2016 Gohap22031 Agreements

A

1. A stock company B;

2. C

December 13, 2017

January 31, 2018

1. The Defendants jointly pay to the Plaintiff the amount of KRW 750,00,000 and KRW 200,000,000,000, whichever is applicable, 10% per annum from March 1, 2015 to October 7, 2016, and 15% per annum from the next day to the day of full payment.

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

3. Paragraph 1 can be provisionally executed.

The text is the same as the order, except for a joint and several payment.1)

1. Basic facts

A. Status of the parties

1) On March 10, 1993, the D District Land Partition Association (hereinafter referred to as the "D District Association") was established for the purpose of the Ulsanbuk-gu Seoul Special Metropolitan City Land Readjustment Project (hereinafter referred to as the "D District Rearrangement Project") for the purpose of the Seoul Special Metropolitan City Readjustment Project for Nowon-gu Seoul Special Metropolitan City.

2) Defendant B Co., Ltd. (hereinafter referred to as “Defendant Co., Ltd.”) is a company engaging in housing construction business, etc., and Defendant C is a substantial operator. F is a person who was in office as an auditor of the D District Association until July 1, 2004 and was in office as a director from December 24, 2005, and the Plaintiff is F’s wife.

B. Conclusion of construction contract

D District Partnership entered into a contract for construction works with G Co., Ltd. (hereinafter referred to as “G”) around 2004 on the instant rearrangement project. After several times, the contract for construction works was modified on May 22, 2009, and the contract amount was determined as KRW 15,290,00,000 [The amount of the contract was + KRW 6,124,000,000 + the amount of the loan + + KRW 6,124,00,000 + the amount of compensation + office work + KRW 1,680,00,000 + KRW 700,280,000 + KRW 330,91,000 + farmland creation charges + KRW 2,412,710,000 + KRW 270,000,000 as the total amount of the land secured by the development recompense for land substitution plan, but the company substituted the project cost as the total amount of the land secured by G.

C. Conclusion of agreements on the acquisition of land allotted by the Defendant Company for recompense of development outlay

On May 22, 2009, Defendant Company entered into an agreement with D District Association and G with the following content:

O) The D District Association approves that G transfer of one lot of land secured for recompense of development outlay 28,406.8m2 (hereinafter referred to as “instant land secured for recompense of development outlay”) received from the D District Association to the Defendant Company, and then register land secured for recompense of development outlay as owned by the Defendant Company in the management ledger of land secured for recompense of development outlay.

O The Defendant Company paid KRW 5,00,000,000 out of KRW 12,508,925,419 of the purchase price in recompense for development outlay for development outlay, and paid KRW 7,508,925,419 in G in lieu of G in accordance with G’s flag and construction progress.

OD District Association shall neglect the construction, and may request the defendant company to suspend the payment of the balance of the purchase price when the project price falls short of the project price.

When the DD District Association has requested the Defendant Company to suspend, the Defendant Company shall immediately cease to pay the balance of the purchase price to G.

OD District Partnership may divide land allotted by the authorities in recompense for development outlay and transfer its ownership to a third party designated by the defendant company, if necessary for the implementation of the project at the request of the defendant company.

(d) Urging the progress of construction works of the D District Association and preparing a letter of undertaking to complete the responsibility of G;

From 2011 to 2015, the D District Partnership urged G and the Defendant Company to undertake reorganization projects several times, and on March 27, 2012, G and the Defendant Company drafted a letter of undertaking of completion of responsibility that “G is responsible for and completed the civil engineering works performed by the D District Association, and the Defendant Company guarantees it.”

E. A resolution of the board of representatives of the D District Association on January 20, 2015

On January 20, 2015, the D District Association held a representative meeting on January 20, 201, and decided to the effect that "G will consent to change the name of the land allotted by the authorities in recompense for development outlay as to the land owned by the defendant company on condition that the land secured by the authorities in recompense for development recompense for development outlay will be resolved to solve 13 pending issues of D District Association and that "G will be selected as the Si Corporation of D District Association on May 2004, it includes approximately 1,200,000,000,000 won (in conversion as of May 2015) invested in G as the deposit money of the association.

