2011Gahap4534 Return of the purchase price

A

Hanol Trust Co., Ltd. (formerly: Daol Real Estate Trust Co., Ltd.)

May 3, 2012

May 24, 2012

1. Within the limit of trust property, the Defendant shall pay to the Plaintiff 107,480,00 won with 5% interest per annum from May 5, 2011 to May 24, 2012, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. 1/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 107,480,00 won with 5% interest per annum from October 21, 2005 to August 20, 2008, and 20% interest per annum from the next day to the day of full payment.

1. Basic facts

A. Conclusion of the instant business agreement, etc.

(1) The Pyeongtaek Sea Construction Co., Ltd. (hereinafter referred to as the "Non-Party Co., Ltd.") will undertake the business of newly constructing and selling 11 commercial buildings on the land outside B and nine parcels of land (hereinafter referred to as the "project site"; hereinafter referred to as the "the business site of this case"; hereinafter referred to as the "the business site of this case"). On June 29, 2004, the non-party Co., Ltd will receive a loan from the PF lending financial institution, the Si Corporation, the real estate trust company, and the defendant, who is the real estate trust company, receive the business expenses from the PF lending financial institution, and trust the business site of this case and the commercial building of this case to the defendant and entrust the management of funds such as receipt, management, and execution of the sales revenue of the above business to the defendant, and after the change of the PF lending financial institution after May 18, 2005, the business agreement of this case was concluded with the defendant financial institution, etc. (hereinafter referred to as the "project agreement of this case").

(2) On June 29, 2004, the non-party company entered into a real estate security trust agreement on the commercial building of this case where the non-party company as the "PF lending financial institution" and the "non-party company" as the "non-party company" (the real estate security trust agreement on August 11, 2005 and June 26, 2006 changed or added the priority beneficiary) and entered into a substitute contract on May 13, 2005 to delegate the receipt, management, withdrawal, and execution of the sales price of this case to the defendant. On August 17, 2005, the non-party company completed the registration of ownership transfer on the remainder of the commercial building of this case except 101 units among the commercial buildings of this case, and completed the registration of ownership transfer to the defendant trustee on the same day.

(3) The Defendant received the sales price on behalf of the non-party company in accordance with the foregoing business agreement and the agency business agreement, and deposited and managed all revenues related to the instant business, including the loan principal, sales revenue, and overdue charge, into the sales revenue management account opened in its own name.

B. Conclusion and cancellation of sales contracts

(1) On February 16, 2004, the Plaintiff entered into a contract under which 111-dong 106, among the instant commercial buildings were sold in KRW 134,417,668 (hereinafter “instant sales contract”), and paid 107,480,000 in total the down payment and intermediate payment until August 15, 2004 according to the said sales contract.

(2) After the conclusion of the sales contract, the Plaintiff filed a lawsuit with Suwon District Court to seek the cancellation of the sales contract and the return of the sales price on the ground that the non-party company failed to perform the above special agreement, despite the fact that the non-party company established a large entrance allowing vehicle access between 110 dong and 111 dong, and that the Plaintiff entered into a special agreement to install a large-scale ground parking lot allowing vehicle parking lot for 200 rolling stock in front of the shop sold in lots, and on the premise that the sales price was higher than other dongs, the Plaintiff did not perform the above special agreement.

(3) The plaintiff was sentenced to a judgment against the court of first instance in the above case, but appealed on August 20, 2008, and "the defendant (foreign company) as Seoul High Court 2007Na35536 delivered a favorable judgment against the plaintiff 107,480,000 won and the amount calculated by the rate of 5% per annum from October 21, 2005 to August 20, 2008 and 20% per annum from the next day to the date of full payment." The above judgment became final and conclusive as it is.

C. Insolvent of the non-party company

The non-party company is insolvent in excess of its current assets.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 5, Eul evidence 1, the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

The plaintiff asserts that the plaintiff is liable to return the sales price already paid to the non-party company due to the cancellation of the sales contract in this case. Thus, the plaintiff asserts that the non-party company seeks the payment of the sales price refund claim against the non-party company in subrogation of the non-party company which is insolvent as the preserved bond.

