(B)2017Na10300 Unlawful gains

A Regional Housing Association

B Stock Company

Jeonju District Court Decision 2015Da4442 Decided January 13, 2017

August 10, 2017

November 16, 2017

1. The part against the defendant in the judgment of the first instance shall be revoked;

2. The plaintiff's claim corresponding to the above cancellation part is dismissed.

3. The plaintiff's appeal is dismissed.

4. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 2,300,000,000 won with interest of 20% per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

A. The plaintiff

Of the judgment of the court of first instance, the part against the plaintiff falling under the following amount shall be revoked. The defendant shall pay to the plaintiff 377,200,000 won with 15% interest per annum from September 19, 2015 to the day of full payment.

B. Defendant

The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revocation shall be dismissed.

1. Basic facts

A. Status of the parties

The plaintiff is a regional housing association under the Housing Act established for the business of constructing D apartment (hereinafter referred to as "the apartment in this case and the apartment in this case") in the Jeonsi-gu Seoul Special Metropolitan City. The defendant is a company that aims at real estate advertising and sales agency business.

B. Ground of establishment of the Plaintiff

1) The Defendant, from around 2005, selected a city construction project and promoted the project to newly build and sell the apartment of this case, but had difficulties due to the failure of the city construction project and the subsidence of the housing market. The Defendant was out of the past.

High, from E Co., Ltd. (FF Co., Ltd.; hereinafter referred to as “E”), 'Local Housing Association may participate as a contractor when it implements a new project to kill the apartment of this case from E Co., Ltd. (hereinafter referred to as “E”), upon receiving a proposal, recruited members to establish a regional housing association.

2) Accordingly, the inaugural general meeting of the Plaintiff Association Promotion Committee was held on December 8, 2008, and the head of the Yong-gu Office in Jeonju-si was authorized to establish the Plaintiff’s Housing Association to implement the instant new apartment construction project on November 30, 2009.

C. New construction of the apartment of this case

1) On December 30, 2010, the Plaintiff obtained the approval of the project plan for the construction of the instant apartment from the former mayor. On March 11, 2011, the Plaintiff entered into a contract for construction works with E. The main contents relating to the funding are as follows.

(5) Within 7 days after the conclusion of this contract for construction works, the plaintiff shall verify the whole contract entered into in E, the details of the project cost, the whole of the undeveloped land (including the undeveloped land) and all other matters required by E, together with reasonable evidence. If the plaintiff does not submit related documents, E may refuse to give consent to the contract and the contents of the contract. Article 12 (Management of Funds) ① Members' contributions, general sales revenue and business promotion expenses are established in E's name, and E is received in the account of the west branch of the North Korean bank designated by E at the time of the sole seal.(2) If the plaintiff requests withdrawal of funds from the head of the Tong under paragraphs (1) and (4), E consents to withdrawal, and if the plaintiff or the defendant withdraws and delays the amount used by the plaintiff or the defendant, the head of the Tong shall manage it.

2) On February 1, 2013, the instant apartment building was completed and its partners began to move into.

D. Defendant’s agency business

1) The defendant, as the plaintiff's agent, purchases land and projects for the new apartment construction project of this case

The agency business, such as approval, recruitment of union members, and selection of construction works, was entrusted.

2) From August 10, 2005 to December 1, 2009, the Defendant purchased the land of Yansan-gu C in the previous week from August 10, 2005 to December 1, 2009. In the process, KRW 2,230,215,000 was disbursed. The Plaintiff and the Defendant recognized the purchase price as the Defendant’s loan to the Plaintiff and settled it.

3) Meanwhile, on December 2, 2009, the Defendant entered into an agency contract (hereinafter “instant agency contract”) with the Plaintiff, and the main contents thereof are as follows.

