(영문) 서울고등법원 2013.5.31.선고 2012나4963 판결

1. In accordance with the change of claim and succession participation in the trial at the trial, the defendants jointly and severally pay to the plaintiffs, the plaintiffs, the plaintiff (ex officio), the Korea Asset Management Corporation, and the Korea Asset Management Corporation of savings banks as one of the mutual savings banks that succeeded to a savings bank, the plaintiff (ex officio), and the plaintiff (ex officio), the Korea Asset Management Corporation, the successor to the Savings Bank, the Korea Asset Management Corporation, and the plaintiff (ex officio), the successor to the Savings Bank, the Korea Asset Management Corporation, the bankrupt successor to the Korea Asset Management Corporation, the amount of the claim column

2. The total costs of the lawsuit are borne by the Defendants.

3. Paragraph 1 can be provisionally executed.

Purport of claim and appeal

The judgment of the court of first instance is revoked. The judgment identical to the judgment of the court of first instance (the plaintiff and the intervenor succeeding to the plaintiff changed the claim in exchange for the claim in the trial) (Partial claim).

Reasons

1. Progress of the instant Brazil and project agreement

A. Citcoa Co., Ltd. (hereinafter referred to as “Citcocoa”) promoted the project to newly construct and sell apartment units (hereinafter referred to as “the implementation project of this case”) on the one-day land of 378-1 (hereinafter referred to as “the project site of this case”) in both weeks.

B. On October 22, 2007, Stico entered into a construction contract under which the construction work for new apartment construction is awarded to Defendant Daesung-dong Co., Ltd. (the trade name at the time was the Daesung Industrial Co., Ltd.; hereinafter referred to as the “Defendant Daesung-dong Co., Ltd.”) and the construction work for the instant implementation project (hereinafter referred to as the “instant contract”). According to the instant contract, Defendant Daesung-dong Co., Ltd was responsible for the creation of the hybrid fund for the payment of the land price for the instant project site, the loan work for the project necessary for the instant implementation project, and the support work for the authorization and permission of the instant implementation project.

C. On February 28, 2008, the Plaintiffs and mutual savings banks (hereinafter referred to as the “Plaintiffs”) entered into a Brazil loan agreement with the Plaintiff on February 28, 2008 to secure the project site of this case. The lending period of Brazils is one year, the agreed interest rate is 10% per annum (25% per annum), and 5% of the loan amount is added in addition to the agreed interest rate. The Plaintiffs Grand Group entered into a business agreement with the Plaintiff, as of the same day, to promote the implementation project of this case (hereinafter referred to as the “project agreement”). Accordingly, the support business related to the authorization and permission of the implementation project of this case giving Defendant Daesung and the administrative affairs related thereto, and the obligation to pay for the project loan of this case under certain conditions (hereinafter referred to as the “project loan”).

D. Since Citrocco could not repay the Brazil loan until the loan maturity, the plaintiffs' lender had extended the loan maturity on two occasions by June 5, 2010, but Citrocco still failed to repay the Brazil loan, and until now, the business loan of this case has not been implemented.

E. On June 30, 2010, Defendant Daesung Industrial Co., Ltd. was partially divided and established in Defendant Daesung Branch Co., Ltd.

F. On June 30, 201, the Plaintiff (Withdrawal) Mutual Savings Bank, the Savings Bank, and the Ko Savings Bank, one stock company, transferred the Plaintiff’s credit to the Plaintiff’s Intervenor’s Intervenor’s Intervenor’s Korea Asset Management Corporation on June 30, 201. The Plaintiff’s credit to the Plaintiff’s Intervenor’s Intervenor’s Intervenor’s Intervenor’s Intervenor’s Intervenor’s Intervenor’s Intervenor’s Intervenor’s Intervenor’s Savings Bank was transferred to the Korea Asset Management Corporation on January 13, 2012 according to the Financial Services Commission’s decision on the transfer of the loan to the Korea Asset Management Corporation. On July 12, 2012, the Korea Asset Management Corporation (Withdrawal) transferred the relevant portion of the loan credit against the Plaintiff’s Intervenor’s Savings Bank to the Korea Asset Management Corporation.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1 through 4, 8, 9 (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Determination as to the cause of action

A. Facts of recognition

1) On February 28, 2008, the Plaintiffs and executive officers of the Plaintiffs, Citcoia, and Defendant Daesung, a Sin-si Corporation, concluded the instant business agreement.