B. Determination

(1) A preserved claim

According to the above facts, the plaintiff entered into the sales contract of this case with the non-party company, and paid 107,480,000 won in total with the down payment and the intermediate payment. The defendant received and managed the above sales price in the account under the name of the defendant. Since the plaintiff filed a lawsuit seeking the cancellation of the sales contract of this case and the return of the sale price, and the judgment accepting the claim became final and conclusive, the plaintiff has a claim to seek the payment of the sale price already paid to the non-party company and the delayed payment damages.

(2) Subrogation claim

(A) According to the above facts, the defendant's receipt and management of the sales price by the buyer on behalf of the non-party company under the name of the defendant is conducted by delegation from the non-party company. Thus, in the event that the sales contract concluded between the non-party company and the buyer loses its retroactive effect, the defendant acting for the non-party company has no legal ground to receive and manage the sales price under the above contract. However, the fact that the plaintiff cancelled the sales contract of this case with the non-party company, as seen earlier, the non-party company can demand the return of the sales price on behalf of the defendant who received and managed the sales price on behalf of the non-party company, on the ground that the sales contract was cancelled.

(B) The Defendant asserts that, if the proceeds from the sale in lots are returned to the account for the cancellation, etc. of the sale in lots, the proceeds from the sale in lots including the proceeds from the sale in lots cannot be properly executed and operated, and that the purport of the trust system itself, such as stable operation of the business and recovery of proceeds from the sale in lots, is contrary to the purport of the trust system itself. However, in full view of the aforementioned facts and the purport of the entire pleadings, the real estate trusted by the non-party company to the Defendant is 12 out of the business site and the 13 commercial buildings in this case with the exception of 101 units, and the real estate acquired by the non-party company in trust with the trust property or the property acquired by subrogation, the profits accrued from the management of money belonging to the above trust property, such as the proceeds from the sale in lots of the above trust property, and the proceeds from the sale in lots received by the non-party company from the account under the name of the non-party company cannot be seen as being returned to the non-party company's interests or the proceeds from sale in lots.

(C) Therefore, the non-party company has the right to claim the return of KRW 107,480,000, which is received and managed by the account for sales revenue management in its name against the defendant.

(3) Sub-decisions

Therefore, the defendant is liable to pay the amount equivalent to the sale price as above to the plaintiff who subrogated the insolvent non-party company and damages for delay after the plaintiff claimed the return of the sale price on behalf of the non-party company (the plaintiff claimed the payment of damages for delay from October 21, 2005 with respect to the sale price, but the non-party company's claim for damages for delay before claiming the return of the sale price on behalf of the non-party company is without merit). The judgment on the defendant's assertion is without merit.

In this regard, the defendant asserts that he has a duty to return the sale price only within the limit of the trust property.

On the other hand, Article 32 of the Trust Act provides that "the trustee shall be liable for performance within the limit of the trust property with respect to the obligation to be borne by the beneficiary due to the deed of trust, and the defendant's repayment of the sale price to the non-party company following the cancellation of the sale contract is the obligation to the non-party company, which is the beneficiary, by the deed of trust. Thus, the defendant is ultimately liable to pay the amount equivalent to the above sale price to the plaintiff within the limit of the above trust property. Thus, the defendant's above assertion is justified

3. Conclusion

Therefore, within the limit of trust property, the defendant is obligated to pay to the plaintiff the amount of KRW 107,480,00 and damages for delay calculated at the rate of 5% per annum under the Civil Act and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day of May 5, 2011, which is the day following the day when the defendant received the original copy of the payment order of this case, which the plaintiff expressed on behalf of the non-party company that the plaintiff sought the return of the sale price on behalf of the non-party company, until May 24, 2012.

The presiding judge, judge and red case

Rate of Judge higher

Judges Park Jae-young