(영문) 수원지방법원 2017. 12. 13. 선고 2017나52986 제1민사부 판결

The defendant shall pay 150,00,000 won to Co-Defendant C of the first instance trial and each of them to the plaintiff and 5% interest per annum from September 24, 2015 to the delivery date of the complaint, and 15% interest per annum from the next day to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Facts of recognition;

A. On February 17, 2015, the Defendant comprehensively succeeded to the rights and obligations of the promotion committee, which was established by the regional housing association promotion committee (hereinafter referred to as the “promotion committee”) established to carry out a project for developing multi-family housing in the JJ of Sungsung-si.

B. The promotion committee should purchase the pertinent land of 4,661 square meters (hereinafter referred to as “instant land”) for the said project. Around 2014, the promotion committee agreed to pay KRW 150,000,000 to the Plaintiff, a relative relative of the above co-owners, upon requesting the purchase and sale of the instant land, when the sale contract for the said land was concluded and the ownership transfer registration was completed in the name of the promotion committee (hereinafter referred to as “instant agreement”).

C. On March 21, 2014, the Promotion Committee entered into a sales contract (hereinafter “the first sales contract”) with two and more persons, the land of this case, the sales price of which is KRW 2,402,00,000,000, and the outstanding payment date until September 15, 2014 (which shall be paid up to July 31, 2014, and shall be added to interest rate of KRW 14% per annum, and shall be added to interest rate of KRW 14% per annum) and entered into a sales contract (hereinafter “the first sales contract”). On the same day, pursuant to the instant agreement, the Committee prepared a cash storage certificate (Evidence 2-1) stating that “the Plaintiff shall receive and keep KRW 150,00,000 from the Plaintiff,” but did not pay any balance to the seller until the outstanding payment date ( September 15, 2014) stipulated in the first sales contract.

D. Since July 23, 2015, the Defendant: (a) 2 and two others; and (b) 3,107,324,000 won of the purchase price of the instant land.

(The contract amount of KRW 311,00,000 is paid on the date of the contract, and the balance of KRW 2,796,324,00 is paid until July 25, 2015). However, a sales contract was concluded with the effect that additional KRW 300,000 is to be paid as a penalty for breach of contract for non-performance of the first sales contract (hereinafter referred to as "the second sales contract"), and the same day promotion committee jointly and severally guaranteed the defendant's obligations.

E. The Defendant paid the purchase price to the purchaser in accordance with the second sale contract, and completed the registration of ownership transfer in its name on September 23, 2015.

F. At the time of filing an application for the secondary sales contract and for the registration of transfer of ownership pursuant thereto, all of the Defendant’s voters were written in C, but C resigned from the Defendant’s partnership on May 2015, and the Defendant ratified C’s resignation at the extraordinary general meeting on May 31, 2015.

G. Meanwhile, on July 2, 2015, C stated that “I, at the bottom of the cash custody certificate as described in the foregoing paragraph (c) above, you shall pay the said amount at the time of transfer of ownership of D land.”

[Ground of recognition] Facts without dispute, Gap 1-5, 10 evidence (including virtual number), Eul 1-3 and 5 evidence, the purport of the whole pleadings

2. Determination as to the legitimacy of the subsequent appeal of this case

A. The plaintiff's assertion

On June 21, 2016, the Plaintiff filed an application for provisional seizure against real estate (U.S. District Court 2016Kadan202070) with the Defendant as the debtor for the purpose of preserving the claim for the instant agreed amount. Since the Defendant applied for perusal or duplication in the instant provisional seizure case on September 12, 2016, the Plaintiff was aware of the fact that the instant lawsuit, which is the principal lawsuit, was pending around that time, was handed down, and further, was sentenced on October 25, 2016. Nevertheless, the Defendant filed an appeal for subsequent completion only on January 13, 2017, and thus, the period of appeal, which is the peremptory term, was not complied with. Accordingly, the Defendant’s appeal for subsequent completion of the instant case, is unlawful.

