Hyundai Construction Co., Ltd. (Law Firm Hun-Ba, Attorneys Southern-gu et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm Choi River, Attorneys Kim Jong-sik, Counsel for the defendant-appellant)

April 7, 2016

1. The Plaintiff:

A. Defendant 1 pays 6% per annum for KRW 342,225,761 and for KRW 108,932,00 from January 1, 2013 to May 19, 2016; and 233,293, and 761% per annum for KRW 342,225,761 calculated at the rate of 15% per annum for KRW 233,293, and 361 from the following day to the date of full payment; 6% per annum for KRW 342,225,761; and 20% per annum from the following day to August 19, 2015 until September 30, 2015; and

B. Defendant 2 pays 6% per annum for KRW 340,954,359 and for KRW 109,912,00,00 per annum from January 1, 2013 to May 19, 2016; and 231,042,359 per annum for KRW 239,00 per annum for KRW 340,954,359; KRW 20% per annum from the following day to June 22, 2015; and KRW 15% per annum for KRW 31,042,359.

2. The plaintiff's remaining claims against the defendants are all dismissed.

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

4. Paragraph 1 can be provisionally executed.

1. Defendant 1 pays to the Plaintiff the amount of KRW 342,225,761 and KRW 108,932,00 per annum from January 1, 2013 to the service date of the original copy of the instant payment order, KRW 15.96% per annum, KRW 233,293,761 from April 30, 2015 to the service date of the original copy of the instant payment order, KRW 6% per annum, KRW 20% per annum from the next day to September 30, 2015, and KRW 15% per annum from the next day to the day of complete payment.

2. Defendant 2 pays to the Plaintiff money of KRW 340,954,359 and KRW 109,912,00 per annum from January 1, 2013 to the service date of the original copy of the instant payment order, KRW 15.96% per annum, KRW 231,042,359 from September 30, 2013 to the service date of the original copy of the instant payment order, KRW 6% per annum, KRW 20% per annum from the next day to September 30, 2015, and KRW 15% per annum from the next day to the day of full payment.

1. Basic facts

A. Status of the parties

The Plaintiff is an executor and a contractor of a business of newly constructing and selling a Young-gu ○○○○○ apartment building (hereinafter “instant apartment building”) with a scale of 1,628 square meters on the ground of 72,182,593 square meters in Jung-gu, Jung-gu, Incheon Free Economic Zone. Defendant 1 entered into a sales contract with the Plaintiff with respect to the △△△△dong-dong, and Defendant 2 is the buyer who succeeded to the status of the buyer from the Nonparty on November 8, 2012 (hereinafter “instant sales contract”). The sales contract between the buyer and the Plaintiff is the seller (hereinafter “instant sales contract”).

(b) Sales contracts and options construction contracts;

1) As to the instant apartment, the Plaintiff concluded the instant sales contract between Defendant 1 and the Nonparty as shown below (I).

The sales price (won) for Defendant 1, 1, 328,180,000 on November 6, 2009, 328, 180,000, Nonparty 1, 1, 540,000, △△△△dong, Dong-dong, △△△△△, Seoul, Nov. 6, 2009

2) On the date of conclusion of the instant sales contract, Defendant 1 paid Defendant 32,650,000 won to the Plaintiff as down payment, and the Nonparty paid KRW 32,990,00 to the Plaintiff respectively, and thereafter, the intermediate payment was paid six times, and the remainder was agreed to be paid on the date of designation of occupancy as determined by the Plaintiff. Each intermediate payment, balance, and the payment period specified in the instant sales contract are as listed below [Ⅱ].

The amount of KRW 32,650,000 (total KRW 195,90,00) 32,990,000,000 (total KRW 197,940,000) in △△△△△△△dong, Seoul, on April 15, 2010, September 15, 201, 201, of the second part of the third part of the third part of the third part of the third part of the third part of the third part, the second part of the second part of the part, which is contained in the main text, on May 15, 2011, December 15, 2015, 201, respectively, 32,650,00 won (total KRW 195,90,000) in △△△△dong, △△△△△△, respectively, on May 15, 2011.

3) Defendant 1 and the Nonparty entered into a balcony expansion option contract (hereinafter “instant options contract”) with the Plaintiff as indicated in the following [Attachment III], and paid the down payment to the Plaintiff.