The defendant under Article 2 (Period of Business Performance) of the Agency Contract as an agent for the plaintiff's business is the period from the date of establishment of the plaintiff's regional housing association to the time of recruitment, occupation, and liquidation of the plaintiff's members, and the period of business performance shall be five years from the date of establishment of the plaintiff's regional housing association, but the period may be reduced or extended upon consultation between the plaintiff.Article 3 (Agency Expenses) of the Agency Contract shall be paid in cash for the total amount of down payment. In addition, the agency expenses shall be six million won per household, and the agency expenses may be raised within ten million won in consultation with the plaintiff when price increase or increase of agency expenses occurs.Article 9 (Change of Details of Business) ① If necessary, the plaintiff may change the contents of the agency affairs or temporarily suspend the agency affairs. In this case, if it is necessary to change the contract amount or the period of execution, it shall be determined in writing in consultation with the plaintiff and the defendant.

4) On October 1, 2009, the Plaintiff paid KRW 1 billion to the Defendant at the agency expense under the instant agency contract. ② On July 30, 2010, the Plaintiff paid KRW 2 billion to the Defendant for expenses for the construction, operation, publicity, etc. of the instant apartment model. ③ The Plaintiff, other than the Plaintiff, transferred KRW 796,636,755, the sum as indicated below, to the Defendant’s former North Bank account (G) through the ENB bank account, etc., which managed the Plaintiff’s funds.

Serial temporary amount on July 21, 12010: 19.15,00,000 won on October 14, 1201; 14.15,000,000 won on December 14, 2010; 14.395,351, 429 won on December 14, 2010; 30.28,312,480 won on November 12, 2010; 119, 7207; 8.25,63,68,720 on August 28, 201; 16, 200 on August 36, 205; 200 on August 38, 201; 205; 10,000 won on March 38, 201; 18, 1014;

[Ground for recognition] A, Gap's evidence Nos. 1, 4, 5, Eul's evidence Nos. 1 and 3 (including paper numbers, the same as this subparagraph), the result of the court of first instance's response to the order of submission of financial transaction information to the former North bank of the court of first instance on Jan. 11, 2016, the result of the first instance court's response to the facts against the F corporation of this court and this court's whole purport of the pleadings;

2. Summary of the parties’ assertion

A. The plaintiff's assertion

The Plaintiff may exercise the right to claim restitution of unjust enrichment against the Defendant as follows. As such, the Plaintiff partly sought KRW 2.3 billion and damages for delay.

1) The primary argument

Although the Defendant directly received KRW 2,886,702,490 from the Plaintiff’s members as agent expenses, the Defendant received KRW 3,796,636,755 won in total from the Plaintiff from October 1, 2009 to June 28, 2013).

The payment was received separately.

The money that the defendant can receive from the plaintiff in relation to the new construction and sale of the apartment of this case is only an agency fee under the agency contract of this case. Therefore, the defendant must return the above KRW 3,796,636,755 to the plaintiff.

2) Preliminary assertion

Even if the Defendant received the above KRW 3,796,636,755 as an agency expense, the Defendant ought to return as unjust enrichment the difference between KRW 2,496,00,000 ( KRW 416 householdsx 6,00,000) and that of KRW 1,30,636,755, which is a reasonable agency expense.

In addition, the Defendant received 2,886,702,490 won directly from the Plaintiff’s members under the name of proxy expenses, etc., which is the money that the Plaintiff had to receive. Nevertheless, the Defendant has to return it to the Plaintiff as unjust enrichment or pay it with the agreed settlement amount. Even if the Plaintiff’s members who are not the Plaintiff’s right to claim the return of unjust enrichment, the Plaintiff shall exercise the right to claim the return of unjust enrichment on behalf of the Plaintiff members in order to preserve the right to claim the return of unjust enrichment

Therefore, the Defendant is obligated to pay the Plaintiff a sum of KRW 4,187,339,245 (i.e., the difference between the agency cost and KRW 1,300,636,755 + Defendant’s receipt amount of KRW 2,886,702,490) as unjust enrichment or agreed settlement amount.

B. The defendant's argument

1) The Defendant properly received agency expenses according to the instant agency contract with the Plaintiff. Moreover, through the review of E, which managed the funds for the instant new apartment construction project, the Defendant was justified.

There is no unjust enrichment from the disbursement of the cost and the preservation of the pre-payment cost.

