Plaintiff 1 and one other (Attorney Kim Dong-young, Counsel for the plaintiff-appellant)

Pampling Industry, Inc.

March 9, 2017

Seoul Western District Court Decision 2015Gahap33465 Decided December 24, 2015

1. Of the judgment of the court of first instance, the part against the plaintiffs corresponding to the money ordered to be paid below shall be revoked. The defendant shall pay to the plaintiffs 1 114,625,00 won, and 150,217,000 won to the plaintiffs 2, respectively.

2. The plaintiffs' remaining appeals are dismissed.

3. All costs of the lawsuit shall be borne by the defendant.

4. The part concerning the payment of money under paragraph (1) may be provisionally executed.

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 1 1 14,625,00 won, and 150,217,000 won to the plaintiff 2, and 6% per annum from the day the lawsuit of this case is instituted until the day the judgment of this case is rendered, and 20% per annum from the next day to the day of full payment.

1. Basic facts

(a) Execution of the Defendant’s Cheongsan Building Division into the second basement and the second apartment unit sale;

1) Around 2008, the Defendant carried out the sales project with the content of dividing the two underground floors (one section for exclusive use: sales facility, exclusive area for exclusive use: 3,691.20 square meters) of the △△△ Building (hereinafter the above △△△△ Building) located in Eunpyeong-gu, Seoul ( Address omitted) into the commercial building in this case, and, regardless of whether the two underground floors were divided and then sold to the general public, the sales project was implemented with the content of selling the two underground floors of this case.

2) Around March 2008, the Defendant filed an application for the change of the full-time oil register of collective building with the content that the two underground floors of the instant commercial building in Eunpyeong-gu Seoul Metropolitan Government are divided into 480 stores (2,307.42 square meters in exclusive use area, 1,383.78 square meters in a passage/ice ice rink) as shown in the attached form drawings.

3) On March 24, 2008, the Eunpyeong-gu Seoul Metropolitan Government submitted a performance assurance (hereinafter “instant performance assurance”) stating that “the Defendant shall comply with the Act on the Ownership and Management of Aggregate Buildings (hereinafter “the Aggregate Buildings Act”) and the Act on the Sale of Buildings in connection with the Conversion of Building Register without visiting the 2nd underground floor of the instant commercial building or confirming its status through pictures, etc., and further, if the said Act is not implemented, he/she shall be held liable to the civil and criminal liability for it.” On April 3, 2008, the two underground floors of the instant commercial building were divided into 480 stores on the aggregate building register as requested by the Defendant. Accordingly, the separate registration was completed on April 3, 2008 by dividing the 2nd underground floor of the instant commercial building into 480 stores.

B. Plaintiffs’ conclusion of each of the instant sales contracts and Defendant’s consent to guarantee of profit payment

1) On May 7, 2009, Plaintiff 2 concluded a sales contract with the Defendant for the sales price of KRW 150,217,00 (including value-added tax; hereinafter the same shall apply) with regard to d○○○○○○○○○ store of the instant shopping mall store (the exclusive use area of KRW 6.51 square meters, the shared area of KRW 19.32 square meters). On February 26, 2010, Plaintiff 1 and the Defendant entered into a sales contract with the Defendant for the sales price of KRW 114,625,00 (the exclusive use area of KRW 4.97 square meters, the shared area of KRW 14,625,00 with the sale price of KRW 114,625,00 with regard to the sales price of the instant shopping mall store of this case (the purchase price of the Plaintiffs is each of the instant stores in the names of each of the above stores, and each of the above sales contracts was referred through each of the above sales contracts).

2) At the time of entering into each of the instant sales contracts, the Defendant: (a) prepared and delivered to the Plaintiffs a written consent to guarantee the payment of earnings to the effect that “the Defendant guarantees 10% per annum including the earnings paid in Ireland for two years from the date of the completion of the registration; and (b) entered into an agreement between the Plaintiffs and the Defendant to guarantee the payment of earnings with the said content.