(f) Application for changing the name of the owner of land allotted by the defendant company;

1) On March 31, 2015, the Defendant Company sold one block 1-2 5,938.4 square meters of land allotted by the authorities in recompense for development outlay to the International Housing Association (hereinafter “I Association”) on March 31, 2015 in order to promote a new apartment construction project, and filed an application for change of the name of the owner on the register of land allotted by the authorities in recompense for development outlay with D District Association on April 14, 2015.

2) On April 20, 2015, the D District Association sent a reply to the purport that, if the pending issue is not resolved against the Defendant Company, it would not change the owner’s name, and that, to the related agencies in charge of the new apartment construction business of the I Association, it would notify the relevant agencies in charge of the I Association of the position of the D District Association along with the council’s

G. The reasons behind the preparation of the agreement between the Plaintiff and the Defendants, the payment of the deposit money of the Defendant Company

1) Meanwhile, around 2004, the Plaintiff and F (hereinafter referred to as the “Plaintiff, etc.”) leased KRW 300,000,000 to Defendant C with G debtor, and as a result, G and Defendant C agreed on May 17, 2004 that the Plaintiff, etc. shall implement the first agreement on the registration procedure for ownership transfer as to the 250 square meters adjacent to the apartment site adjacent to the apartment site abutting on the 15M road within the instant rearrangement project zone (hereinafter referred to as the “first agreement”). The main contents of the first agreement are as follows. On the other hand, after the conclusion of the first agreement of this case, F sold Ulsan-gu J land to G on December 28, 2006 and sold its ownership in KRW 94,50,000.

3) The purchase price of the land allotted by the authorities in recompense for development outlay shall be paid in full at the time of sale and purchase (as of May 17, 004).2. The sale price of the land allotted by the authorities in recompense for development outlay for development outlay for development outlay for development outlay for development outlay for development outlay for development outlay for development outlay for development outlay for development outlay for 15m wide roads in north-gu Seoul Metropolitan City, Ulsan-gu, the development recompense for development recompense for development recompense for development outlay for development outlay for development outlay for development outlay for development outlay for development outlay for 250 square meters: the sale price of the land shall be sold to the purchaser and the seller shall transfer the ownership to the purchaser within 3 days from the date of approval for the sale of the land allotted by the authorities in recompense for development recompense

2) When the instant rearrangement project was carried out on March 14, 2012, Defendant C, the Plaintiff, etc. modified the instant first agreement, and agreed to pay the Plaintiff KRW 1/2 equity and KRW 520,000,000,000, which was paid to the Plaintiff on July 26, 2011 by Defendant C, in lieu of the said KRW 520,000,000, and paid KRW 200,000 by December 31, 2012 (hereinafter “the instant second agreement”).

3) After that, on May 11, 2015, the Plaintiff, etc. and the Defendants changed the instant second agreement and agreed to guarantee the payment of KRW 1,050,000 to the Plaintiff by Defendant C, and thereby, the Defendant Company agreed to guarantee the payment of KRW 1,050,000 to the Plaintiff (hereinafter “instant third agreement”). The main contents of the instant third agreement are as follows.

The Plaintiff’s letter of agreement shall be “A” and the Defendant C shall be agreed upon as follows: (a) on March 14, 2012, the attachment confirmation issued by G to “A” shall be revoked and instead, “B” shall be paid to “A” the amount of KRW 1,050,000 per day. (b) on February 1, 201, the payment date shall be as follows: (c) on April 3, 201, the amount of KRW 300,000 per day: (d) the amount of KRW 200,000 (2) the amount of KRW 200,000,000 (3) at the time of authorization of the regional housing construction association: (d) the amount of KRW 550,00,000: (e) the date of authorization of the regional housing construction project association; (e) the date of this agreement on February 28, 2016 under the premise that the Defendant Company “A” will be subject to the change of the Plaintiff Association under the name of the Defendant C;

4) After May 27, 2015, the Plaintiff, etc. and the Defendants revoked the third arrangement, and Defendant C paid the Plaintiff KRW 1,050,000,000 to the Plaintiff, and the Defendant Company agreed to guarantee the said payment obligation by Defendant C (hereinafter “instant agreement”). The main contents of the instant agreement are as follows.

