[1] In a case where a bilateral contract becomes unable to perform an obligation without any cause attributable to both parties, whether the party may claim a return of unjust enrichment for the performance already performed (affirmative)

[2] The case holding that in a case where the articles of association of the Gap commercial association established to purchase a site for living measures in a housing site development zone provided that "each member's right to share shall not be transferred individually," but Eul purchased "the right to purchase a site for living measures from Byung who is a member of the Eul association," and thereafter Gap association completed the procedure for transferring the ownership of the right to purchase a site for living measures to the Jung corporation, the case holding that Eul can claim a return of unjust enrichment against Eul for the purchase price paid pursuant to the sales contract, since the sales contract cannot be implemented without any cause attributable to both parties

[1] Article 538 of the Civil Act applies to cases where one of the parties to a bilateral contract is unable to perform his/her obligation due to a cause attributable to the obligor, but Article 537 of the Civil Act concerning risk burden is applicable to cases where performance of obligation is impossible without any cause attributable to both of the parties, and where performance of obligation is impossible due to a cause attributable to the obligee. Therefore, where performance of obligation becomes impossible in a bilateral contract without any cause attributable to both of the parties, the obligor is exempted from the obligation to perform his/her obligation pursuant to Article 537 of the Civil Act and is also prohibited from claiming performance of the other party’s obligation. In cases where both of the parties fails to perform his/her contractual obligation, the performance of obligation that was already performed without claiming performance

[2] Where the articles of association of a housing site development project district provides that "A member's right to own share is not transferable individually," but Eul purchased "the right to own share from Byung who is a member of the housing site development project district," and thereafter Eul's association completed the procedure for transferring the ownership of ownership of ownership of ownership by selling the living countermeasure site to Byung Co., Ltd., the case holding that Eul and Byung cannot perform their obligations under the sales contract without consent of all members or modification of the articles of association at the time of the sales contract, and it is reasonable to view that Eul's union's obligation under the sales contract has reached a situation where Byung's obligation cannot be fulfilled under the generally accepted social norms by transferring the ownership of ownership of the living countermeasure site to Byung, and the circumstance that the sales contract cannot be performed due to the change of its articles of association is not a cause attributable to Byung, and it cannot be deemed that Eul's obligation to return the purchase price to Byung is not a cause attributable to Byung, and thus, Eul's obligation to return the purchase price cannot be seen as having been paid to Byung, and thus, it cannot be viewed as unlawful.

[1] Articles 390, 537, 538, and 741 of the Civil Act / [2] Articles 390, 537, 538, and 741 of the Civil Act

[1] Supreme Court Decision 2008Da98655, 98662 decided May 28, 2009 (Gong2009Ha, 1001)

Plaintiff

The Intervenor succeeding the Plaintiff

Defendant (Law Firm Happiness, Attorney Kim Tae-chul, Counsel for defendant-appellant)

Seoul Central District Court Decision 2016Na83220 decided July 5, 2017

The judgment below is reversed, and the case is remanded to the Seoul Central District Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Case summary

A. According to the reasoning of the lower judgment and the record, the following facts are revealed.

The Mine Teachers' Residents' Family Association (hereinafter referred to as the "Commercials' Family Association") is a cooperative established to purchase a site for livelihood measures in a district for the Housing Site Development Project supplied by the Gyeonggi-do City Corporation. Article 5 of the Articles of association established on March 26, 2009 by a commercial cooperative is limited to the qualification of members of the commercial building association as "the person selected by the Gyeonggi-do City Corporation as a person subject to livelihood measures and submitted an application for joining the cooperative," and Article 8 of the same Act provides that "each member's right to share shall not be transferred individually.

On April 6, 2009, the Plaintiff’s succeeding intervenor purchased the “right to purchase a site for countermeasures against the housing site development district for the Gwangju Metropolitan City” from the Defendant, a member of the commercial building association, for KRW 51 million (hereinafter “instant sales contract”), and paid the full purchase price on the same day.

On April 23, 2009, the Gyeonggi-do Si Corporation made a “public announcement of the supply of land for livelihood countermeasures for the Mine New City” with the following contents as follows. An application for purchase of land for livelihood countermeasures can only be made by a cooperative unit, and the transfer of ownership shall be made in the name of a cooperative. An alteration of the entire name of a cooperative may be made only once after the lapse of a certain period from the date of the first contract, and an

On August 31, 2009, the Gyeonggi-do City Corporation issued a “public announcement of change, such as change of the name, etc. of a site for countermeasures against the life of the Gwangjin Urban Community,” and the said public announcement provides that “The change of the name, ownership, and ownership of each member shall be possible after two weeks from the date of the initial contract, and the general meeting minutes of the consent of all members (the change of the members) and the list of members (the seal and seal affixed) shall be submitted to

상가조합은 2009. 10. 15. 경기도시공사와 위 각 공고에 따라 생활대책용지를 매수하는 용지매매계약을 체결하였으나 매매대금을 지급하지 못하게 되자, 주식회사 제이와이앤큐브컴퍼니(이하 ‘제이와이앤큐브컴퍼니’라 한다)에 생활대책용지를 매도하였다. 경기도시공사, 상가조합, 제이와이앤큐브컴퍼니는 2012. 5. 30. 3자 간에 권리의무를 승계하기로 하는 계약을 체결하고, 제이와이앤큐브컴퍼니에 생활대책용지에 관한 수분양권 명의이전 절차를 마쳤다.

B. The Plaintiff’s succeeding intervenor asserted that the Defendant did not pay or was unable to pay the purchase price under the instant sales contract, and filed a claim against the Defendant for the refund of the purchase price that the Defendant paid pursuant to Article 537 of the Civil Act on the compensation for damages or the risk of nonperformance.