C. Status of the use of the commercial building of this case

New Co., Ltd. leased 10 years from Apr. 13, 2007 to Apr. 12, 2017, 2006 the second to seventh to seventh to the ground of the instant commercial building. The New Co., Ltd. and the New Co., Ltd., Ltd. established by the merger of the distribution business division of the instant commercial building from Apr. 13, 2007 to Apr. 12, 2017 (hereinafter referred to as “Weland”) occupied all the second underground floors of the instant commercial building from the date of the conclusion of the instant sales contract to the date of the closing of argument in this case, and uses it as a food department store of Do

[Reasons for Recognition] The facts without dispute, Gap's statements or images, Gap's evidence Nos. 1, 2, 4, 5, 7, 10 through 15, 25 through 27, 47 through 50, Eul's evidence Nos. 1, 2, 8, and 9 (each number is included; hereinafter the same shall apply), non-party's testimony of the non-party witness at the trial, this court's interest, and the head of Eunpyeong-gu Seoul Metropolitan Government's fact-finding results and the whole purport of the pleadings.

2. Grounds for the instant claim

A. Main assertion

Although the Plaintiffs concluded each of the instant sales contracts with the Defendant and paid the sales price in full, each of the instant sales contracts between the Plaintiffs and the Defendant cannot be the object of partitioned ownership because of its structural independence and independence in use, each of the instant sales contracts between the Plaintiffs and the Defendant is null and void as it is in an original impossibility. Therefore, since each of the sales prices the Defendant received from the Plaintiffs does not have any legal ground, the Defendant must return the sales price received from the Plaintiffs as unjust enrichment.

B. Preliminary assertion

1) In selling each of the stores of this case to the plaintiffs, the defendant caused errors by the plaintiffs as to the location of the store, investment return, and the main body of payment of investment return, etc. In addition, the defendant, even though the lease deposit that leased the second floor of the commercial building of this case to this Ireland was 914,202,560 won, the defendant created a right to lease on a deposit basis in thisland as to the second floor of the commercial building of this case, adding the lease deposit deposit to the above lease deposit, and without notifying the plaintiffs, the plaintiffs did not know that the lease deposit was set at KRW 3,914,204,206 on the second floor of the commercial building of this case. Accordingly, since the plaintiffs cancelled each of the sales contracts of this case on the grounds of mistake or fraud, the defendant should restore the lease deposit to its original state, and thus, the defendant should return the sale deposit amount paid to the plaintiffs under each of the sales contracts of this case.

2) Although the defendant should divide the second underground floor of the commercial building of this case in compliance with the relevant statutes, such as the Act on the Ownership and Management of Aggregate Buildings, the defendant filed an application for division of the whole oil unit unit of the commercial building of this case in violation of the relevant statutes, and then sold each of the above stores to the plaintiffs. The above act of the defendant constitutes "an act contrary to other laws and regulations relating to commercial buildings" (Article 3 (1) 9 of the sales contract of this case) which is one of the grounds for cancellation and termination of the sales contract of this case. Therefore, since the defendant's act of this case constitutes grounds for cancellation as stipulated in each of the sales contract of this case, each of the sales contract of this case is cancelled on the ground that the defendant's act constitutes grounds for cancellation

3) The Defendant is liable for damages to the Plaintiffs in accordance with the Act on Fair Labeling and Advertising and its Enforcement Decree, since it falsely or exaggeratedly advertised the store’s profit rate and the period of guaranteeing profit, etc. In addition, the Defendant’s false or exaggerated advertisements constitute a violation of the duty of disclosure under the good faith principle, which is a tort under the Civil Act, and thus, the Defendant is liable for damages to the Plaintiffs. Accordingly, the Defendant should pay the amount equivalent to each purchase price to the Plaintiffs in accordance with the Act on Fair Labeling and Advertising or in accordance with the Civil Act.

3. Determination

A. Determination on the validity of each of the instant sales contracts

In the sales contract for the purpose of acquiring the ownership of a partitioned building, the seller's obligation to transfer ownership is entirely impossible, so that the contract is null and void, it should be evaluated that it is impossible to maintain independence in structure and use according to the contents agreed between the parties.