The plaintiff of the agreement shall be "A" and the defendant C shall be agreed upon as follows: on May 11, 2015, the attachment agreement agreed between the plaintiff and the defendant C shall be revoked. On March 14, 2012, the attachment commitment issued by G to "A" shall be revoked and instead, "B" shall be paid to "A" in the amount of KRW 1,050,000 ( KRW 1,050,000).3. The payment of the above amount shall be KRW 300,000 ( KRW 300,000:0: 2:0,000,000 at the time of the agreement: 3:00,000:0:0 per annum from the following day to October 31, 2015: The payment shall be made by the guarantor within the period of 20:0,000 per annum 3:0,000,000 per annum 3:00,2016."

5) On May 29, 2015, Defendant Company paid KRW 300,000,000 to the Plaintiff for Defendant C.

[Reasons for Recognition] A without dispute, Gap evidence 1 through 12, 15, 19, 20 evidence, Eul evidence 4 and 5, witness F's testimony, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

In around 2004, the Plaintiff lent KRW 300,000 to Defendant C, and the Defendant C agreed to transfer to the Plaintiff the land adjacent to the apartment site abutting on the 15M road within the instant rearrangement project zone. However, as the value of the said site is increased, the Plaintiff and the Defendant C agreed to pay KRW 1,050,000 to the Plaintiff by concluding the instant and the instant agreement in sequence, and the Defendant C promised to pay KRW 1,050,000 to the Plaintiff. However, the Defendants guaranteed the above obligation of Defendant C. However, the Defendants did not pay KRW 300,000 out of the obligation under the instant agreement, and the Defendants were jointly and severally liable to pay the remainder of KRW 750,000 under the instant agreement and the damages for delay thereof.

B. The defendants' assertion

1) Defendant C borrowed KRW 300,000,000 from the Plaintiff, etc. around 2004, and purchased a forest of Ulsan-gu in the name of G in KRW 94,500,000 from December 28, 2006 and bears the Plaintiff, etc. totaling KRW 394,50,000 and the obligation to pay the loan and the purchase price. Defendant C bears the obligation on December 28, 2004.

From July 26, 2011 to July 26, 2011, the Plaintiff et al. repaid a total of KRW 508,322,780 to the Plaintiff et al., the claims against Defendant C et al. were extinguished by the said repayment.

2) On March 31, 2015, Defendant Company sold land allotted by the authorities in recompense for development outlay to I, and filed an application for change of the name of owner at the site of the land allotted by the authorities in recompense for development outlay with the Association. The Plaintiff’s husband F refused, despite the knowledge that I would not obtain approval of the apartment housing project if I were to be issued by the authorities in recompense for development recompense for development recompense for development recompense for development recompense for development recompense for development outlay, the Plaintiff refused to change the name unless I would resolve the pending issues following the resolution of the board of representatives of the Association. The Defendant Company demanded that I would not approve the apartment housing project in the name of Ulsan Metropolitan City and Ulsan Metropolitan City under the name of the D District Association, demanded that I would be the executor of the apartment housing project, Hansan Construction Co., Ltd., which is the contractor of the apartment housing project, and one asset management trust which is the trustee. The Defendant Company concluded the instant agreement due to the coercion of such F, and the Defendant Company guaranteed the obligation of the above C.

C. The defendant company's assertion

Since Defendant C, as the principal obligor, has the ability to repay the obligation under the instant agreement, the Plaintiff should first seek the payment of the loan under the instant agreement to Defendant C.

3. Determination

A. Determination on the cause of the claim

The Plaintiff and the Defendants paid KRW 1,050,000,000 to the Plaintiff on May 27, 2015, and KRW 300,000,000 shall be paid at the time of an agreement, and KRW 200,000,000 shall be paid until October 31, 2015, and KRW 550,000,000 shall be paid until February 28, 2016, and the Defendant agreed to pay damages for delay by 10% per annum from the date following the date of payment, unless the payment is made within the due date. The Defendant Company paid damages for delay to the Plaintiff.

The fact that the instant agreement is concluded to guarantee Defendant C’s obligation, and the fact that the Defendant Company paid KRW 300,000,000 to the Plaintiff according to the instant agreement is as seen earlier. According to the foregoing facts established, the Defendants jointly as the debtor and the guarantor, and as regards KRW 750,000,000, and KRW 200,000,000, which is the following day of the due date, are liable to pay damages for delay from March 1, 2016, which the Plaintiff seeks from November 1, 2015, 550,000,000, which is the following day after the due date.