Defendant 1 on May 30, 2010 2,320,000 9,302,000 Nonparty 2 on May 29, 2010 2,320,00,00 on May 29, 2010

4) When concluding the instant sales contract and the instant options contract, Defendant 1 and the Nonparty agreed to pay damages for delay by applying the delayed interest rate as indicated below (Ⅳ) in the event that the payment of the sales price and the balance of the options construction cost is delayed.

Additional interest rate (A) on the overdue interest rate (A) on the average of credit (B) (A+B) 1 to 30 days in the main sentence, 5.96% 10.96% on 31 to 90 days, 8% on 13.96% on 91 to 180% on 91 days from 91 days to 14.96% on 181 days, 10% on 15.96% on 181 days.

C. Mediation of Plaintiff’s intermediate payment loans and advance payment of interest

1) In the instant sales contract, the Plaintiff agreed to arrange for Defendant 1 and the Nonparty to receive part payments, and to pay interest on part payments until the month in which the date of use inspection falls on the condition of subsequent settlement. Defendant 1 and the Nonparty agreed to pay the part payments directly, and to pay the interest on the part payment by adding the interest on the part payment to the Plaintiff at the time of late payment, and to repay the principal and interest of part payments to the lending bank or to convert it into a secured loan.

2) Defendant 1 and the Nonparty concluded a loan agreement with the former Korea Exchange Bank (hereinafter “Korea Exchange Bank”) upon the Plaintiff’s recommendation. The intermediate payment loan was deposited into the Plaintiff’s account at each payment date.

D. The plaintiff's delivery of written guidance for occupancy and the defendants' refusal to move into.

1) On October 26, 2012, the Plaintiff underwent a pre-use inspection on the instant apartment, and set the occupancy designation period from November 3, 2012 to December 31, 2012, and sent to the Defendants a written guidance of occupancy that results in the procedures for occupancy, such as the payment of remainder, repayment of part payments, repayment of loan, transfer of registration, etc. during the occupancy designation period.

2) After the lapse of December 31, 2012, which is the end of the occupancy designation period, the Defendants did not pay the remainder of the sale price and the options construction cost without the Plaintiff’s occupancy even after the Plaintiff fulfilled its obligations for the process of ownership transfer registration.

(e) Payment of principal and interest of part payments;

1) The Defendants did not settle the interest of the intermediate payment that the Plaintiff paid to the foreign exchange bank by the end of the period designated for occupancy, which is the settlement deadline, and did not repay the loan principal and the remainder interest to the foreign exchange bank by the end of the period designated for occupancy, which is the repayment deadline.

2) Accordingly, the foreign exchange bank requested the Plaintiff to repay the principal and interest of the Defendants’ interest of the intermediate payment that the Defendants failed to pay and the remainder interest. The interest accrued from the date of advance payment and the interest accrued from the date of usage inspection to the date of the Plaintiff’s subrogation on the condition that the Defendants settle down the intermediate payment principal of the Defendants, and the interest accrued from the date of usage inspection to the date

Defendant 1, April 30, 2015, 195,90,000,326,378,38323,293,7612, Sept. 30, 2013, Defendant 2, 197,97,97,97,97,940,940,940,0019,527,6313,527,6313,528,728,728,42,3599, on April 30, 2015, 195, 195,95,47,728,728, 231,042,359, 200, 197,94, 197,94,000,527, 6313, 5

1) Date of subrogation

Note 2) Interest

[Reasons for Recognition] Facts without dispute, Gap evidence 1-1, 3, Gap evidence 2-1, 3, Gap evidence 3, Gap evidence 4-1, 2, Gap evidence 5-1, 2, Gap evidence 6-1, 3, 7-1, 7-2, and the purport of the whole pleadings

2. Determination on the Plaintiff’s claim against Defendant 1

A. Determination on the cause of the claim

According to the above facts, barring any special circumstance, Defendant 1 is obligated to pay to the Plaintiff the remainder of the purchase price of the instant sales contract, the instant options contract, the intermediate payment, the principal and interest of the principal and interest of the loan, and the obligation to pay the Plaintiff the remainder of the purchase price of KRW 342,225,761 (=the remainder of the purchase price of KRW 99,630,000 + the balance of the option construction cost of KRW 9,302,00 + the balance of the purchase price of KRW 9,302,00 + the balance of the purchase price of the option construction

B. Determination as to Defendant 1’s assertion

1) Determination as to the violation of the good faith principle or abuse of rights defense

A) Defendant 1’s assertion

In light of the following circumstances, the Plaintiff’s claim of this case, which only establishes the binding force of an erroneous contract, shall not be allowed since it constitutes an abuse of rights that substantially goes against the principle of good faith, justice, and equity.

