2016Gadan103156 Return of the purchase price

A

AbnbC Co., Ltd.

January 12, 2018

February 22, 2018

1. The defendant shall pay to the plaintiff 70 million won with 15% interest per annum from March 18, 2016 to the day of complete payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. The non-party B housing association (hereinafter referred to as the "non-party B housing association") shall implement the project implementation district of Jung-gu Seoul Metropolitan Government C

A regional housing association that obtained authorization for establishment around January 8, 2009 with the purpose of the housing development project that constructs apartment units (hereinafter referred to as the "project of this case"). The defendant is a company that succeeded to the business of D (hereinafter referred to as "non-party company") that was first selected as an execution agency around August 2013.

B. On May 11, 2011, the Plaintiff prepared an application for joining the “E” B Housing Association (hereinafter referred to as the “instant application for joining”), and on the same day, the Plaintiff signed and sealed it as an executor, the Nonparty Company as an executor, the Nonparty Company as an executor, and the Plaintiff as a partner in the partnership joining agreement signed and sealed it as a contractor (hereinafter referred to as the “instant contract”).

C. At the time, the Plaintiff’s employees completed the establishment authorization on January 2009, and around May 2010, notified that the completion construction corporation was selected as a contractor and that it was scheduled to move in around 2014.

D. Pursuant to the instant contract, the Plaintiff deposited or paid KRW 20,000,000 on May 11, 2011, 201 under the foreign exchange bank account, etc. in the name of a credit construction company, and KRW 1,000,000 on May 24, 2011, and KRW 20,000 on August 31, 201, and KRW 20,000,000 on September 23, 2011.

E. However, from March 201, 201, the member F of the non-party company, at the time of which the financing for the instant business was not smooth, was recruited as if there were little problems in the progress of the instant business due to the completion of the recruitment of union members and the purchase of land for the instant business from around March 201 to the majority of the members who want to join the instant business through the sales advisory company, and the Plaintiff also entered into the instant contract with the aforementioned false end.

F. In fact, around September 12, 2013, the construction contractor completed the construction project showed to the non-party union and the non-party company a certificate of cancellation of the construction contract on the grounds of delay in the process of granting authorization due to the recruitment of association members and the failure to secure land. Since then, the non-party union obtained authorization to establish the association around September 3, 2015.

Since 2 years from the date of application for approval of a project plan (violation of Article 40(1) of the Enforcement Decree of the Housing Act).

[Ground of recognition] Facts without dispute, Gap 1 to 4, 7, and 30 evidence (if there are serial numbers, referring to the number number number). Results of fact inquiry to the head of Seoul Central Franc in Seoul and Construction Co., Ltd., the purport of the whole pleadings, as a whole.

2. Determination

A. Determination on the cause of the claim

According to the above facts, in fact at the time of the instant contract, the number of union members and the purchase of land did not properly take place, and thereby, the completion construction corporation, which is the contractor, could waive the construction, and even if the authorization for establishment was revoked, the representative director of the non-party company F, through his employees, shall proceed with the business according to the plan that the completion construction corporation would be selected and planned as the contractor, and he shall take occupancy in around 2014 by deceiving the Plaintiff and 70 million won from the Plaintiff. As such, the Defendant who succeeded to the status of the non-party company, was liable to compensate the Plaintiff for damages calculated at each annual rate of 15 percent per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from March 18, 2016 to the date of complete payment, which is the day following the day when the copy of the instant complaint was delivered to the Defendant as requested by the Plaintiff.

B. Judgment on the defendant's argument

The defendant asserts to the effect that the status of the non-party company was not succeeded to at all without any business affairs of the non-party union and its enforcement agent.

However, in full view of the purport of the entire pleadings in the statements in Gap evidence Nos. 8, 10, 11, the defendant

Around August 2013, the fact that the non-party company participated as an agent for the implementation of the project of this case and succeeded to the affairs of the existing non-party company as it is. On August 12, 2013, the defendant's letter of order is rejected since the defendant succeeded to the status of the exercise of the non-party company's business of this case and the defendant's letter of order is not accepted since he/she entered into a fund management agency contract with the purport of entrusting all the fund management affairs related to the project of this case, such as the non-party association and the Korea Land Trust Co., Ltd. and the association members' contributions, etc. to the land trust company for all the fund management affairs related to the project of this case.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.

Judge Choi Jong-chul