B. Determination as to the Defendants’ assertion

1) Determination as to the defendants' defense of payment

The Defendants asserted that, until July 26, 201, Defendant C paid KRW 508,32,780 to the Plaintiff, etc. for debt settlement of KRW 108,32,780, and that the Defendant C paid KRW 200 to the Plaintiff all of its debt settlement of KRW 30,000,000 for the above loan settlement of KRW 20,000,000 for the above loan settlement of KRW 10,000,000 for KRW 20,000,000 for the above loan settlement of KRW 20,000,000 for the above loan settlement of KRW 30,000,000,000 for KRW 20,000,000 for the loan settlement of KRW 20,000,000,000 for the above loan settlement of KRW 20,000,000,00 for the above loan settlement of KRW 27,011.

2) Determination as to the assertion of revocation of declaration by duress

A) The Defendants sold land allotted by the Defendant Company to I, on March 31, 2015, to the Korea Development Bank. The auditor of the Korea Development Bank was aware of the fact that the Plaintiff Company could not obtain approval for multi-family housing business if the Plaintiff Company did not receive the certificate of land allotted by the authorities in recompense for development outlay, but was unable to obtain the approval for multi-family housing business on the ledger of land allotted by the authorities in recompense for development recompense for development recompense for development outlay for the Defendant Company, and demanded the Ulsan Metropolitan City and Ulsan Northern District Association not to grant approval for multi-family housing business under the name of the D District Association, and send the proof that multi-family housing business is not available to the G District Association, which is the operator of the multi-family housing business, the Korea Development Bank, the Korea Development Bank, and the trustee, and the Defendant C concluded the instant agreement with the terms of the change in the name of land allotted by the authorities in recompense for development recompense for development recompense for development outlay for development outlay for development outlay for development purposes. Furthermore, the instant agreement concluded by the Defendant F’s broker’s notification of cancellation of the Defendant C’s guarantee agreement was cancelled 2.

B) On March 31, 2015, the Defendant Company sold part of the land allotted by the authorities in recompense for development outlay to the International Association on March 31, 2015, and applied for the change of the name of the owner on the ledger of the land allotted by the authorities in recompense for development outlay on April 14, 2015, and the Plaintiff’s husbandF paid KRW 1,200,000 to the Defendant Company on April 20, 2015, on the ground that the Plaintiff’s husbandF made a resolution of the board of representatives to the board of representatives on April 20, 2015, “if the issue of the claim amounting to KRW 1,200,000 is not resolved, the change of the name of the owner on the ledger of the land allotted by the authorities in recompense for development outlay is impossible.” The Defendants, on May 27, 2015, concluded the instant agreement with the Plaintiff and sent it to the Plaintiff on May 29, 2015.

However, in full view of the evidence mentioned above and evidence Nos. 18 as well as the following circumstances acknowledged by adding up the purport of the entire pleadings, it is insufficient to recognize that the instant agreement was concluded by the coercion of the Plaintiff, etc., or that the Defendant Company guaranteed the Plaintiff’s obligation to the Plaintiff under the instant agreement by the Plaintiff, etc., and there is no other evidence to acknowledge it. Accordingly, the Defendants’ aforementioned assertion is without merit.

① The Defendants compared and compared the losses that may be incurred by the delay in the process of changing the names of owners in the registry of land allotted by the authorities in recompense for development outlay, and the losses that may be incurred by accepting the resolution matters of the D District Association due to the delay in the procedure of changing the names of owners in the registry of land allotted by the authorities in recompense for development outlay, and concluded that accepting the resolution matters of the D District Association on May 27, 2015 is more profit.