2) The following facts do not conflict between the parties, or may be acknowledged by comprehensively considering the overall purport of the pleadings in the entries in Gap evidence Nos. 3, 5, 6, 7, 28, 29, 30, 42, and 43:

A) Article 8.1 of the instant business agreement is completed at least 94% of the project site on the basis of the area after the Brazil loan, and when it is possible to obtain approval of the housing construction project plan as designated and publicly notified as Class 2 general residential area, the instant business loan should be implemented with respect to the instant project implementation project, under the responsibility of Defendant Daesung and Defendant Daesung, with respect to the instant project implementation project. Article 8.2 stipulates that the instant business loan will be repaid preferentially with the instant business loan, and Article 8.3 stipulates that the instant business loan will be purchased in full without delay, even though the conditions prescribed in Article 8.1 are met, if the instant business loan is not implemented on the responsibility of Defendant Daesung due to the fulfillment of the conditions prescribed in Article 8.1.3.

B) On March 3, 2008, Defendant Daesung consented to the alteration of the area to 20,232.61 square meters, excluding “one day profit-making 139-20, 139-1, and 139-17” in the list of business sections (based on private land) under the business agreements between the Plaintiffs Daesung and the instant business agreements.

C) By March 5, 2008, Citcoia concluded a sales contract for 94% of the project site size changed as above.

D) On February 19, 2010, the Governor of the Gyeonggi-do designated and publicly notified the instant project site as Class I general residential area (Conditionally, after deliberation on the establishment of a multi-family housing construction plan).

E) On February 25, 2011, Citcoia proposed a change of a district unit plan to change the instant project site into a Class-II general residential area in the form of a resident proposal from the two major cities. Thereafter, following the determination of modification of an urban management plan in the two major cities, the deliberation of the Gyeonggi-do Joint Committee on Urban Planning and Building, the decision on the end of the Gyeonggi-do subcommittee, etc., the Gyeonggi-do Governor finally designated and publicly announced the instant project site (excluding part of the project site) as a Class-II general residential area.

B. Determination

1) The meaning of Article 8.3 of the instant business agreement is to be interpreted as concluding a contract for sales of claims with the content that, if the instant business loan is not implemented to repay the entire principal and interest of loan pursuant to the Braziln loan agreement within two months from the time the requirements for implementing the instant business loan were met, Defendant Daesung’s share owner purchases the principal and interest of loan from the Plaintiffs Daesungn Group in an amount calculated by adding the principal and interest of the loan to the principal and interest of Citco pursuant to the Braziln loan agreement.

In addition, according to the text and text of Article 8.1 of the instant business agreement, it is reasonable to view that the instant business loan agreement has been fulfilled as follows: ① “the land contract will be completed at least 94% of the instant business site; ② “the approval of the housing construction project plan will be possible due to the designation and public announcement as Class 2 general residential area; ③ “the instant business loan agreement will not be concluded to repay the total amount of loan and interest of hybrid loan within 2 months from the time when the instant business is possible” as above. In this case, it is reasonable to view that the instant conditions have been fulfilled (i) around December 21, 2012 designated as Class 2 general residential area; ② the designation and public announcement of Class 2 general residential area was not made for the entire business site at the time of the instant business agreement; and (ii) the instant conditions have not yet been fulfilled; and (iii) the instant assertion has not yet been satisfied.”

2) Therefore, since the Defendants did not implement the instant business loan from December 21, 2012, which was designated and announced as Class II general residential area, until February 21, 2013, the period from December 21, 2012, when the instant site was designated and announced as Class II general residential area, the Defendants are jointly and severally liable pursuant to Article 8.3 of the instant business agreement and Article 530-9(1) of the Commercial Act to pay to the Plaintiffs 1 through 6 and the Intervenors succeeding to the Plaintiff (hereinafter “Plaintiffs, etc.”) an amount in the column of the claim amount indicated in the detailed statement on the principal and interest payment statement, which the Plaintiffs, etc. seek, as the purchase price of the instant loan

3. Determination as to the defendants' defense disputes

A. Summary of the argument

1) For the following reasons, the terms of this case became final and conclusive, and thus does not cause the Defendants’ obligations.

A) The Defendants’ duty to implement the instant business loan is an obligation to incidental to the redemption of the Brazil loan, and its term is “one year from the date of execution of the loan, which is the due date of the Brazil loan.” The instant project site was not designated and publicly notified as the Class II general residential area by the due date of the Brazil loan.