① Unlike the contents advertised by the Plaintiff at the time of entering into the instant sales contract, it is difficult to move into the territory due to the significant lack of urban infrastructure, such as child-care centers, kindergartens, schools, private teaching institutes, hospitals, pharmacies, pharmacies, public security facilities, and religious facilities.

② Defendant 1 had a sufficient reason to obtain the perception that the instant sales contract was fraud sale, and accordingly, he had no choice but to refuse to move in until the relevant judgment is sentenced, as well as the third-party landing bridge which was determined by the court as false or exaggerated advertising, and all of the development projects around the instant apartment that the Plaintiff mainly advertised to attract buyers to subscribe and contract.

③ The third land landing road is a road installed in the section that connects Yong-do and land in the shortest distance. It is not only the road that connects the core of Incheon Free Economic Zone and Incheon District to the shortest distance, but also the road that connects Seoul to the shortest distance straight line in connection with the first land straight line project. As such, the traffic problems of Yong-do can be drastically improved, but also the main infrastructure that significantly enhances the possibility of development of Yong-do by strengthening the connectivity between Incheon Free Economic Zone and Incheon District and the Incheon District and the Seoul District. However, even though the construction companies supplied with Young-do requested the cancellation or termination of the housing site supply contract on the ground of the non-construction of the third land landing zone, the Plaintiff published a false director or director as to the third land landing at the time of the conclusion of the instant sale contract.

④ The Plaintiff, despite his own awareness of “an island with no infrastructure” due to a significant delay in the construction and completion of the urban infrastructure based on the Youngdo, was responsible for preventing his/her loss. Therefore, even if the instant apartment building was completed and the occupancy procedure was commenced, it was anticipated that the refusal of the buyers to move in may occur.

⑤ The Plaintiff is not allowed to assert the breach of a contract or claim overdue interest against Defendant 1 on the ground that the Plaintiff did not move into the old city directly linked to the infringement of fundamental rights guaranteed by the Constitution, such as environmental rights, housing rights, and mobility rights.

B) Determination

For the purpose of exercising the right to be an abuse of the right, subjectively, the purpose of the exercise of the right is to inflict pain and damage on the other party, and there should be no benefit to the person who exercises the right, and objectively, the exercise of the right should be deemed to be contrary to social order. Barring such a case, even if damage is significantly high to the other party than the benefit the person has gained by exercising the right to exercise the right, such circumstance alone cannot be deemed an abuse of the right (see, e.g., Supreme Court Decision 2007Da5397, Sept. 25, 2008). Furthermore, the principle of trust and good faith under the Civil Act is an abstract norm that a party to a legal relationship should not exercise the right by taking into account the other party’s interest and should not exercise the right or perform the duty by contents or means that it goes against the principle of trust and good faith. In order to deny the exercise of the right on the ground that it goes against the principle of trust and good faith, the other party’s good faith should be objectively deemed to be in a state (see, 4.

In light of the following circumstances, it is not sufficient to recognize the Plaintiff’s claim as an abuse of rights against the social order, or as an act contrary to the principle of good faith, as it is considerably unacceptable in light of the concept of justice, since it is difficult to recognize it as an act in violation of the principle of good faith, solely with the descriptions or images of subparagraphs 1 through 23, and 26 through 36 (including each number number), as it merely aims to inflict pain and damage on Defendant 1, and there is no other benefit to the Plaintiff. Accordingly, the above defense by Defendant 1 cannot be accepted.

① As long as the effect of the instant sales contract is recognized (the buyer of the instant apartment against the Plaintiff in this case filed a lawsuit against the Plaintiff for the cancellation or cancellation of the sales contract concluded with the Plaintiff on the grounds alleged by Defendant 1. However, the Plaintiff’s claim for the cancellation or cancellation of the sales contract was not accepted. However, the Plaintiff’s claim for the cancellation or cancellation of the sales contract was not accepted. However, the Plaintiff’s advertisement, which was opened around 2014, constitutes false or exaggerated advertisements as provided by the Act on Fair Labeling and Advertising (hereinafter “Indication Advertising”) and the Plaintiff’s liability for damages was recognized. Incheon District Court Decision 2011Da20689, the Seoul High Court Decision 2013Na23688, the Seoul High Court Decision 2014Da5728, the Seoul High Court Decision 2015Na16141, May 1, 2015). The Plaintiff’s claim for damages against the Plaintiff under the instant sales contract can not be deemed as being justified in relation to the Plaintiff’s tort liability.