② In light of the fact that the contractor’s failure to complete construction and the contractor’s obligation to pay the construction price are in simultaneous performance relations, and that the D District Association transferred the land allotted by the authorities in recompense for development outlay in lieu of the payment of the construction price to G but failed to complete G rearrangement projects, it is difficult to evaluate that the D District Association was illegal to not cooperate with the Defendant Company’s application for change of the name of the land allotted by the Defendant Company, which

③ In fact, G and the Defendant Company are in close relationship with each other, even if G did not complete the reorganization project, it is difficult to conclude that the D District Partnership’s demand for resolution of pending issues, such as the payment of partnership operating expenses, to the Defendant Company, which is the construction guarantee company through a resolution of the board of representatives, is unreasonable solely on the ground that the sales value of G was owned by the land allotted by the authorities in recompense for development outlay equivalent to KRW 12,508,925,419, and that the Defendant Company owned the land secured for development outlay, the sales value of which is KRW 12,508,925,419, and that it cannot be readily concluded that the act of the person with superior position was unlawful solely because the person

④ On May 17, 2004, while lending KRW 300,000,00 to G, the Plaintiff entered into the instant secondary agreement with G to purchase KRW 250,000 adjoining to the site of apartment (in the land of joint development recompense) adjoining to the road located 15m wide from the instant rearrangement project zone, and decided to substitute loans for the payment of KRW 300,000,000,000. Thereafter, on March 14, 2012, the Plaintiff agreed to receive KRW 1/2 shares in the development recompense land and KRW 200,000,000,000, and the Defendant guaranteed the obligation to the Plaintiff on behalf of the existing Plaintiff through the instant agreement to guarantee the obligation to the Plaintiff on May 11, 2015, and the Plaintiff guaranteed the obligation to the Plaintiff on May 30, 2005.

According to the above facts, the Defendants concluded a contract with the Plaintiff as part of the land secured for the recompense of development outlay, although they decided to pay the Plaintiff the loan debt to the Plaintiff as part of the land secured for the recompense of development outlay, due to the increase in the value of the land secured for the recompense of development outlay, it seems to have concluded the agreement with the Plaintiff and the instant

⑤ On August 14, 2017, the Ulsan District Prosecutors’ Office requested that “F return 1,200,000,000 won of investment money invested in Defendant C” to Defendant C, and if it fails to comply with the request, it would not cause any change in the name of the owner on the ledger of land allotted by the authorities in recompense for development outlay for development outlay, and would be paid in installments on May 11, 2015.” On May 29, 2015, the Ulsan District Prosecutors’ Office received an agreement that “I will not cause any change in the name of the owner on the ledger of land allotted for development recompense for development outlay for development outlay for payment of KRW 1,050,000 on the condition that the change in the name of the owner on the ledger of land allotted for development outlay for development outlay for development outlay for development outlay for development,” and issued a non-prosecution disposition on May 29, 2015.”

3) Determination as to the defense of the highest search by the Defendant Company

Since Defendant C, as the principal obligor, has the ability to make a claim, the Plaintiff raised the highest and search defense against Defendant C, the Plaintiff can exercise the right of defense against the guarantor’s highest and search to the principal obligor in cases where the guarantor proves that the principal obligor has the ability to make a reimbursement and that it is easy to execute the claim. However, there is no evidence to recognize that Defendant C has the ability to make a reimbursement and its execution is easy, the defense of the Defendant Company does not need to be examined further.

C. Sub-committee

Therefore, Defendant C and the Plaintiff, the primary debtor of the instant agreement, have increased the debt of Defendant C to the Plaintiff, jointly with the Plaintiff at KRW 750,000,000,000, and KRW 200,000,000,000, the following day following the date of the payment, as for the payment for the amount of KRW 750,000,000.

From March 1, 2016 to October 7, 2016, the Plaintiff is obligated to pay damages for delay calculated at each rate of 10% per annum as stipulated in the instant agreement and 15% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the following day of the due date to the date of full payment.

4. Conclusion

Therefore, the plaintiff's claim against the defendants of this case is reasonable, and it is so decided as per Disposition by citing all of them.

Judges in the future;

Judge Lee Jong-soo

Judge Lee Jong-chul

1) Although the Plaintiff seeks to jointly pay to the Defendants, Defendant C and Defendant B are in the relationship of the debtor and simple guarantor, the Plaintiff is ordered to jointly pay.

2) Since land allotted by the authorities in recompense for development outlay was divided into four parcels, including one block, 1-1 lot, 1-2 lot, 1-3 lot, etc.

3) It seems that 'burine' is a clerical error in the land allotted by the authorities in recompense for development outlay.