B) “Designation and Public Notice of Class 2 General Residential Area” constitutes the suspension conditions for the instant business loan, and the Defendants had the duty to implement such conditional business loan. However, the Gyeonggi-do Governor designated and publicly announced the instant project site as Class 1 General Residential Area on February 17, 2010, and thus, the instant conditions were finalized.

2) Even if the non-performance is not confirmed, the condition of this case has not yet been fulfilled for the following reasons.

A) In order to fulfill the instant condition, designation and public notice of the Class 2 general residential area should be given to the entire project site at the time of the instant project agreement. However, the consent of Defendant Daesung’s owner to partially alter the instant project site was merely the consent to exclude the instant project site from the land subject to purchase with the intent to exercise the right to demand sale, and did not consent to reduce the instant project site, and designation and public notice of Class 2 general residential area as of December 21, 2012 was partially excluded from the instant project site, and thus, the instant condition was not fulfilled.

B) In order to take place the obligation to implement the instant project loan, separate requirements such as “when it is possible to receive the approval on the housing construction project” have not been satisfied.

B. Determination

1) Whether the instant condition was not established

A) First, we examine whether there exists the due date for the Defendants’ obligations under the instant conditions (negative). In full view of the written evidence No. 3 and the purport of the entire pleadings in the testimony of the witness B, the fact that the two weeks initially implemented designation and public notice of the Class 2 general residential area for the entire project site in accordance with the 2020 Basic Urban Planning Act, and the public official in charge was also designated and public notice within the several months, and the fact that Article 3.2 of the instant project agreement provides for the loans of the heading loan period of one year.

However, in full view of the following circumstances that are acknowledged by adding up the purpose of the entire pleadings to the statements in Gap evidence 3, 21, and 25 and witness Eul's testimony, it is difficult to view that the occurrence of the obligation to implement the instant business loan was the due date, and there is no other evidence to acknowledge it otherwise.

① Article 8.1 of the instant business agreement provides that if there are “the completion of land contract,” “the designation and public notice of Class II general residential area,” etc., the business loan of this case shall be implemented on the responsibility of the Defendants, and there is no separate deadline to implement the business loan of this case.

② During the process of the formation of the instant business agreement, the part “before the maturity of this case’s loan” was deleted at the request of the Plaintiff Matz Comprehensive Financial Securities Co., Ltd. (hereinafter “Plaintiff Matz money”) and the provision was newly established regarding “the obligation to pay the purchase price due to the purchase of principal and interest of loan on the Defendant’s Matz loan.”

③ Article 9.1 of the instant business agreement provides that “only if the total amount of principal and interest of Brazil is repaid,” the instant business agreement is valid until the total amount of Brazil is repaid.

Therefore, we cannot accept the defendants' assertion that the due date for the repayment of the business loan of this case was set on the duty to implement the business loan of this case.

B) Next, we examine whether the non-performance of the conditions becomes final by the designation and public notice as Class 1 general residential area (negative)

(1) On February 19, 2010, the fact that the Governor of the Gyeonggi-do designates and publicly notifies the instant project site as a Class-I general residential area is as seen earlier.

However, in light of the following circumstances, it is difficult to view that the non-performance of the instant conditions was immediately determined solely on the designation and announcement of Class 1 general residential area as of February 19, 2010, in view of the descriptions of evidence Nos. 6, 17, 31, 36, 37, and 41 as well as the testimony of the witness A, taking into account the overall purport of the pleadings. ① The Governor of the Gyeonggi-do, while determining the instant project site as Class 1 general residential area, added the condition that the instant construction plan was formulated by deliberation.

The developments leading up to the designation and public announcement of the above conditional Class 1 general residential area are as follows: (a) considering the circumstances at the time when the two main markets were drafted directly from the planned management level of the urban area and could not establish the three-dimensional facility plan for the buildings, the specific use area is adjusted to Class 1 general residential area; (b) the three-dimensional facility plan for the building location for the alteration to Class 2 general residential area; and (c) the building-to-land ratio and building volume ratio of the building are formulated for the alteration to Class 1 general residential area; and (d) the multi-dimensional facility plan for the building site to increase the specific use area through deliberation by the Gyeonggi-do Joint Committee (Urban Planning and Construction) (see the details of deliberation by the Gyeonggi-do Joint Committee on August 3, 2012).

