted areas are not applicable to the instant project site.

2) Each of the instant contracts is not simply a collective housing supply agreement between the Plaintiffs and the Defendant, but all the members of the instant association constituted an association to jointly carry out the instant project. Thus, even if it is impossible to construct apartment in the instant project site, each of the instant contracts does not become null and void since the Defendant’s performance of the obligation is an original impossibility.

3) The Plaintiffs are expected to obtain high-profit profits with knowledge of the fact that it is not easy to implement the specific use area of the instant project site and the instant project, and they concluded each of the instant contracts. Therefore, the Defendant did not mislead or cause mistake to the Plaintiffs.

4) If the instant project is an original impossibility of performing the Defendant’s obligation, and each of the instant contracts concluded between the Defendant and the Plaintiffs are null and void for the same reason, the agreement between the other union members and the Defendant is null and void. As such, the Defendant has no substance as a non-corporate association, and the Plaintiffs’ lawsuit against such Defendant is unlawful.

5) The Plaintiffs’ claim against the Defendant for the return of the contribution is related to the portion of the partnership’s property. Therefore, a resolution of the general meeting of partners is required.

3. Determination

A. Determination on the assertion that a contract is null and void due to an original impossibility

1) The plaintiffs, ① a specific use area of the project site of this case is a Class 1 general residential area and natural green belt area in the project site of this case. According to the relevant laws and regulations, it is impossible to construct an apartment building in the project site of this case. ② Part of the project site of this case is a collective development district released from the development restriction zone around July 2005, and part of the project site of this case is an area released from the development restriction zone around July 2009, according to the "Guidelines for the Establishment of Urban and Gun Management Plans" 3-1-83, it is impossible to change the project site of this case so that an apartment can be constructed. ③ The development guidelines for the alteration of the urban management zone for the adjustment of the development restriction zone of this case is the area where the private business operator is unable to independently carry out the project, and ④ in the Chang city, it is argued that the project of this case is an original impossible project of this case.

2) Therefore, there is no dispute between the parties as to the fact that it is impossible to construct the instant apartment in the instant project site by the method of a regional housing association in the present project site without any change in the specific use area due to the statutory restrictions, etc.

However, there is a need for administrative procedures to change the specific use area of the instant project site to Class 1 general residential area and Class 2 general residential area in the “business plan” part of the “business plan for Defendant’s inaugural general residential area” as well as the content that the use area of the instant project site to Class 1 general residential area and the natural green area might have been easily changed. ② At the time of entering into each of the instant contracts with the Defendant, the Plaintiffs had already shown the possibility of the instant project between the Defendant and Changwon-si, and had the view that the instant project would have been possible if the Defendant had changed its use area, etc., it appears that these contents were known through media, ③ in the case of the regional housing association, it would be difficult for the Plaintiffs to have known that each of the instant contracts would have been impossible to change the specific use area, and to promote the apartment complex construction project in the future by considering the fact that the specific use area of the instant project site would have been changed to be suitable for the construction of the instant apartment site.

Therefore, whether the purpose of each of the contracts of this case is an original impossibility or not shall be determined based on the time of concluding each of the contracts of this case with the plaintiffs, and it shall be determined based on whether the construction of the apartment of this case in the project site of this case cannot be expected in light of social norms or social trade norms.

3) The determination of whether a contract was originally impossible is not limited to physical impossibility, but should be made based on social norms or trade norms. However, the mere fact that the content of the map was in violation of the prohibition prescribed by Act and was illegal does not necessarily mean that the contract was originally impossible from the point of time to the point of time in view of social norms or the concept of private conference transaction (see Supreme Court Decision 2010Da41294, Oct. 14, 2010).

In light of the above legal principles, it seems that the business of this case has been delayed due to various problems, such as statutory restrictions, etc. from the beginning of the business to the present time. However, even if considering the current status of the business of this case, the business of this case is deemed to have undergone considerable disruptions. In full view of the circumstances such as the various types of statements and arguments as to Gap's evidence Nos. 1, 14, and Eul's evidence Nos. 1 through 9, and the whole purport of oral arguments, it is difficult to view the business of this case as an original impossibility solely with the reasons alleged by the plaintiffs and the evidence submitted by the plaintiffs.

① As seen earlier, at the time of entering into each of the instant contracts, the Plaintiffs seems to have known or could have known that administrative procedures for the alteration, etc. of specific use areas were necessary to construct the instant apartment in the instant project site.

② According to Article 3-1-1-8 (2) of the Act on Guidelines for the Establishment of Urban or Gun Management Plans, in a case where a collective development area is adjacent to an existing market area (residential area, commercial area, industrial area), or major base facilities (airport, port, railroad station), and there is a demand for land use such as commerce, industry, etc., a special-purpose area of a residential area, neighboring commercial area, or quasi-industrial area may be granted. Thus, even if some of the construction sites of this case is a zone subject to the cancellation of collective development and the scale of collective development is less than 30 units at the time of the cancellation of a development restriction zone, it is difficult to view that the special-purpose area is not likely to be changed to be suitable for the construction

③ According to the 3-5-1 guidelines for formulating an urban management plan to adjust development restriction zones, the Defendant appears to have difficulty in promoting the instant project solely by himself in the natural green area released from the development restriction zone for the “development of a self-sufficient complex administrative complex” among the instant project sites. However, even after the lapse of at least eight years from July 2009, the time when the said land was released from the development restriction zone, the development restriction zone was likely to modify the project of a self-sufficient complex development project as it did not proceed as the initial plan, and the said development guidelines are merely internal guidelines of the administrative agency, and the Defendant is seeking to change the method of operating the project in the direction consistent with the above development restriction guidelines. In light of the above, it is difficult to deem that the instant project is in a state of original impossibility solely on account of the existence of circumstances contrary to the above development restriction guidelines.