2. Relation to the liability for nonperformance and the risk burden;

Article 390 of the Civil Act provides, “If an obligor fails to perform his/her obligation in accordance with the substance of the obligation, the obligee may claim damages. However, this shall not apply where the obligor is unable to perform his/her obligation without any intention or negligence.” Therefore, the obligor is not liable for damages if he/she fails to perform his/her obligation or is unable to perform it with no intention or negligence.”

Article 537 of the Civil Act provides, “If an obligation of one of the parties to a bilateral contract becomes impossible to be performed due to any cause for which neither of the parties is responsible, the obligor may not demand performance of the other party: Provided, That if performance becomes impossible due to any cause attributable to the obligee, or if performance becomes impossible due to any cause not attributable to both of the parties while the obligee is in the place of receipt by the obligee, the obligee bears the risk (Article 538 of the Civil Act).

Article 538 of the Civil Act applies to cases where a debtor cannot perform his/her obligation due to a cause attributable to either of the parties to a bilateral contract; however, Article 537 of the Civil Act concerning risk burden applies to cases where a debtor is unable to perform his/her obligation due to a cause attributable to both parties; and Article 538 of the Civil Act applies to cases where a debtor cannot perform his/her obligation due to a cause attributable to both parties. Therefore, in cases where a bilateral contract becomes unable to perform his/her obligation without a cause attributable to both parties, the debtor is exempted from his/her obligation to perform his/her obligation pursuant to Article 537 of the Civil Act; and the other party may not be demanded to perform his/her obligation. In cases where both parties have not performed their obligation, the performance that has already been performed without a claim for the performance of contractual obligation is a performance without a legal cause and may claim the return of the performance in accordance with the legal doctrine of unjust enrichment

3. Whether Article 537 of the Civil Act applies to the defendant's non-performance liability or risk burden due to the impossibility of the execution of the contract of this case

A. According to the records, Article 4 of the sales contract of this case provides that "the defendant is responsible for changing the name of the plaintiff's succeeding intervenor, etc. by performing or providing all documents and acts requested by the project operator from the application for purchase of land to the change of name," and Article 7 provides that "where the defendant is excluded from a person eligible for the supply of the living countermeasure site for the housing site development zone of Gwangju Metropolitan City, the defendant shall immediately refund the purchase price received from the plaintiff succeeding intervenor: Provided, That where the defendant's cause or intention is excluded, the amount of the purchase price shall be compensated as a penalty, and the plaintiff succeeding intervenor may immediately execute the sale price without notice to the defendant."

As seen above, the Gyeonggi-do Market Corporation, a project implementer, prevented members from individually transferring their respective shares in the first public announcement on April 23, 2009. However, in the subsequent public announcement on August 31, 2009, the policy was modified to the effect that each member can change his/her name, but even in such a case, the consent of all members was required. Article 8 of the Articles of Incorporation enacted on March 26, 2009 provides that "each member's right of share shall not be individually transferred."

원고승계참가인과 피고는 이 사건 매매계약 당시 조합원 전원의 동의 또는 조합 정관 제8조의 변경 없이는 위 매매계약에 따른 의무를 이행할 수 없다. 이러한 상태에서 상가조합이 생활대책용지에 관한 수분양권을 제이와이앤큐브컴퍼니에 이전함으로써 이 사건 매매계약에 따른 피고의 의무는 사회통념상 그 이행을 할 수 없는 상태에 이르렀다고 봄이 타당하다.

B. The lower court did not accept the Plaintiff’s claim filed by the Plaintiff’s succeeding intervenor seeking a default liability or an unfair return for the following reasons. First, the Plaintiff’s liability for nonperformance is denied on the grounds that the instant sales contract was not impossible due to the Defendant’s fault. Second, the Plaintiff’s succeeding intervenor was transferred to the Plaintiff’s succeeding Intervenor on the ground that the Plaintiff’s succeeding intervenor was provided with necessary documents, etc. before the Plaintiff’s membership status and received treatment corresponding to the Plaintiff’s members from the commercial cooperative, etc., and thus,

The judgment of the court below that the sales contract of this case cannot be implemented due to the consent of all the members of the commercial association or the modification of the articles of association of the association is not a cause attributable to the defendant. However, such circumstance is not likely to constitute a cause attributable to the plaintiff succeeding intervenor, and thus, it can be deemed that the plaintiff succeeding intervenor was unable to implement the sales contract of this case without any cause attributable to both parties. The plaintiff succeeding intervenor is not a creditor body. The plaintiff succeeding intervenor did not acquire the "right to purchase the land for taking countermeasures against the housing site development zone for the commercial area" even if he paid the purchase price from the defendant in accordance with the sales contract of this case.

If the sales contract of this case cannot be performed without any cause attributable to both parties, the defendant is exempted from the obligation to perform his/her obligation pursuant to Article 537 of the Civil Act, and cannot claim the purchase price against the plaintiff succeeding intervenor. Therefore, the plaintiff succeeding intervenor may claim a return of unjust enrichment against the defendant regarding KRW 51 million paid according to the sales contract of this case.

The lower court erred by misapprehending the legal doctrine on performance and risk burden in the bilateral contract, thereby adversely affecting the conclusion of the judgment. The Plaintiff’s succeeding intervenor’s ground of appeal assigning this error is

4. Conclusion

The lower judgment is reversed without further proceeding to decide on the remaining grounds of appeal, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on

Justices Noh Jeong-hee (Presiding Justice)