In the end, the meaning of the conditional termination is that it will be converted to the future conditions if the conditions are met, but it is necessary to undergo a deliberation again for the end of the future.

② Meanwhile, “Procedures for the formulation of a multi-family housing construction plan” refers to the procedure that prepares and implements various design drawings, such as internal plane design and structural design. In order to implement the above procedure, the Defendants’ cooperation is necessary. Therefore, in light of the contents of the deliberation by the Urban Planning and Building Committee, if the Defendants cooperate with Cicoia, it could be more easy to make a final decision to the Class II general residential area ( even based on the instant contract and the project agreement, Defendant Daesung will take charge of support for the authorization and permission of the implementation project of this case).

③ In fact, in the case of “Yyang-ju-Yak-gu in the vicinity of the instant project site,” it was designated and publicly announced as a Class-I general residential area on January 6, 2010, but thereafter, it was determined to be designated and publicly announced as Class-II general residential area on August 2, 201 through the residents’ proposal on October 201.

Therefore, it cannot be concluded that the designation and public notice of the above conditional Class 1 general residential area alone was conclusive, and therefore, the defendants' arguments on this issue are not accepted. (2) The defendants asserted to the purport that considering the following: ① the risk assessment of this case was conducted by the Plaintiffs Group, Q high interest rate, and the plaintiffs, etc. should bear the risk of authorization and permission of the business agreement in this case, namely, the risk of non-performance of the terms of this case, and the risk of this case was actually designated and public notice of the business site in this case as Class 1 general residential area. However, even if there were circumstances that set higher interest rate and handling rate as argued by the defendants, it cannot be deemed that the plaintiffs, etc. should bear the risk of the implementation project in this case, and since the testimony by the witnesses alone, it is insufficient to deem that the risk was assessed by the Plaintiffs Group and that the risk was borne by the evaluation of the implementation project in this case. Therefore, this part of the defendants' assertion cannot be accepted.

2) Whether the instant condition has been fulfilled

A) We examine whether the instant project site was “public notice of the designation of a Class 2 general residential zone as stipulated in the instant project agreement for the instant project site” (affirmative). The Defendants asserted that the designation and public notice of a Class 2 general residential zone as stipulated in the instant project agreement means only the designation and public notice of a Class 2 general residential zone for the entire project site, but cannot be accepted for the following reasons.

(1) On the basis of professional and technical judgment on urban policy, an urban management plan is a discretionary act that sets up an activity standard to realize certain order at a certain point in the future by integrating and coordinating administrative means related to each other in order to achieve specific administrative goals such as construction, maintenance, and improvement of an urban area. According to the evidence No. 1, “The outline of construction can be changed in the future in the course of authorization and permission based on the drawings presented in Citcoia at the time of project participation” in Article 3(1) of the instant contract for construction work. “Subject matter of construction work” in Article 2(1) of the contract for construction work is subject to construction work under Paragraph 2.

Article 6(2) of the same Act provides that "The unit cost per deliberation under the preceding paragraph shall be changed if the total floor area of the construction is changed, and the construction cost shall be changed by multiplying the changed total floor area by the construction cost per deliberation under paragraph (1) of this Article."

In full view of the legal nature of the above urban management plan and the contents of the contract of this case, it is reasonable to deem that Defendant Daesung was aware of the possibility of changing the project site of this case from the beginning.

(2) Comprehensively taking into account the written evidence Nos. 24 and 25, in the initial business agreement, the part of “in excess of 90% of the project site area” was deleted at the request of Plaintiff Qiz money to be “in excess of 90% of the project site area” can be acknowledged as having concluded the instant business agreement. Examining the process of concluding the business agreement, considering that the entire project site in the instant case may not be designated and publicly notified as Class-II general residential area, it appears that the instant business agreement was concluded in view of the fact that the entire project site in the instant case may not be designated and publicly notified as Class-II general residential area.

(3) According to the statement in the evidence No. 29, Article 29(1) of the instant contract provides that, if the profitability of the instant project becomes worse as the project site is reduced due to the change of the project site, the Defendant Grand Sung-si owner may terminate the instant contract (However, even if such cause arises, the amount borrowed from the Plaintiffs Grand-si Group shall be repaid with the top priority).