④ Although the original market requested the Defendant to “the suspension of this project because it is impossible to grant authorization to establish an association or approve a housing construction project,” it is still presented by the administrative agency’s opinion before the Defendant applies for authorization to establish an association and approval to establish an association, and the possibility of granting authorization to establish an association is not entirely excluded from the date of the change in the guidelines or erosion of the administrative agency. Even if the project of this case is no longer feasible since authorization to establish an association was actually denied after, it should be deemed to have been realized only when the risk of business non-conscept in the apartment construction project under the regional housing association

⑤ The Plaintiffs do not unilaterally have the position to purchase apartment units from the Defendant, but are the parties jointly promoting the instant project as the Defendant’s members, and the Plaintiffs seem to have exercised their rights as the Defendant’s members after concluding each of the instant contracts.

4) Sub-committee

Therefore, the Defendant experienced a big difficulty in promoting the instant project, and even after the administrative problems, etc. are not clear whether the instant project can be completed successfully. However, it is difficult to deem that each of the instant contracts is null and void solely for the original purpose of providing benefits that are impossible. Therefore, this part of the Plaintiffs’ assertion is not accepted.

B. Determination as to the assertion on cancellation of a contract on the ground of fraud or mistake

As to the argument on the cancellation of a contract on the ground of fraud or mistake, it is difficult to view each of the contracts of this case as the purpose of original impossibility, as seen earlier. Therefore, on the premise that each of the contracts of this case is an original impossibility, the contract of this case is based on the premise that it is an original impossibility, namely, on the premise that the Defendant would not construct the apartment of this case by the method of a regional housing association in the project site of this case, under the premise that it is possible to operate the project of this case, the Plaintiff’s assertion seeking the cancellation of each of the contracts of this case and the return of unjust enrichment equivalent to the Plaintiff’s shares, on the ground that the Defendant would intentionally deception the Plaintiffs, or cause mistake to the Plaintiffs, thereby entering into each of the contracts of this case.

C. Determination on the claim for refund of contributions to members under the agreement

1) In a regional housing association like the defendant, which has the legal character as a non-corporate association, the shares of the union members paid by the union members in the district housing association as well as the defendant, shall belong to the collective ownership of the union members, and the management and disposition of the shares of the union members, which are collective ownership, shall be made by a resolution of the general meeting of the union members (Articles 275 and 276 of the Civil Act), and the management and disposal of the non-corporate

2) In the instant case, according to each of the 1sts of evidence Nos. 2, 7, and 8, the phrase “if the Plaintiff’s members fail to obtain authorization for establishment by April 30, 2017, the entire amount of the association members’ contributions paid by the said Plaintiffs shall be refunded,” and the fact that the Defendant’s seal is affixed to the Plaintiff’s members, and the fact that the Defendant did not obtain authorization for establishment from the creative city by April 30, 2017 is found in the above basic facts.

However, since the above agreement on the refund of contributions to a cooperative member constitutes an act of managing and dividing the property of a cooperative that is jointly owned, the chairperson of the promotion committee shall undergo a resolution at the general meeting of the cooperative members in order to valid such agreement (it is recognized the necessity of a resolution at a general meeting in light of the fact that the amount equivalent to the contributions to the cooperative members paid by the cooperative members under the pretext of the promotion of the project in this case is already paid to all the cooperative members only when the full contributions to the cooperative members are refunded to all the cooperative members under the circumstances in which the project in this case was already paid, and there is no evidence to prove that the agreement was resolved at the general meeting of the cooperative members with respect to the above agreement, and according to the statement in subparagraph 9 of subparagraph B, it seems that there was no previous discussion or resolution at a general meeting with respect to the above agreement

3) Thus, apart from the fact that the above plaintiffs are held liable for the above contract acts to the principal of partnership and the above plaintiffs, it is not recognized that the defendant and the above plaintiffs have the duty to return the shares of association members to the above plaintiffs under the above contract. Therefore, this part of the plaintiffs' assertion is without merit.

4. Conclusion

Therefore, each of the plaintiffs' claims in this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges

The presiding judge

Judges Jeong Young-ju

For the purpose of transfer to judge

Note tin

1) It seems that the Defendant’s funds management trust account was deposited into the Defendant’s funds management trust account.

2) Articles 76(1) and 36(1) of the National Land Planning and Utilization Act, Article 71(1)3 and 16 of the Enforcement Decree of the same Act (in cases of internal use, see attached Table 2-related statutes and administrative guidelines)

3.4 See Attached 2-Related Acts and subordinate statutes and administrative guidelines