② Even if the Plaintiff advertised various development projects including the third consecutive landing bridge prior to the instant sales contract, it is uncertain whether the above development projects, which the Plaintiff advertised, were in the stage of urban planning of Incheon Metropolitan City or the business plan of the business operator, and thus, at the time of the instant sales contract, the development projects may neither be added nor altered. As such, it cannot be deemed as contrary to the principle of good faith on the ground that the Plaintiff sought the performance of its obligations under the instant sales contract to Defendant 1.

③ Not only is it related to the appearance and quality of apartment units among the contents of the advertisement, but also it is difficult for the seller to expect that the contents of the advertisement will be fulfilled from the buyer’s standpoint in light of social norms, as it is, the contents of the advertisement can not be seen as having dealt with the contents of the sales contract (see Supreme Court Decision 2005Da5812, 5829, 5836, Jun. 1, 2007). Even if the Plaintiff advertised an urban infrastructure, such as the third land landing bridge at the time of the sales contract in this case, such advertisement is not related to the appearance and quality of apartment units in this case, and it cannot be viewed as having dealt with the contents of the sales contract in this case, as it is difficult for the Plaintiff, from the buyer’s standpoint, who is the seller, to directly implement the advertisement.

2) Determination as to the assertion that the business agreement, which is a contract for a third party, is violated and constitutes abuse of rights against the good faith principle

A) Defendant 1’s assertion

In cases where a buyer delays the repayment of part payments pursuant to Article 3 of the instant Work Agreement, the Plaintiff is obligated to immediately cancel the instant contract for sale in lots and appropriate the payment of the principal and interest of part payments as the down payment and intermediate payment already received from the buyer. Since the instant work agreement constitutes a contract for a third party, and is binding between Defendant 1 and Defendant 1, Defendant 1 may directly assert the cancellation of the instant contract for sale in lots and appropriation for payment. However, even though Defendant 1 did not cancel the instant contract for sale in lots or pay the remainder of the bank loans, the Plaintiff does not seek the remainder of the sales price and the options work on the premise of maintaining the contract, and does not appropriate the payment of the principal and interest of the principal and interest of the part payments. Defendant 1 claims compensation after paying the principal and interest of part payments with a separate fund. Defendant 1 is contrary to the instant work agreement and cannot comply with the Plaintiff’s claim for abuse of rights, which is an abuse of rights, contrary to the principle of trust and good faith.

B) the facts of recognition

① Before the instant sales contract and the intermediate payment loan contract between Defendant 1 and the foreign exchange bank were concluded, the Plaintiff and the foreign exchange bank already entered into the instant business agreement on the part payment of apartments (hereinafter “instant business agreement”). The main contents of the instant business agreement are as follows.

(2) In the event that the Korea Exchange Bank (hereinafter referred to as the "B") which has agreed to provide loan terms, conditions of loan, security and guarantee, duty of cooperation, etc. to determine matters related to loan transactions in advance (hereinafter referred to as the "loan"), the following terms and conditions of loan shall be mutually approved, and this loan shall be implemented in good faith with respect to the basic terms and conditions of loan transaction of the bank "B" (hereinafter referred to as the "C"). Article 3 (Duty of Cooperation in Recovery of Claims") (2) In the event that the "B" causes of Article 8 (Loss of Benefit) of the present Convention have occurred and the "B" (hereinafter referred to as the "B") are delayed to repay the loans of the apartment house of this case under operation, the "B" shall be jointly and severally liable to the "B" due to the cancellation of the contract for the apartment house of this case and the "B" shall be jointly and severally liable to the "B" (hereinafter referred to as the "B" and the "B" shall be jointly and severally liable to the "B" due to discharge the loans of the "B".

② Pursuant to Article 9 of the Business Convention, the Plaintiff paid the principal and interest of loans to a foreign exchange bank by subrogation.