2) Regarding agency business expenses (related to advance payment of KRW 1 billion on October 1, 2009 and Defendant collection money)

When concluding the instant agency contract with the Plaintiff, the Defendant agreed on the agency cost of KRW 6 million per household based on 507 households, which are the total number of households of the instant apartment, and raised the agency cost by KRW 8 million per household on the grounds of price increase, etc.

Accordingly, the agency expenses paid by the Plaintiff members to E or the Defendant’s account shall be KRW 3,172,00,000 in total, and the details thereof shall be as follows:

(1) The amount of KRW 1,00,000,000, the amount of KRW 1,000,000, the amount of KRW 375,00,000, the amount of KRW 1,000,000, the amount of KRW 1,000,000, the amount of KRW 1,000,000, the amount of KRW 2,000,000,000, and the amount of KRW 1,401,00,000,000, the amount of KRW 375,00,000,000,000, the amount of KRW 1,5,000,00,000; and

The Plaintiff’s members divided the agency cost of KRW 6 million into one and two lanes, and deposited KRW 3 million each, respectively. On July 28, 2010, the increased members deposited the agency cost of KRW 2 million additionally. The number of the members who actually paid the agency cost is 467 households (based on the second payment amount) from 458 households (based on the second payment amount).

As such, the Plaintiff’s members paid a total of KRW 3.172 billion in the agency cost, which shall be the final reverted to the Defendant, who is an agent. The Defendant received KRW 1.1 billion in advance from the Plaintiff as an agent fee in addition to KRW 2.188 million in the amount directly received. The aggregate amount is close to the above KRW 3.172 billion that should be reverted to the Defendant, and the number of vehicles is somewhat smaller than KRW 16,00 in the amount (=2.188 billion in the Defendant’s receipt + KRW 1.188 billion in advance - total of KRW 3.1 billion in the agency cost).

3) Regarding remittance amount of July 30, 2010 KRW 2 billion from July 30, 2010

This was settled ex post facto for the costs of new construction, operation, and public relations of model parcels that the Defendant first paid, and was properly paid after the Plaintiff’s request for funding and the feasibility review of E.

4) Otherwise, related to the total amount of remittance from July 21, 2010 to June 28, 2013 796,636,755 won

This was used as land purchase cost, refund money, interest, etc., and was paid properly after the plaintiff's request for financial execution and the feasibility review of E.

5) Claim for the expiration of the extinctive prescription period

Even if the Plaintiff’s right to claim restitution of unjust enrichment is recognized, Article 64 of the Commercial Act applies or analogically applies to the right to claim restitution of unjust enrichment. The statute of limitations expired for the Defendant’s right to claim restitution of unjust enrichment with respect to money paid to the Defendant not later than five years from each time the Plaintiff alleged that it was paid in excess of the preparatory document.

3.Flag

A. In a lawsuit seeking restitution of unjust enrichment, the Plaintiff bears the burden of proof as to the facts that the Defendant obtained without any legal cause. From October 1, 2009 to June 28, 2013, the Plaintiff assumes that the sum of KRW 3,796,636,755 that was transferred to the account of the former North Korean bank (G) in the name of the Defendant, and the agency expenses directly received from the Plaintiff’s members, which the Defendant received from the Plaintiff’s members, was part of unjust enrichment or return after settlement. We examine the following issues in the following sequence.

B. As to KRW 3,796,636,755 in total of the remittance amounts from October 1, 2009 to June 28, 2013

1) As to the remittance amount of 1 billion won on October 1, 2009

The fact that the Defendant received KRW 1 billion from the account held in the name of E on October 1, 2009 that the Plaintiff paid in advance to the Defendant is not a dispute between the parties. The foregoing advance payment is difficult to be deemed as unjust enrichment by the Defendant or to be returned after the settlement, as seen in the following (c).

2) As to the remittance amount of July 30, 2010 KRW 2 billion

In light of the following circumstances, evidence Nos. 1, 2, 3, 8, 9, and 10 of the evidence Nos. 2, 2, 3, 8, 9, and 10 of the Act, the order to submit financial transaction information to the former bank of the court of first instance to the former bank of the court of first instance on January 11, 2016, each fact inquiry results in the court of first instance and the court of this court to the F Co., Ltd., the court of first instance, and the following circumstances, it is insufficient to recognize that the submitted evidence alone has gains without any legal cause or has part of return after settlement.

