2018da58183 Action for a claim for return, such as sale price,

1. A;

2. B

[Judgment of the court below]

1. C:

2. D Co., Ltd.

Defendants Law Firm LLC (LLC)

Attorney Cho Il-sung et al.

July 19, 2019

August 23, 2019

1. The plaintiffs' claims against the defendants are all dismissed.

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

Defendants shall be jointly and severally liable to the Plaintiff A with 6% interest per annum from November 12, 2016 to the service date of a copy of the instant complaint; 15% interest per annum from the next day to the date of full payment; and 15% interest per annum from the next day to the date of delivery of a copy of the instant complaint to the date of full payment; 2% interest per annum from the 146,792,540 won to the date of full payment; and 23,592,590 won from May 28, 2017 to the date of full payment; and 3% interest per annum from the next day to the date of full payment to the date of full payment; 3% interest per annum from the 146,792,540 won to the date of full payment; 45,901,840 won to the Plaintiff A with 15% interest per annum from the next day to 35% interest per annum to the 16.5% interest per annum; 36% interest per annum from March 16, 2017.

1. Facts of recognition;

A. Conclusion of a supply contract between the plaintiffs and defendant C

1) From November 14, 2016 to March 15, 2017, between Defendant C Co., Ltd. (hereinafter “Defendant C”), E, F, G Co., Ltd. and Defendant C Co., Ltd. (hereinafter “Defendant C”), the Plaintiffs entered into a supply contract under which the Plaintiffs would purchase part of the guest rooms on the land, H, and I (hereinafter “instant hotel”) located on the H of Pyeongtaek-gun, Gangwon-do (hereinafter “instant hotel”). The guest rooms purchased by the Plaintiffs and the sales price to be paid by the Plaintiffs are as listed in the following table.

(unit: Won. The date on which the money is to be paid shall refer to the date of payment).

A person shall be appointed.

A person shall be appointed.

2) Of the terms of the instant supply contract, the contents relating to the instant case are as follows.

| 공급계약서준공예정일: 2018년 03월(입주예정일은 공정에 따라 변경될 수 있으며, 정확한 입주일은추후 개별 통보)위 표시 재산을 공급함에 있어 매도인 주식회사 C(이하 “갑” 이라 한다), 매수인(이하“을” 이라 한다), 시공사 주식회사 E “병1" 주식회사 F “병2” (이하 “병1”, “병2" 를 통합하여 “병” 이라 한다), 분양관리신탁 및 대리사무신탁사 G주식회사(이하 “정”이라 한다)는 다음과 같이 공급계약을 체결한다.제11조 (계약의 해제)③ “을”은 다음 각 호의 사유로 본 계약을 해제할 수 있다.(3) “갑” 의 귀책사유로 인하여 입주가 당초 입주예정일로부터 3개월을 초과하여 지연된경우. 단, 천재지변 등의 불가항력적인 사유로 인해 입주가 지연될 경우에는 이를 사유로 “을”은 “갑” 에게 본 계약의 해지 또는 해제를 요구할 수 없다.제12조 (위약금 및 반환금)① 본 계약서 제11조 제①항(단, 6호 제외), 제②항, 제③항 제1호에 해당하는 사유로 본 계약이 해제된 때에는 분양금액 총액의 10%에 해당하는 금액을 위약금으로 “갑” 에게 귀속되며, 이에 대하여 “을”은 이의를 제기하지 못한다.③ 제11조 제③항(단, 1호 제외)의 사유로 계약이 해제된 경우에는 “갑”은 “을” 에게 총분양대금의 10%를 위약금으로 지불한다.

3) The Plaintiffs paid the down payment to G Co., Ltd., a trust company, in accordance with the instant supply contract.

B. Transfer of the Defendants’ executive position

On January 24, 2018, the Defendants entered into a loan-type land trust contract for the instant new hotel construction business, and Defendant D Co., Ltd (hereinafter “Defendant D”) transferred the status of the seller of the instant hotel from Defendant C. The owner of the instant hotel was changed from Defendant C to Defendant D on March 9, 2018.