[Grounds for recognition] The entry of evidence No. 5-2, the purport of the whole pleadings

C) Determination

Article 3(2) of the instant Business Convention provides that “If a buyer who received an intermediate payment as the intermediary of the Plaintiff delays the repayment of loan obligations, the Plaintiff shall immediately cancel the sales contract at the request of the foreign exchange bank (it shall be deemed to be a clerical error in the cancellation in light of the content of the instant sales contract, although the business agreement uses the term “the cancellation”, it shall be deemed to be a clerical error in the cancellation).” In the event that the Plaintiff cancels the sales contract, the above provision includes the content that the buyer disposes of the right to receive the refund of the purchase price already paid from the Plaintiff. In the event that the sales contract is cancelled, the above provision includes the content that the buyer disposes of the right to receive the refund from the Plaintiff. The above provision is established for the purpose of comprehensively settling the obligation and obligation arising between the Plaintiff and the foreign exchange bank as well as the third party including the buyer. Therefore, there is room

However, even if Article 3(2) of the Business Convention is deemed as contract for third party, in light of the following circumstances when comprehensively considering the business agreement of this case and the sales contract of this case, it cannot be deemed that the plaintiff bears the duty to cancel the sales contract of this case against the defendant 1 pursuant to Article 3(2) of the Business Convention, and it cannot be deemed as abuse of rights against the principle of good faith to claim compensation after the plaintiff made a substitute payment with the plaintiff's funds without cancelling the sales contract of this case. Accordingly, this part of the defendant 1's assertion is without merit.

① The purpose of the instant Work Convention is to preserve the intermediate payment loan claims against the buyers of foreign exchange banks. According to Article 3(2) of the instant Work Convention, when the foreign exchange bank requests the Plaintiff to cancel the instant sales contract, the Plaintiff is obligated to comply therewith. In addition, upon the cancellation of the instant sales contract, the Plaintiff is obligated to preferentially repay the sales price to be returned to the buyer’s loan to the foreign exchange bank (see Supreme Court Decision 2010Da48349, Dec. 9, 2010). However, there is no evidence to support that the foreign exchange bank demanded the Plaintiff to cancel the instant sales contract in this case.

② The obligation to repay the principal and interest of intermediate payments to a foreign exchange bank prior to moving into the instant apartment. However, if a buyer who fails to pay the principal and interest of intermediate payments to a foreign exchange bank pursuant to Article 3(2) of the instant business agreement claims the cancellation of the instant sales contract against the Plaintiff, the buyer who failed to perform the obligation prescribed in the sales contract would be able to escape himself from the contractual obligation against the intent of the seller who wants to maintain the sales contract.

③ In accordance with Article 9 of the instant Work Convention, the Plaintiff’s subrogation for the principal and interest of loans by Defendant 1 and claiming the amount of indemnity based thereon is to cause pain and damage to Defendant 1, and there is no interest to the Plaintiff, and thus constitutes an abuse of rights in violation of social order, or it is not sufficient to recognize it as an act in violation of the principle of good faith, as it is considerably unacceptable in light of the concept of justice, and there is no other evidence to acknowledge it.

3) Determination as to the assertion that the Plaintiff’s failure to cancel the instant sales contract constitutes abuse of rights

Although Defendant 1 asserted that it is abuse of rights that the Plaintiff did not exercise the right to rescission of the contract to Defendant 1 even though the Plaintiff had a long-term reason for rescission of the contract in this case, the Plaintiff’s failure to cancel the contract in this case is to cause pain and damage to Defendant 1, and there is no benefit to the Plaintiff, and thus constitutes abuse of rights that are contrary to social order, or is not remarkably acceptable in light of the concept of justice, and thus, it is insufficient to recognize it as an act contrary to the principle of good faith. The above assertion by Defendant 1 is without merit.

4) Determination as to Defendant 1’s assertion as to delay damages on the remainder of the contract

A)The assertion on the application of interest rates;

Defendant 1 asserts that, with respect to the Plaintiff’s claim for delay damages applying 15.96% per annum, which is the delay interest rate corresponding to “181 days or more for delay” as to the whole period of delay in the instant sales contract and the instant options contract, Defendant 1 shall apply the delay interest rate by dividing it by 10.96% per annum from 1 to 30 days, 13.96% per annum from 31 to 90 days, 13.96% per annum from 91 to 180 days, and 14.96% per annum from 91 to 180 days.