① On April 25, 2009, E opened an account under the name of the Plaintiff’s member after receiving contributions from the Plaintiff’s members, etc., E has been managing funds for the construction project of the instant apartment before entering into the construction contract with the Plaintiff.

② On July 29, 2010, the Plaintiff requested that the Defendant pay KRW 2 billion to the Defendant, such as the model cargo construction and operation expenses, and public relations expenses paid by the Defendant. After examining relevant documents, E had the amount of KRW 2 billion transferred from the account of Samwon Savings Bank (T) managed by the Defendant on July 30, 2010 to the Defendant. As for the execution of such funds, the Plaintiff’s general meeting held thereafter reported and ratified such funds.

③ As such, the transfer of KRW 2 billion to the Defendant on July 30, 2010 was conducted through a review conducted by the Plaintiff and E, and cannot be deemed as having no legal grounds. In addition, the Plaintiff or E’s transfer cannot be deemed as having legal grounds.

There was no data to see that there was a defect in the above decision making.

④ Article 7 of the Standard Agency Contract for Regional and Workplace Housing Association (Evidence 9) prepared by the Ministry of Land, Infrastructure and Transport on December 2, 2016 provides that "the project cost of a cooperative (such as financial expenses, advertising expenses, and expenses incurred in the sale of buildings, such as expenses for public relations centers, expenses incurred in the operation of cooperatives, and other expenses incurred in the holding of the general assembly) incurred during the execution of the project shall not be included in the agency agency cost of the cooperative." In light of this, it cannot be deemed that the defendant's demand against the plaintiff for model cargo construction, operation expenses, public relations expenses, etc. separate from the agency cost is unreasonable.

5. In relation to this part, the content of the agreement between the plaintiff and the defendant on the settlement of accounts and the data to verify the details of the calculation of the settlement amount were not attached.

3) As to the total amount of remittance from July 21, 2010 to June 28, 2013, 796,636,755 won

In light of the aforementioned circumstances and the following circumstances, Gap evidence Nos. 1, 4, Eul evidence Nos. 1, 8, and Eul evidence Nos. 1, 1, and 8 against Jeonbuk bank of the court of first instance as of Jan. 11, 2016, and each fact-finding results in the court of first instance and this court's fact-finding with respect to FF corporation of the court of first instance, the evidence submitted alone is insufficient to recognize that the defendant obtained benefits without any legal cause or was returned after settlement, and there is no other evidence.

① The above remittance amount to KRW 796,636,755 was transferred from the account under the name of E or from the account under the management of E to the account under the name of the Defendant. In light of the method of execution of funds relating to the instant apartment construction project, E may be deemed to have transferred the said money to the Defendant upon the Plaintiff’s request after review of relevant data. As to the execution of such funds, the report and ratification was delayed at the Plaintiff Association Assembly.

② As such, the remittance of the above KRW 796,636,755 to the Defendant was conducted through a review according to the intent of the Plaintiff and E, and it is difficult to deem that there is no legal ground. Moreover, there was no data to see that there was any defect in the Plaintiff or E’s above decision of intention.

③ The above KRW 796,636,755 appears to have been used as project costs, such as land purchase costs, refund payments, interest, etc. This cannot be deemed to have been included in the scope of the Defendant’s agency business expenses.

④ The Defendant filed a lawsuit seeking the payment of unpaid land purchase costs against the Plaintiff and rendered a favorable judgment. However, there is no evidence to deem that the part of the land purchase cost in the above KRW 796,636,755 was included in the cause of the claim in the pertinent lawsuit. Meanwhile, the part of the land purchase cost already paid cannot be deemed as unjust enrichment due to the judgment and the final decision of the pertinent lawsuit.

5. In relation to this part, data to verify the content of the agreement between the plaintiff and the defendant on the settlement of accounts and the details of the calculation of the settlement amount were not submitted.