1) Whether each of the stores of this case can be the object of sectional ownership

If a part of one building is able to become the object of sectional ownership, its part must be independent from other parts in structure or use. There may be differences in structural independence in accordance with the situation or use form. However, structural independence is required mainly because the scope of physical control over the object of ownership is needed to be clarified. Thus, in a case where the scope of the object of sectional ownership can not be determined by structural division, it cannot be said that there is structural independence. Meanwhile, with respect to commercial buildings within a certain scope, the scope of the object of sectional ownership can not be determined in accordance with structural division, Article 1-2 of the Aggregate Buildings Act easing the requirement of structural independence, Article 1-2 of the Aggregate Buildings Act, Article 1-2(1) of the Act on the Ownership and Management of Aggregate Buildings, and Article 1-2(1) of the Regulations on the Boundary Mark of Building Number Marks (hereinafter referred to as the "Regulations of Boundary and Building Number Marks"), Article 201 and Article 29 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter referred to as 209.14 of sectional ownership cannot be determined as an object of sectional ownership.

In light of the above legal principles, each of the stores of this case was not independent from other parts in terms of structure or use, and it is reasonable to view that the store of this case did not meet the requirements set forth in Article 1-2 of the Aggregate Buildings Act, Articles 1 and 2 of the Boundary Mark and Building Number Table Nos. 10 through 14, 34, 39, 40, and 48, and the testimony or image of the Non-Party witness of this case, the fact inquiry into the head of Eunpyeong-gu Seoul Metropolitan Government Office of the Seoul Metropolitan Government, and the following facts or circumstances, etc., which can be acknowledged as a result of the fact inquiry into the whole purport of the pleading. Accordingly, each of the stores of this case was merely a subdivision of the second floor of this case where the requirements for structural independence are alleviated, and it cannot be the object of sectional ownership. Accordingly, even if each of the stores of this case is registered as a separate section on the building register, it is invalid even if it is for the purpose of sectional ownership.

㈎ 집합건축물대장상 용도가 판매시설로 지정되어 있는 이 사건 각 점포가 구분소유권의 객체로서 적합한 물리적 요건을 갖추기 위해서는, 외벽 등의 견고한 구조물에 의해 전용 부분이 명확히 구분되거나, 적어도 구조상 독립성 요건을 완화한 집합건물법 제1조의2 , 경계표지 및 건물번호표지 규정 제1조 , 제2조 가 정하고 있는 요건에 따라 경계를 명확하게 알아볼 수 있는 경계표지가 바닥에 견고하게 설치되고 점포별로 부여된 건물번호표지가 견고하게 붙어 있어야 한다. 그런데 이 사건 각 점포를 포함한 이 사건 상가 지하2층 점포들은 외벽 등의 견고한 구조물에 의하여 전용 부분이 명확히 구분된 적이 없을 뿐만 아니라, 바닥에 경계를 명확하게 알아볼 수 있는 경계표지와 점포별로 부여된 건물번호표지가 견고하게 붙어 있지 않은 채 별지 현황도면상 각 점포의 구분과 상관없이 일체로써 ◇◇백화점 식품관으로 이용되고 있을 뿐이다.

이에 대하여 피고는, 비록 계약 당시에 그 계약상 의무를 즉시 이행하는 것이 불가능하더라도 계약의 이행이 장래에 가능하게 된 경우를 예정하여 계약을 체결하였다면 그러한 계약이 무효라고 할 수는 없는데, 피고가 이 사건 각 분양계약 이후인 2014. 12. 17.부터 2015. 1. 8.경까지 사이에 이 사건 상가 지하2층 점포별로 경계표지와 건물번호표지 설치 공사를 마쳤고, 이 사건 각 점포의 경계표지 일부가 내부 인테리어 작업 등으로 덮여 있기는 하나 이랜드에 대한 임대차계약 종료 시 원상회복이 가능하므로 이 사건 각 점포는 구분소유권의 객체가 될 수 있을 정도로 구조상 독립성을 갖추었다는 취지로 주장하나, 을 제3, 4호증의 각 기재 또는 영상만으로는 이 사건 각 점포를 포함하여 이 사건 상가 지하2층의 바닥에 점포별 경계를 명확히 알아볼 수 있는 경계표지와 건물번호표지가 제대로 설치되었다고 인정하기에 부족하고 달리 이를 인정할 증거가 없으므로, 피고의 위 주장은 받아들이지 아니한다[을 제4호증의 영상에 의하면, 이 사건 각 점포의 바닥에 “28B-△△△", "28D-○○○"이라는 건물번호표지가 새겨진 금속판과 경계표시로 보이는 ”십“ 또는 ”ㅏ“ 모양의 금속판이 부착·설치된 사실은 인정할 수 있으나, 위 경계표지 재료의 색이 이 사건 상가 지하2층 바닥에 부착되어 있는 띠 모양 부분의 색과 명확히 구분된다고 보기 어려울 뿐만 아니라, 이 사건 상가 지하2층 바닥 전체에 그 위치와 면적대로 정확하게 설치되었다고 인정하기 어렵고, 오히려 갑 제34, 40호증의 각 영상에 의하면 이 사건 상가 지하2층 바닥에 붙어 있었던 것으로 보이는 점포의 경계표지나 건물번호표지가 상당 부분 손상된 상태임을 알 수 있어 집합건물법 제1조의2 , 경계표지 및 건물번호표지 규정 제1조 , 제2조 가 정하고 있는 요건을 충족하였다고 볼 수도 없다].

