2017Na66819 Money

1. A;

2. B

C

Seoul Central District Court Decision 2016Da122407 Decided September 7, 2017

March 14, 2018

April 4, 2018

1. Of the judgment of the first instance court, the part against the defendant in excess of the amount ordered to be paid below is revoked, and the plaintiff B's claim corresponding to the revoked part is dismissed

The defendant shall pay to the plaintiff B 40 million won with 5% interest per annum from July 13, 2009 to April 4, 2018, and 15% interest per annum from the next day to the day of complete payment.

2. The defendant's remaining appeals against the plaintiff B and the plaintiff A are dismissed, respectively.

3. Of the total litigation costs incurred between the plaintiff B and the defendant, 10% of the total litigation costs shall be borne by the plaintiff B, and 90% by the defendant respectively.

The defendant shall bear the costs of appeal between the plaintiff A and the defendant.

1. Purport of claim

The defendant shall pay to the plaintiff A money of KRW 38,00,000 and its equivalent from August 29, 2008, and from July 22, 2008, 45,000,000 from July 22, 2008 to the service date of a copy of the application for modification of the claim and the cause of the claim in this case, 5% per annum, and 15% per annum from the next day to the day of full payment.

2. Purport of appeal

Among the judgment of the first instance court, the part against the defendant is revoked, and the plaintiffs' claims corresponding to the revoked part are dismissed, respectively.

1. Quotation of judgment of the first instance;

The reasons for this court are as follows: "Plaintiff B, on July 17, 2008, KRW 50 million; KRW 45 million; and Plaintiff B, on July 22, 2008, KRW 40 million; and Plaintiff B, on July 22, 2008, deleted the "No. 4-2" and "No. 14-1-3", respectively; "No. 5 10-2" and "No. 14-1-3 of the first instance court's first instance court's first instance court's first instance court's second instance court's second instance court's second instance court's second instance court's second instance court's second instance court's second instance court's second instance court's second instance court's second instance court's second instance's second instance court's second instance's second instance's second instance', "No. 5 19-2" and "No. 298-2, second instance court's second instance court's second instance court's second instance's second appeal's second appeal's second appeal's second appeal.

2.3 The Enforcement Decree of the Housing Act (amended by Act No. 9405 of March 2, 200) is the 12th Enforcement Decree of the Housing Act.

(No. 21 of April 21, 2009). Each of the 8 pages 3) is referred to as "members", "the interest rate of members" is referred to as "the member", "the plaintiff of 10 pages 11, 15 and 19" is referred to as "the plaintiff of 10 pages 10, 15, and 19", and except for dismissal or addition as follows, it is identical to the reasons of the first instance judgment, and therefore, it is cited as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Parts used or added;

O The decision of the first instance court 2 pages 14 was paid. The following shall be added.

According to the evidence of evidence Nos. 5,00,000 won, Plaintiff B, on July 17, 2008, paid in cash to the Defendant. According to the evidence Nos. 4-1, 11, and 14, Plaintiff B, on July 17, 2008, deposited KRW 5,000,000 from the Nong BankU account in one’s name, and on the criminal facts of the non-prosecution decision against Defendant, etc., Plaintiff B, on July 17, 2008, stated that “the sum of KRW 40,000,000,000 was remitted to the Defendant’s Bank account in one’s name,” but there is no evidence to acknowledge the above facts, and there is no reason to acknowledge the above facts. The Plaintiff’s assertion is without merit.”

O Decision 3 pages c) of the first instance court shall be subject to the following parts:

(C) The plaintiff A prepared a “mutual investment agreement note with the defendant,” and received a “certificate of application for joining” and “certificate of waiver” from the defendant, and the matters related to this case in each of the above documents are as follows:

The amount of mutual investment agreement : 38,000,000 won investor 1: Defendant 1. The said investor will make an investment in 50/100 of the investment amount respectively.2. The object of the investment shall be W W.3. The sale shall be made in the amount agreed upon by both parties.4. The document custody shall be kept by the investor 1.5. The sale shall be collected 50/100 respectively (the necessary expenses, such as commission and transfer of title, shall also be borne by 50/100).