C. As to agency expenses directly received by the Defendant from the Plaintiff’s members

1) The defendant's direct receipt amount

The fact that the Defendant directly received agency expenses of at least 2.188 million won from the Plaintiff’s members does not conflict between the parties. Furthermore, as to whether the Defendant’s directly received the amount from the Plaintiff’s members exceeds KRW 2.188,888 million, and exceeds KRW 2,886,702,490, health class, evidence No. 7, and each order to submit financial transaction information to the former bank by the court of first instance is insufficient to recognize it, and there is no evidence otherwise.

2) As to the method of payment of agency expenses (as to the plaintiff's preliminary assertion)

The reasons for this part are as set forth in Article 3-1(a) of the judgment of the court of first instance (from 6th to 7th 10th eth eth eth eth eth eth eth eth eth eth eth e.g.

3) As to the reasonable attribution of agency expenses

As seen earlier, on October 1, 2009, the Plaintiff pre-paid the agency cost of KRW 1 billion to the Defendant on October 1, 2009, and the Defendant directly collected the agency cost of KRW 2.1888,88 million from the Plaintiff’s members. As such, the Defendant ultimately received the agency cost of KRW 3.188,88 million from the Plaintiff’s members. We examine the total sum of the above amounts together.

In light of the following circumstances, evidence submitted by the defendant alone is insufficient to recognize that the defendant acquired benefits without any legal ground or returned after settlement of accounts in excess of reasonable agency expenses, and there is no other evidence, in light of the following circumstances, which are acknowledged as comprehensively taking account of the descriptions of evidence Nos. 2, 3, and 6, 7, and 8, and the fact-finding results with respect to F. corporation of the court of first instance:

① The Plaintiff asserts that the agency cost should be calculated on the basis of 416 members, who are the number of union members as of May 31, 2015. However, as of October 30, 2012, the number of the Plaintiff’s union members as of October 30, 2012 is 430. Considering the growing tendency of union withdrawals, it may be presumed that the number of the Plaintiff’s union members was more than 430 members around December 2, 2009 when the Plaintiff and the Defendant entered into the instant agency contract. Furthermore, given that the Defendant had recruited union members before entering into the instant agency contract on a regular basis, the number of union members subject to the payment of agency cost increases more than the number of union members. This accords with the Defendant’s assertion that the Plaintiff was paid the agency cost by 458-467 members, compared to the Plaintiff’s assertion.

② According to the contract for joining an association, an agent fee is required to make a lump sum payment at the same time as the down payment. On the other hand, the agent fee paid at the time of withdrawal from the association does not be refunded. In other words, even if the number of union members decreases due to withdrawal, the agent fee paid is final Defendant.

shall be reverted to the Corporation.

③ On July 28, 2010, the board of directors of the Plaintiff Union decided that “from August 1, 2010, the agency expenses shall be increased by KRW 6 million to KRW 8 million” upon the Defendant’s request. Accordingly, the agreement was entered into for the membership of the association that reflects the actual increase in the agency expenses, and accordingly, the agency expenses have been paid. It is consistent with the Defendant’s assertion that the agent expenses of KRW 8 million raised from some members have been paid.

4. In relation to this part, data pertaining to the terms and conditions of the settlement agreement between the plaintiff and the defendant, and the details of the settlement amount calculation are not submitted.

(d) Conclusion

As seen above, the evidence submitted by the Defendant alone is insufficient to recognize that there was an unjust enrichment of the sum of KRW 3,796,636,755 won that the Defendant received from October 1, 2009 to June 28, 2013 or the agency expenses received from the Plaintiff’s members, or that there was a portion of return after settlement, and there is no other evidence. Therefore, it is difficult to accept the Plaintiff’s assertion.

4.In conclusion

If so, the plaintiff's claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is partially unfair with different conclusions, the part against the defendant in the judgment of the court of first instance revoked and the plaintiff's claim corresponding to the revoked part shall be dismissed. The plaintiff's appeal

Judges of the presiding judge

Judges Choi Jong-chul

Judges Kim Jong-soo

1) In relation to this, the legal brief dated June 3, 2016, which was amended by the Plaintiff, stated “3,596,69,616 won” as “3,796,636,755 won”. However, the legal brief submitted on October 25, 2016 thereafter was amended as “3,796,636,755 won.”