However, according to the contents of evidence No. 1-1, No. 3, and No. 2-1, and No. 3 of the sales contract of this case, Article 5(2) of the sales contract of this case provides that "if the buyer delayed the payment of the intermediate payment and the balance and the agreed payment date has passed due to the delay of the payment of the intermediate payment, the buyer shall pay the late payment penalty calculated by applying the late payment rate calculated by applying the highest interest rate of the deposit bank’s average credit rate and the household loan market share to the late payment period plus additional interest rate for each overdue period set by the highest bank." It is recognized that the above provision applies mutatis mutandis to the options construction contract of this case. When interpreting the above provision in accordance with the language of the contract, if the buyer delays the payment of the intermediate payment and the balance, the delay damages should not be calculated by adding up the late payment damages calculated by applying the late payment rate to the total number of days elapsed by dividing the late payment and the late payment by the late payment rate. Therefore, Defendant 1’s assertion is without merit.

B) The allegation about reduction

(1) Defendant 1’s assertion

The damages for delay stipulated in the instant contract for the sale in lots and the instant contract for the options construction agreement constitute liquidated damages for Defendant 1 to delay the obligation to pay the contract price. Considering the unique characteristics of the instant case and the fact that Defendant 1’s refusal to move in by Defendant 1, the Plaintiff’s false and exaggerated advertisement causing the situation where Defendant 1’s refusal to move in and delayed payment of the balance, etc. and the total amount of the agreed damages for delay incurred until the lapse of a long time, this portion of the damages for delay shall be considerably reduced in accordance with Article 398(2) of the Civil Act

(2) Determination

Article 398(2) of the Civil Act provides that the court may reduce the estimated amount of compensation in an unreasonably excessive case. Here, "unfairly excessive case" means cases where the payment of the estimated amount of compensation is deemed to result in the loss of fairness by imposing unfair pressure on the debtor in the position of the economically weak and causing the loss of fairness in light of the general social concept, taking into account all the circumstances such as the status of the creditor and the debtor, the purpose and content of the contract, the motive behind the scheduled amount of compensation, the estimated amount of compensation for damages, the ratio of the estimated amount of compensation to the amount of debts, the expected amount of damages, and the transaction practices at that time. In order to determine whether the estimated amount of compensation for damages is unreasonably excessive and the scope of reasonable reduction, the court shall take into account all the above circumstances arising between them as at the time of the closing of arguments at the fact-finding court (see, e.g., Supreme Court Decisions 92Da36212, Jan. 15, 1993; 209Da169614, Apr. 16, 199.

In addition, if the rate of damages for delay against the delay of the monetary obligation is separately agreed, it is a kind of liquidated damages, which is subject to reduction by Article 398 of the Civil Code (see Supreme Court Decision 9Da38637 delivered on July 28, 200).

In full view of the following circumstances, it is reasonable to reduce the Plaintiff and Defendant 1’s damages for delay on the sales contract of the instant case and the instant options contract of the instant case. The reduction shall be made by adjusting the agreed interest rate, thereby reducing the amount of liquidated damages as a whole. The fact that Defendant 1 agreed to pay damages for delay applying the rate of 15.96% per annum if the remainder payment is delayed for not less than 181 days in entering into the instant sales contract and options contract of the instant options contract, and that Defendant 1 agreed to pay damages for delay applying the rate of 15.96% per annum. The total damages for delay shall be reduced by means of restricting the rate of damages for delay due to the remainder payment of the contract of Defendant 1 by 6% per annum, taking into account the following circumstances, commercial statutory interest rate, and fairness in sharing damages:

① According to the statements and images of Eul's evidence Nos. 1 through 36 (including each number in case of additional numbers), changes in circumstances are recognized that most of the planned development projects of Yong-do, which the plaintiff advertised at the time of entering into the instant sales contract, were nonexistent, and the infrastructure of the apartment of this case is weak.

② At the time of the occupancy of the apartment in this case, the buyers of the apartment in this case including Defendant 1 had the awareness that the sales contract should be cancelled and cancelled by deception or mistake as a matter of infrastructure facilities of the apartment in this case. The majority of buyers including Defendant 1 had a long legal dispute over the validity of the sales contract. The legal dispute in this case was concluded upon the conclusion of the relevant judgment prior to November 6, 2015 (the fact that there was no dispute, the entry of No. 40, and the purport of the whole pleadings).

③ In the above related judgment, the Plaintiff was found to have placed a false or exaggerated advertisement about the third year landing bridge at the time of entering into a sales contract with the buyer, and the Plaintiff was liable for damages equivalent to 5% of the sales price to the majority of the buyers of the apartment of this case (including Defendant 1).