㈏ 피고가 이 사건 각 분양계약 이전에 이 사건 상가 지하2층을 별지 현황도면과 같이 480개의 점포로 분할하는 내용으로 집합건축물대장 전유부분 변경신청을 하여 집합건축물대장상 이 사건 상가 지하2층에 관한 집합건축물대장 전유부분이 변경됨으로써 이 사건 각 점포가 구분건물로 등록되고, 부동산등기부에도 구분소유권의 목적으로 등기된 사실은 앞서 인정한 바와 같으나, 위 ㈎에서 본 사정 이외에 피고가 집합건축물관리대장 전유부분 변경 및 부동산등기부 구분등기를 할 당시 이 사건 상가 지하2층이 구조적으로 구분되어 있었다고 볼 만한 증거는 없으므로, 위 집합건축물대장 및 부동산등기부의 기재를 들어 이 사건 각 점포를 포함한 이 사건 상가 지하2층 점포들이 별지 현황도면과 같이 구조적으로 구분되어 있었다고 볼 수도 없다.

㈐ 나아가, 이 사건 각 점포를 포함하여 이 사건 상가 지하2층 점포들이 구분소유권의 객체가 되기 위해서는 경계표지 및 건물번호표시 규정 제2조 제3항 에 따라 점포의 위치가 표시된 현황도를 이 사건 상가 지하2층 입구의 잘 보이는 곳에 견고하게 설치하여여야 하나, 피고가 이 사건 상가 지하2층 입구에 위 현황도를 설치하였는지 여부를 확인할 수 있는 자료는 제시되지 않았다.

2) Whether each of the instant sales contracts can be implemented

The phrase “a part of one building shall be independent from other parts in terms of use and structure” is a requirement for establishing and maintaining sectional ownership. As seen above, each of the stores in this case shall not be deemed to have been structurally divided from the time of the registration of sectional ownership to the time of the closing of argument in this case, and there is no other evidence to prove otherwise.

Ultimately, each of the stores of this case is merely a subdivision of the second floor of the commercial building of this case, and it cannot be the object of sectional ownership. Accordingly, each of the sales contracts of this case with the purpose of acquiring the sectional ownership of each of the stores of this case is impossible to implement it.

In regard to this, the Defendant asserts to the effect that since the Plaintiff recognized that the entire 2nd floor of the instant shopping mall, including each of the instant stores, was in the state of being leased to thisland and was sold out each of the instant stores, as long as structural classification of each of the instant stores is not possible even later, it cannot be readily concluded that the implementation of each of the instant sales contracts is an inevitable impossibility solely on the ground that each of the instant stores was not structurally classified as of the time of the sales contract or the date of closing argument of the instant case.

Then, at the time of entering into each of the instant sales contracts, thisland had already leased and used this case’s second basements as food center for △△△ department stores. The fact that the agreement was concluded between the Plaintiffs and the Defendant on the guarantee of earnings payment was acknowledged as above. According to the above facts, the Plaintiffs appears to have concluded each of the instant sales contracts with the knowledge that the entire second basements of the instant commercial building were in the state of being leased to this Ireland and receiving profits. However, since the content of each of the instant sales contracts is for the purpose of acquiring divided ownership of each of the instant stores, the Plaintiffs and the Defendant agreed to lease each of the instant stores to third parties, and even if the Plaintiffs and the Defendant agreed to receive certain profits from the Defendant, the agreement on the guarantee of earnings payment is merely based on the premise that each of the instant sales contracts is valid, and it is not possible to affect the judgment as to whether each of the instant sales contracts was implemented.