No Name of the Certificate of Application for Subscription: Defendant applicant Form 32: 30,000,000 Won verify that the applicant is a member of the K Housing Association. On July 11, 2008, the representative director of the K Housing Association implementing Agency shall J on July 11, 200

Defendant 2. The location of confirmation of the membership status of the member of the regional housing association: Defendant 2. The name of the member of the Housing Association in Dongjak-gu Seoul Metropolitan Government: No 3. The basic member of the agreement agreed on July 22, 2008 to waive all the rights of the above goods as part of the confirmation of the membership status of the member of the Housing Association in the above indication, and thereafter, written an agreement to raise no objection on the above goods, and to make it sure on the later date. The Defendant M& corporation, the above agreement on July 22, 2008.

O The following shall be added to the lower line of 12 pages 9, 12, and 9 of the first instance court judgment:

According to the results of fact-finding on the head of the housing association in this case, 116 members were all at the time when the housing association in this case was authorized to establish the housing association. Of them, 8 members were all at the time of withdrawal, 108 members were all at present. The housing association in this case is 25 members, and the head of Dongjak-gu was at the time of establishment of a district unit plan on the implementation of the housing construction project in Dongjak-gu Seoul X, etc. on January 18, 2018. However, under the agreement in this case, the following circumstances recognized by the purport of records and arguments, i.e., ① the obligation to be borne by the defendant against the plaintiffs in this case, i.e., the number of members of the housing association in this case at the time when the plaintiff and G were authorized to establish the housing association in this case, ii) the scheduled number of members of the housing association in this case was changed to 20 years or less, and 3) the scheduled number of members of the housing association in this case was changed to 2.

Article 40(1) of the Housing Association Act [see Article 40(1) of the Act before wholly amended] In light of the fact that the housing association of this case did not apply for the approval of a project plan until eight years and eight months have passed since the authorization was obtained on July 13, 2009, and the fact that it is difficult to deem that there is a direct relation between the decision of the head of Dongjak-gu Office’s urban management plan (district unit planning) and the approval of the project plan of the housing association of this case, the above fact alone is insufficient to reverse the judgment that the agreement of this case was made impossible finally and conclusively, and

O The following shall be added to the lower limit of 10 pages 10, 100:

"The defendant, although he could join the housing association of this case by the law such as the application for joining the housing association at the time of authorization for the establishment of the housing association of this case, he did not transfer his membership status to a third party or gain market profit. Thus, the plaintiffs' claim for damages against the defendant under the damage guarantee agreement of this case should not be allowed as an abuse of rights against the good faith principle. However, there is no evidence to acknowledge it, the defendant's claim is without merit."

O Decision 11 (d) of the 11th instance judgment shall be made with the following parts:

“The Defendant shall pay to the Plaintiff A 38,00,000 won and the delay damages calculated at the rate of 5% per annum from July 13, 2009, which is the date of the execution of the instant agreement, until September 7, 2017, the date of the judgment at the court of first instance, which is deemed reasonable for the Defendant to dispute as to the existence of the obligation or the scope thereof, until September 7, 2017, and 15% per annum from the following day to the date of full payment. ② The Plaintiff B shall be liable to pay to the Plaintiff 40,000,000 won and the delay damages calculated at the rate of 15% per annum from the date of the execution of the instant agreement, which is the date of July 13, 2009, which is deemed reasonable for the Defendant to dispute as to the existence or scope of the obligation.

shall pay damages for delay calculated at the rate of 15% per annum.

3. Conclusion

The claim of the plaintiff A shall be accepted on the ground of its reason, and the claim of the plaintiff B shall be accepted on the ground of its reason within the above recognition scope, and the remainder shall be dismissed on the ground of its reason. Since the part against the defendant who ordered payment in excess of the above recognition amount for the plaintiff B among the judgment of the court of first instance is unfair on the ground of its conclusion, it is revoked, and the plaintiff B's claim corresponding to the revoked part is dismissed, and the remaining appeal against the plaintiff B and the appeal against the plaintiff against the plaintiff

The number of judges transferred to judges

Judges Suspension Line

Judges Han Jae-sung