④ In light of the above circumstances, even if Defendant 1, who was the Plaintiff of the above related judgment, did not deny the validity of the sales contract in the related judgment, there were circumstances under which the effect of the sales contract in this case was doubtful until the expiration of the above legal dispute, and the Plaintiff’s false and exaggerated advertisements were one of the causes for the refusal of payment of the large sum balance by the buyers including Defendant 1.

⑤ As of April 7, 2016, the date of the closing of argument in the instant case, the principal of the sales contract in this case and the remainder of the options construction contract in this case by Defendant 1 was KRW 108,932,00 (i.e., the remainder of the sales price of KRW 9,630,000 + the remainder of the option construction cost of KRW 9,302,00). On the other hand, the agreed damages for delay amounting to KRW 56,824,541 (=108,932,000 + 15.96% x 15.96% x 15.96% from January 1, 2013 to April 7, 2016)

(6) The agreement on damages for delay in the instant sales contract shall be deemed to have been agreed upon by Defendant 1 on the premise that normal sale procedure was conducted. It cannot be deemed that Defendant 1 consented to the determination of damages for delay in the event that there was Plaintiff’s false or exaggerated advertisement in the process of concluding the instant sales contract.

7) The Plaintiff’s damages caused by the delay in the payment of the remainder by the buyer can be compensated even after adjusting the rate of damages for delay at an appropriate level. If the Plaintiff’s damages for delay in the payment of the remainder exceeds the Plaintiff’s damages are recognized as it is, the Plaintiff, who is the economically weak, gains additional profits based on the delay in the performance of the buyer’s damages, and thus, is unjust in terms of the equitable sharing of damages.

5) Determination as to Defendant 1’s assertion as to the amount of settlement and claim for reimbursement

A) Defendant 1’s assertion

Defendant 1 did not agree to the Plaintiff’s payment of the principal and interest of the intermediate payment to his foreign exchange bank. Defendant 1’s cancellation of the instant sales contract, and it is more favorable for Defendant 1 to appropriate the Plaintiff’s payment of the said loan for the payment of the intermediate payment already paid by Defendant 1. The Plaintiff is not the trustee, and the scope of Defendant 1’s reimbursement should be reduced. The detailed contents

① Since the Plaintiff becomes a guarantor against the will of the principal obligor, it is sufficient for Defendant 1 to compensate to the extent of the existing interest. Defendant 1 did not directly receive an intermediate payment loan. Defendant 1 did not make any payment contrary to Defendant 1’s intention, and Defendant 1 would not have any existing interest on the ground that Defendant 1 did not bear the principal and interest of the loan to a foreign exchange bank because, if the Plaintiff had subrogated to refund of the parcelling-out payment due to the cancellation of the instant parcelling-out contract without making any payment contrary to Defendant 1’s intention and extinguished, Defendant 1 would have not paid any more to the foreign exchange bank. Accordingly,

② Even if the Plaintiff is not a guarantor against the intent of the principal obligor, it constitutes “a person who becomes a guarantor without the request of the principal obligor” under Article 444(1) of the Civil Act. Therefore, Defendant 1 is liable to compensate to the extent he has received the benefit at the time of subrogation, and the Plaintiff cannot respond to the statutory interest and delay damages claim other than the principal amount upon the date of discharge.

(3) Since a claim for indemnity is a claim with no fixed due date, Defendant 1, the obligor, is liable for delay from the time of receiving a claim for performance under Article 387(2) of the Civil Act. Therefore, the Plaintiff is only entitled to claim damages for delay from the day immediately after the date of claiming the amount of indemnity, and cannot claim damages for delay from

B) Determination

Whether the Plaintiff is a trustee, and whether the guarantor is a guarantor without the request of Article 444 of the Civil Act. In addition to the purport of the entire arguments as stated in the evidence No. 1-1 and No. 3, it is recognized that the Plaintiff arranged part payments only when the buyer applied for part payments loan, and the buyer who does not wish to do so could have paid part payments and balance in cash that he/she received or owns through other financial institutions than financial institutions arranged by the Plaintiff. <2> The Plaintiff provided convenience to the buyer who consented to part payments in advance on the condition of subsequent settlement, on condition that the interest on part payments would be settled. In light of the above facts, it is very exceptional that the bank extended the amount equivalent to the part payments without any physical security from Defendant 1 who is the borrower under transaction practice, it is reasonable to expect that personal security, such as the joint guarantor, exists, and it is also reasonable to view that the Plaintiff’s joint and several surety’s loan was made by subrogation after the Plaintiff’s request for payment of interest. Furthermore, it is reasonable to deem the Plaintiff’s payment of part payments after his/her joint and several payment contract.