Even if it is necessary to determine whether each of the stores of this case can be the object of divided ownership after the expiration of the lease period of thisland, the following circumstances, i.e., the exclusive use area of the second floor store of this case, which is sold to several buyers including the store of this case, is narrow to 4.80 square meters average (2.75 square meters as 028, 2.00 square meters), since each of the stores of this case can be the object of divided ownership after the expiration of the lease period of this village, it is difficult to determine whether each of the above stores of this case can be the object of divided ownership. However, since the two shops of this case were installed within the 2nd floor of this case, each of the above 2nd floor of this case's underground floor of this case's building of this case's building of this case's building of this case's 1,12,14,28, and 39, the second floor of this case's building of this case's 2nd floor of this case's underground building of this case's building of this case's 2nd.

3) Sub-determination

Thus, each store of this case cannot be the object of sectional ownership because it is structural and use independence, so the sales contract of this case between the plaintiffs and the defendant is null and void. Accordingly, since each sales price that the defendant received from the plaintiffs has no legal ground, the defendant has a duty to return the sales price received from the plaintiffs to the plaintiffs as unjust enrichment, barring special circumstances.

B. Scope of return of unjust enrichment

1) After entering into each of the instant sales contracts, the fact that the Defendant received KRW 114,625,00 from the Plaintiff 1 and the sales price of KRW 150,217,00 from the Plaintiff 2 is identical as seen earlier. As such, the Defendant is obligated to pay KRW 114,625,00 and KRW 150,217,00 to the Plaintiff 2 (as long as each of the instant sales contracts is deemed null and void, there is no agreement between the Plaintiffs and the Defendant on guaranteeing the payment of profits entered into between the Plaintiff and the Defendant on the premise that each of the instant sales contracts is valid. However, since the Defendant did not assert and prove any assertion, it is not so decided as to the amount of money paid by the Defendant to the Plaintiffs under the agreement on guaranteeing the payment of profits and the scope of return or deduction).

2) Meanwhile, the Plaintiffs seek against the Defendant for the payment of damages for delay from the date on which the instant lawsuit was filed against each of the above amounts equivalent to the sale price.

In cases where a bilateral contract becomes null and void and each party has to return one another's acquisition, and if the obligation to return is enforced first, it would violate the principle of fairness and good faith, and thus, each party's obligation to return is in a simultaneous performance relationship (see, e.g., Supreme Court Decisions 95Da54693, Jun. 14, 1996; 2005Da38843, Dec. 28, 2007; 2007; 2005Da38843, Dec. 28, 2007). In cases where both parties' obligation are in a simultaneous performance relationship, even if one party's obligation becomes due, the party is not liable for the delay of performance until the other party's obligation is performed. Such effect does not necessarily arise if a claimant who is not liable for the delay of performance has exercised his right of defense at once (see, e.g., Supreme Court Decision 97Da54604, Mar. 13, 1998).

In light of the above legal principles, since the obligation of the defendant to return unjust enrichment equivalent to the price for the sale in lots to the plaintiffs and the obligation of the plaintiffs to registration of cancellation of ownership transfer as to each of the stores in this case against the defendant is in the simultaneous performance relationship. Since the plaintiffs and the defendant are in the simultaneous performance relationship, the defendant does not hold the defendant liable for delay of performance even though the defendant did not refuse to perform his obligation by asserting the simultaneous performance relationship, and there is no assertion or proof as to the fact that the plaintiffs prepared documents necessary for registration of cancellation of ownership transfer registration of each of the stores in this case and provided performance or performance by notifying the defendant of the purport thereof. Thus, the defendant is not liable for delay of performance to the plaintiffs.

Therefore, the part of the plaintiffs' claim for the payment of damages for delay against the money equivalent to the purchase price of each of the instant claims is without merit.

4. Conclusion

Therefore, the plaintiffs' claims of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed for reasons. Since the judgment of the court of first instance is partially unfair with different conclusions, the part of the appeal against the plaintiffs, which was ordered to pay, among the judgment of the court of first instance, shall be revoked, and the payment of each of the above amounts shall be ordered to the defendant. Since each of the remaining appeals by the plaintiffs are without merit, they shall be dismissed as per Disposition.

[Attachment]

Judges Kim Yong-dae (Presiding Judge) Park Jae-hunon