B. Determination

An association or foundation, other than a juristic person, may become a party to a lawsuit in the name of the association or sub-division (Article 52 of the Civil Procedure Act), and the provisions of the Civil Procedure Act concerning statutory representation and legal representative shall apply mutatis mutandis to a representative or manager of an association or sub-organization which is not a juristic person (Article 64 of the Civil Procedure Act). In a case where a party is unable to perform the peremptory term due to a cause not attributable to him/her, he/she may supplement the litigation by negligence within two weeks from the date on which such cause ceases to exist (Article 173(1)1 of the Civil Procedure Act). In a case where an unauthorized representative performs a lawsuit and is served with the original copy of the judgment, the party involved was aware of the fact that the lawsuit continues to exist and the fact that the original copy of the judgment was served without negligence, so the party’s appeal is lawful (see, e.g., Supreme Court Decision 9

In this case, if the purport of the entire argument is fully added to the health team, the evidence mentioned above, and this court's significant facts, ① the defendant's substance is a non-corporate body with an organization with union rules and representative, etc. for apartment construction and sales business; ② as of June 20, 2016, C resigned from the office of the defendant's representative; ③ as of August 29, 2016, K, a general secretary director, was served on C, who is not the defendant's representative, was served on August 29, 2016; ③ as of August 29, 2016, the copy of the complaint of this case was served on the defendant's non-corporate body; and the original copy was served on October 31, 2016 on the part of the court of first instance, which accepted the plaintiff's request; ④ the defendant filed an appeal with the court of first instance after perusal and reproduction of the original copy was received on January 5, 2017, and the defendant can clearly be found to have been declared the defendant 17.

In light of this, since a person who is not the representative of an unincorporated association is not authorized to conduct a lawsuit on behalf of an unincorporated association, it is reasonable to view that the lawsuit of this case was not able to observe the period of appeal due to the lack of his knowledge of the continuation of the lawsuit of this case and the delivery of the original copy of the judgment on behalf of the defendant, and the evidence submitted by the plaintiff alone is insufficient to reverse the recognition. Therefore, since the appeal of this case is lawful, this part of the plaintiff's assertion is not accepted.

3. Judgment on the merits

A. The parties' assertion

1) Plaintiff

The promotion committee entered into this case's agreement with the plaintiff, and the defendant's legitimate representative or the plaintiff's reasonable ground to believe that the plaintiff is the defendant's representative has agreed again to the plaintiff. As the defendant purchased the land of this case with the plaintiff's efforts, the defendant is obligated to pay 150,000,000 won and damages for delay to the plaintiff pursuant to the agreement of this case.

2) Defendant

Since the first sale contract was lawfully rescinded, the agreement of this case was also invalidated. Since then, at the time of the conclusion of the second sale contract, C prepared a payment memorandum on the cash storage certificate, but around that time C was not a legitimate representative of the defendant, and even according to the content of the above payment memorandum, C cannot respond to the plaintiff's claim because it was a natural person, C would bear an obligation to the plaintiff individually.

B. Determination

1) First, the second sales contract is deemed as having been revised only by the amount of the purchase price of the first sales contract, the date of payment, or whether it can be deemed as having been substantially the same as the first sales contract, or whether the first sales contract was newly concluded after the cancellation of the first sales contract as the Defendant’s assertion.

In light of the following circumstances, namely, ① the father L of the seller, in relation to the process of concluding the secondary sales contract, was urged several times after the conclusion of the primary sales contract, and around July 23, 2015, he/she again prepares a sales contract with the content of adding interest and penalty for the period in question on the basis of the primary sales contract around July 23, 2015, ② Article 11(1) of the secondary sales contract provides that “where the previous contract is not compatible with the secondary sales contract, the secondary sales contract shall substitute the previous contract; ③ the promotion committee, which is the buyer of the primary sales contract, has jointly and severally guaranteed the buyer’s obligation in the secondary sales contract, it is reasonable to view that the secondary sales contract is identical to the amount and payment period based on the primary sales contract, and that the primary sales contract is changed in the name of the buyer, which has succeeded to the buyer in the name of the promotion committee, and thus, it is still valid even after the primary sales contract.

2) In addition, according to the evidence mentioned above, C withdraws from the Defendant’s partnership head at the time of the second sales contract, but it can be acknowledged that C had been named as the Defendant’s representative in the second sales contract. At that time, the Plaintiff deemed C as the Defendant’s lawful representative, and at the bottom of the cash custody certificate prepared by the promotion committee in the sense of re-verification of the instant agreement.

Since C made it possible to prepare a letter of payment, this case’s agreement still remains valid in light of this point.

3) Therefore, as seen earlier, the fact that the Defendant purchased the instant land with the Plaintiff’s efforts and completed the registration of ownership in its name. Therefore, the Defendant, who comprehensively succeeded to the obligation of the Promotion Committee, is obligated to pay to the Plaintiff 150,000,000 won and damages for delay calculated by the rate of 5% per annum as prescribed by the Civil Act from September 24, 2015 to August 29, 2016, the day following the day on which the registration of ownership transfer was completed in the name of the Defendant with respect to the instant land in the name of the Defendant, and from the next day to the day of full payment, to August 29, 2016.

4. Conclusion

The plaintiff's claim is justified, and the judgment of the court of first instance is consistent with this conclusion, so the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.