After all, the plaintiff shall be a trustee guarantor, and even if a trustee's claim for reimbursement is not fixed due to the due date, the trustee guarantor may seek legal interest after the exemption is made pursuant to Articles 441(2) and 425(2) of the Civil Act. Thus, the defendant 1's above assertion on the premise that the plaintiff is not a trustee guarantor is rejected.

C. Sub-committee

Defendant 1 shall pay to the Plaintiff 342,225,761 won (i.e., balance of 9,630,00 won + 9,302,00 won plus aggregate of 233,293,761 won) and ① 108,932,000 won (=the balance of 9,630,000 won + the balance of 9,302,000 won + the balance of 9,302,000 won) calculated at the rate of 15.0% from the date following the end of the occupancy designation period, which is the due date, to 20.3% of the total amount of 15% of the total amount of 30% of the total amount of 19,630,000 annual interest rate from the date following the due date of this judgment, to 25.3% of the total amount of 9% of the total amount of 15,015,000 won of the intermediate payment, etc.

3. Determination on the Plaintiff’s claim against Defendant 2

A. According to the above facts, Defendant 2, who succeeded to the status of the buyer of the instant apartment △△△△△△△△△△△△△, is obligated to pay to the Plaintiff the remainder of the purchase price of the instant apartment, the instant options contract, the intermediate payment principal and interest of the loan, and the liability for reimbursement and settlement of the principal and interest of the intermediate payments (=the remainder of KRW 100,610,610 + the balance of the options construction cost of KRW 9,302,00 + the balance of the options construction cost of KRW 9,300 + the balance of the options construction cost of KRW 231,042,359) and the legal interest or delay damages therefrom

B. We examine Defendant 2’s delayed payment of the sales contract of this case and the remainder of the options construction contract of this case.

As seen earlier, the fact that the contract for the sale in this case and the contract for the option construction work of this case constituted an estimate of damages for Defendant 2 to delay the obligation to pay the contract price, and where the amount of damages is unreasonably excessive, the court may reduce it ex officio without any allegations by the parties (see Supreme Court Decision 2000Da54536, Dec. 24, 2002, etc.).

As of April 7, 2016, the date of the closing of argument in the instant case, Defendant 2’s remainder of the contract as of April 7, 2016 (i.e., the balance of KRW 100,610,00 + the balance of the option construction cost of KRW 9,302,00). However, in the instant case, the agreed delay damages amounting to KRW 57,335,760 (i.e., 109,912,00 x 15.96% x 15.96% x 15.96% x 201,193/365, and less than KRW 52% from January 1, 2013), it is reasonable to reduce the remainder of the contract between the Plaintiff and Defendant 2 by taking account of the following:

The reduction shall be made by adjusting the agreed rate of damages for delay to reduce the estimated damages as a whole. The agreement to pay damages for delay calculated by applying the rate of 15.96% per annum in the event of delay in the payment of the remainder at the time of concluding the sales contract and the options construction contract for the apartment △△△dong △△△△△△△△△△△△, the agreement is made to pay damages for delay with the rate of 15.96% per annum, as seen above. However, the total damages for delay shall be reduced by limiting the rate of damages for delay due to delay in the payment of the balance under the contract of Defendant 2

C. Therefore, Defendant 2 is liable to the Plaintiff for the remainder of KRW 100,610,00 + 231,042,00 + total of the balance of options construction costs plus KRW 231,042,359) and (1) of the remainder of 109,912,000 + the remainder of 100,610,000 + the remainder of 100,610,000 + the remainder of 9,302,000 + the remainder of 9,300,000 annual interest rate from the date following the end of the occupancy designation period which is the due date to the Plaintiff; (2) to the 20-day interest rate from January 1, 2013 to the 20-day interest rate of KRW 25,000,000, which is the 20-day interest rate of KRW 205,000,000,000,000.

4. Conclusion

Therefore, the plaintiff's claim against the defendants is justified within the scope of the above recognition, and the remaining claims are without merit, and they are dismissed. It is so decided as per Disposition.

Judges Maximum Weather (Presiding Judge) Ethical ethical ethic

1) It is the date of the final subrogation.

2) The Plaintiff’s overdue charges, etc. accrued from the following month of the month in which the date of usage inspection falls to the date of subrogation.