However, Article 9.1 of the instant business agreement provides that the agreement shall be terminated only in cases where the total amount of principal and interest of the Brazil is repaid, and no provision exists to allow the Defendants to terminate the instant business agreement on the ground that the profitability aggravation of the instant implementation project is worse.

Therefore, the assertion that the business feasibility has deteriorated due to the designation and announcement of the instant project site as Class II general residential area without partial exclusion is not a justifiable ground for the Defendants to prevent the Defendants from taking responsibility for implementing the instant project loan (On the other hand, according to the overall purport of Gap evidence Nos. 30, 41, 43, Eul evidence Nos. 1 and evidence Nos. 1, 2012, Dec. 21, 2012, the area designated and announced as Class II general residential area (18,75.03 square meters) falls under 86% of the project site area under the instant project agreement (21,741.37 square meters). Thus, it is difficult to readily conclude that Defendant Daesung (i.e., the total area of the instant project site falling under approximately 139-20, 139-1, 139-17, 139-17, 1064).

Therefore, it is reasonable to view that the Gyeonggi-do Governor’s designation and public notice of Class 2 general residential area among the instant conditions was fulfilled as well as the designation and public notice of Class 2 general residential area except for part of the instant project site on December 21, 2012.

B) Next, we examine whether “when approval for a housing construction project plan is received” is one of the separate requirements that constitute the instant conditions (negative). The Defendants’ assertion that “when approval for a housing construction project plan is received for the following reasons” is not acceptable.

(1) The following facts can be acknowledged in full view of the purport of the entire pleadings in the statements in Gap evidence Nos. 21 to 25, 32.

① The phrase “when the approval of the project is received” in the initial project agreement was changed to “when the approval of the project is possible at the request of the Plaintiff’s Matz.”

② During the process of preparing the instant project agreement, the legal advice, which was a common legal advice between the Plaintiffs’ Group and the Defendant Daesung, had the opinion that “If the project site indicated in the land protocol is completed by more than 95% and the cadastral notice is completed as a Class II general residential area, it is understood that the approval of the housing construction plan can be accepted if all of the conditions on the premise that the said two conditions are completed.”

(2) Article 16(1) of the Housing Act provides that "a person who intends to implement a housing construction project of more than the number of housing units prescribed by Presidential Decree or a person who intends to implement a housing site development project of more than the size prescribed by Presidential Decree shall submit an application for approval of a project plan to a person who has obtained approval of a project plan and obtain approval of a project plan by submitting the following documents to the person who intends to obtain approval of a housing construction plan pursuant to paragraph (1) or (3), including the plot of housing and its appurtenant facilities and welfare facilities, and design drawings and specifications for the housing site development project," and Paragraph (4) of the same Article provides that "a person who intends to obtain approval of a housing site construction project plan pursuant to paragraph (1) or

(3) Comprehensively taking into account the evidence Nos. 3 and 1 evidence, Article 4.2 of the instant project agreement’s business agreement’s acquisition and maintenance of authorization and permission necessary for the instant implementation project; (c) and Article 4.3 of the instant project agreement’s business support related to the authorization and permission and the administrative affairs of the Daesung as the Defendant Daesung’s business; and (b) pursuant to Article 10(2) of the instant contract’s agreement, the internal plane design and structure design for multi-family housing are provided for “the selection of the company designated by the Defendant Daesung’s owner by actively reflecting the Defendant Daesung’s opinion when preparing the drawings for deliberation and approval of the project plan.” Thus, the obligation to implement the preparation procedure for the housing construction project corresponds to the obligation of the Defendant Daesung’s land owner, not the Plaintiffs Daesung’s land owner.

(4) In full view of the process of preparing the project agreement of this case, the form and content of the regulations, the contents of the contract of this case, and relevant provisions, "when it is possible to obtain approval for the housing construction project plan of this case" of Article 8.1 of the project agreement of this case means that "at least 94% of the project site of this case is to be completed," and "the project site of this case to be designated and publicly notified as Class II general residential area" have the condition that "the project site of this case should be designated and publicly notified as Class II general residential area". As alleged by the Defendants, it is reasonable to view that the preparation procedure should be prepared "at the time of receiving approval for the housing construction project" in the initial project agreement, and such preparation procedure should be deemed to be one of the separate requirements that constitute the conditions of this case.

4. Conclusion

Therefore, the claim of the plaintiffs, etc. that was changed in exchange at the trial is legitimate, and it is so decided as per Disposition.