Promotion Enterprise Co., Ltd. (Attorney Kim Young-ju et al., Counsel for the defendant-appellant)

Future Security Industry Development (Attorney Cleanup Sung-sung et al., Counsel for the defendant-appellant)

April 7, 2010

1. The defendant shall pay to the plaintiff 300,000,000 won with 20% interest per annum from December 9, 2009 to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the defendant.

The defendant shall pay to the plaintiff 300,000,000 won with 20% interest per annum from the service date of the payment order to the day of full payment.

1. Determination as to the cause of claim

The plaintiff is obligated to pay to the plaintiff the amount of KRW 150,00,000 on August 29, 2003, and the amount of KRW 150,000 on September 29, 2003, and the amount of KRW 150,00,00 on September 29, 2003, to the defendant as expenses for business promotion of housing redevelopment projects in Zone Three of the search and seizure Zone. Since there is no dispute between the parties without fixing the period of each payment, the defendant is obligated to pay to the plaintiff, barring special circumstances, the total amount of each of the above loans, KRW 300,000,000, and delay damages calculated at the rate of 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from December 9, 2009

2. Judgment on the defendant's defense of set-off

(a) Facts of recognition;

The following facts may be recognized in full view of the descriptions of Gap 4, 5, 6, Eul 1, and 2 and the purport of the whole pleadings:

1) Around March 2003, the Defendant entered into a contract for implementing a housing redevelopment project in the search zone 4 district (hereinafter “instant project”) (hereinafter “instant implementation agency contract”) with the search zone 4 housing redevelopment association (hereinafter “four district association”) as follows (hereinafter “instant project”).

[Terms and Conditions of Redevelopment Implementation]

Article 2 (Scope of Business)

(1) The term "B (Defendant)" shall, in principle, act on behalf of A in all the necessary affairs from the redevelopment to the completion of the redevelopment project on the site provided by "B" to the general matters related to the implementation and the affairs of the partnership on behalf of A.

Article 4 (Method of Implementing Projects)

(3) Business promotion-related expenses shall be financed with interest free of charge from the selected contractor and used, and loans to Gap and loans to Eul (including loan out-of-the-counter and outside service expenses) shall be separately managed by separate accounts and shall be settled at the time of completion of the project.

Article 5 (Business Affairs and Contract Amount for Implementation of Projects by Proxy)

(1) The contract amount for the vicarious execution of a project to be paid to B shall be an amount calculated by multiplying the total sales amount determined at the time of sale after approval of the project by 5/100, and value-added tax shall be separately imposed.

Article 7 (Timing and Method for Payment of Service Costs of Executor)

(1) The time and methods for paying the contract amount under Article 5 to be paid by A shall be as follows:

1. 20% upon completion of designation of a district;

2. 10% when authorizing the establishment of an association;

3. 20% of the approval for the implementation of the project;

4. Approval for sale in lots and 20% in sale;

5. Authorization of a management and disposition plan: 20%;

6. 10% in cases of moving in after a pre-use inspection.

(2) B shall meet the requirements for the period of work related to the promotion of the project until the time of parcelling-out, as well as the usage of project costs and management expenses, with the amount of expenses to be incurred for the considerable period of time.

(3) Eul shall, in connection with the promotion of the project, borrow and pay the management expenses for Eul other than the provisions of each subparagraph of paragraph (1) and the external service expenses under Article 5 (2) to the City Corporation and settle accounts at the

2) On March 2003, Zone Four Cooperatives concluded a construction contract (hereinafter “instant construction contract”) with the Defendant, the executing agent, as a observer, as follows.

[Written Contract for Construction Works]

Article 4 (Method of Implementing Projects)

(2) The relocation expenses and project promotion expenses of the members of the association A (D Zone IV association) shall be paid to the members of the association A by lending the "A" to the defendant who is the project execution agent, and in such cases, the members of the association A and the members of the association shall pay the principal and interest on the loan, such as the relocation expenses borrowed from the "B" pursuant to Articles 39 and 40, and the principal and interest on the project promotion

Article 10 (Performance Bond and Liability for Contract)

(1) In order to guarantee the implementation of this contract, Gap and Eul shall establish executives and delegates as joint and several sureties, and Gap and Eul shall attend the defendant, who is the agent of the project, as " Byung," with the aim of guaranteeing the terms and conditions of this contract and confirming the terms and conditions of the contract, and Eul's contract guarantee shall substitute the general sale guarantee or construction guarantee of the Korea Housing Guarantee Corporation (if the institutional maintenance for the portion of parcelling-out by members is complete), but the expenses to be incurred for the implementation prior to the designation of a district (including the expenses already incurred) shall be borne by Byung.

Article 17 (Subsidization of Operating Expenses of Cooperatives and Subsidization of Operating Expenses of Cooperatives)

(2) The service cost of a soldier shall be claimed to Eul through consultation with a soldier, and the service cost of a soldier shall be paid to Byung.

§ 39.(Reimbursement and payment of construction cost, project promotion cost, project implementation cost, and project implementation cost)

(1) A shall pay the repayment and payment method of B's construction cost, project promotion cost, and performance service cost according to the base rate on the basis of the date on which sales price, etc. is deposited pursuant to Articles 22 and 23.

3) On April 7, 2003, the Plaintiff lent KRW 1.5 million out of KRW 300 million to the Defendant as a security deposit for the business participation of the instant case, to the Defendant by converting it into business promotion expenses, and around July 2004, the Plaintiff lent KRW 427,656,100 to the Defendant under the Defendant’s joint and several guarantee amount to four cooperatives as business promotion expenses.

4) As the instant construction contract was terminated due to the discontinuance of the instant project, the Plaintiff filed a lawsuit seeking the return of KRW 658,000,000 against the members of the Seoul Western District Court 2007Gahap7485 decided on June 25, 2008 against the members of the committee for promotion of the Seoul Western District Court 2007Gahap7485, the Plaintiff received a favorable judgment of the Plaintiff on June 25, 2008. A part of the members of the committee for promotion of district 4 partnership appealed appealed, but the said lawsuit was concluded pursuant to the compulsory adjustment on August

B. Determination as to the assertion on the claim of the cost of enforcement agency service

1) The defendant's assertion

According to the execution agency contract and construction contract of this case entered into with the plaintiff, the defendant has a claim of KRW 584,782,00 (total purchase price of KRW 97,463,830,00 x 2% of the execution service cost x 30% of the execution service cost at the time of designation of a district) against the plaintiff. Since only KRW 277,680,000, which is a part of the execution agency service cost of this case, was paid by the plaintiff, only KRW 307,102,00 (584,782,00-27,680,000) against the plaintiff, the remaining execution service cost of the above agency service cost of the plaintiff is set off to the extent equal to the above loan claim of the plaintiff.

2) Determination

On the other hand, it can be deemed that the defendant's right to claim the cost of the execution agency contract of this case was derived from the execution agency contract of this case. However, the parties to the execution agency contract of this case are not the plaintiff, but the defendant took part in the contract of this case for the purpose of guaranteeing the contents of the contract of this case and confirming the contents of the contract of this case. The contract of this case does not contain any content about the defendant's duty to provide the service. Article 17 (2) of the contract of this case stipulates that the execution service cost of this case against the defendant shall be claimed through consultation between the four district union and the defendant, and the plaintiff shall be paid to the plaintiff. However, considering all circumstances, it is difficult to view that the defendant has the right to directly claim the cost of the execution agency service under the execution agency contract of this case, and there is no other evidence to acknowledge this part of the defendant's assertion. Therefore, this part of the defendant's assertion is without merit.

C. Determination as to the assertion regarding claims, such as company operating expenses

1) The defendant's assertion

The Defendant subsidized KRW 174,00,000 to the four cooperatives under the name of operating expenses, etc. according to the resolution of the project promotion committee of this case on October 24, 2004, and requested the Plaintiff to settle the above amount paid by the Defendant on behalf of the Plaintiff on the basis of the instant enforcement agency contract and construction contract, but the Plaintiff did not pay it. The Defendant, in the preliminary case, offset the Plaintiff’s claim for the refund of the above settlement amount by the amount equivalent to the Plaintiff’s claim for the refund of the above loan

2) Determination

Article 4(3) of the enforcement agency contract of this case provides that "the expenses related to the promotion of the project of this case shall be free of interest from the selected contractor and used, the defendant directly claims the loan to the four district association and the loan to the defendant (including loan out-of-the-counter and outside service expenses) shall be managed separately, and the account shall be settled at the time of completion of the project." Article 4(2) of the construction contract of this case provides that "the relocation expenses of the members of the four district association and the promotion expenses of the project of the four district association shall be paid to the members of the four district association by the plaintiff to the defendant who is the execution agent." Thus, the plaintiff's obligation to pay the project expenses

However, the above obligation of the Plaintiff to lend the project cost of this case can only be acknowledged when the contract of this case remains effective. After the contract of this case is terminated, only the settlement of the loan, etc. of the Defendant and the fourth district associations will remain. However, since the contract of this case was terminated as seen earlier, the Defendant’s assertion on the loan of the project cost against the Plaintiff of this case on the premise of the maintenance of the project of this case is without merit.

D. Determination as to the assertion regarding the damage claim under a double service contract

1) The defendant's assertion

The Defendant performed services, such as the rental of the instant project, in accordance with the instant agency contract and the construction contract, and received the cost of the execution agency service. On August 18, 2005, the Plaintiff was not entitled to receive KRW 389,85,000, separately from the Defendant, according to the conclusion of the double administrative service contract with the dead C&D Co., Ltd. on August 18, 2005. As such, the Plaintiff is obligated to pay KRW 389,85,000 as compensation for damages incurred due to the nonperformance of the obligation. In addition, the Defendant is set off against the Plaintiff’s damage claim against the said Plaintiff to the extent that it is equal to the Plaintiff’

2) Determination

On the other hand, there is no evidence to deem that the Plaintiff given the status of exclusive exercise to the Defendant in accordance with the instant construction contract, so even if the Plaintiff entered into an administrative service contract with the Defendant separate from the Defendant, as alleged by the Defendant, it cannot be deemed that the Plaintiff breached its duty under the instant construction contract. Therefore, this part of the Defendant’s assertion is without merit to further examine the remainder of the point of view.

3. Conclusion

Therefore, the plaintiff's claim is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-hee (Presiding Judge)