C. The plaintiffs' notification of cancellation of the supply contract of this case

1) On June 15, 2018, Plaintiff B had been able to have the Defendants occupy the instant hotel on March 2018 according to the instant supply contract. However, even until June 2018, Plaintiff B failed to complete the instant hotel. As such, in the event that the instant supply contract is not completed by the end of June 2018, Plaintiff B rescinded the instant supply contract pursuant to Article 11(3)(3) of the instant supply contract, and (2) in the event that the instant supply contract is rescinded, the event and the trustor returned the down payment received from the Plaintiff B and the interest thereon and paid a penalty pursuant to Article 12(3) of the instant supply contract.

2) On August 14, 2018, Plaintiff A had been able to allow buyers to move into the instant hotel on March 2018 according to the instant supply contract, but the Plaintiff failed to complete the instant hotel until August 2018. As such, Plaintiff A revoked the instant supply contract pursuant to Article 11(3)(3) of the instant supply contract, and ② In the event that the instant supply contract is rescinded, Plaintiff A and the trust agent returned the down payment received from Plaintiff A and the interest thereon and paid penalty pursuant to Article 12(3) of the instant supply contract.

D. Notice of cancellation of contract to the plaintiffs of defendant C

1) On May 15, 2018 and June 4, 2018, Defendant C urged the Plaintiffs to pay part payments once the instant supply contract in arrears.

2) On July 9, 2018, Defendant C sent to the Plaintiff a document stating that the instant supply contract is rescinded on the grounds of unpaid intermediate payments, and that the down payment received from the Plaintiff A shall be reverted to the penalty for breach of contract.

3) Defendant C, as Seoul Northern District Court 2018Kao20187, filed an application for service by public notice on cancellation of contract with the content that the instant supply contract is cancelled on the grounds that Plaintiff B would not pay part payments to Plaintiff B and that the down payment received from Plaintiff B would be attributed to penalty, and received the decision on November 28, 2018.

E. Guidance on the designation of the defendants' entry room

On October 11, 2018, the Defendants announced that the instant hotel was scheduled to obtain approval for use on October 23, 2018 for the buyers of the instant hotel, and that the period of designation of the entrance room was from October 10, 2018 to December 28, 2018.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 7, 9, Eul evidence Nos. 1, 2, 4 through 6 (including various numbers), the purport of the whole pleadings

2. Determination as to the claim against Defendant C

A. The parties' assertion

1) The plaintiffs' assertion

A) Defendant C did not complete the instant hotel even before August 2018, which was five months from March 2018, the scheduled date for completion of the instant hotel. Accordingly, on June 15, 2018, Plaintiff C expressed his/her intent to cancel the instant supply contract if the instant hotel was not completed by the end of June of the same year, and Plaintiff A expressed his/her intent to cancel the instant supply contract on August 14, 2018 on the ground of the failure to complete the instant hotel. Since the instant supply contract was lawfully rescinded by the Plaintiffs’ declaration of intent to cancel the contract, Defendant C is obligated to return the down payment to the Plaintiffs and pay 10% of the sales price as penalty pursuant to Article 12(3) of the instant supply contract.

B) Defendant C asserts that the instant supply contract was rescinded due to the Plaintiffs’ failure to perform the duty to pay the mid-term contract. However, the contractual clause that stipulates that the contract may be rescinded upon the Defendant C’s failure to perform the duty of completion falls under Article 1 subparag. 1 and Article 9 subparag. 3 of the Regulation of Standardized Contracts Act, and thus, the termination of the contract made by the Defendant C is invalid.

2) Defendant C’s assertion

A) The right to cancel the contract under Article 11(3)3 of the instant supply contract may arise when the occupancy is delayed for more than three months from the scheduled date of occupancy. Since the scheduled date of occupancy at the time when the plaintiffs expressed their intent to cancel the contract does not have been designated at the time of the plaintiffs' declaration of intent to cancel the contract, the termination of

B) The Plaintiffs paid only the down payment of the instant supply contract and did not pay the intermediate payment. Defendant C, upon cancelling the instant supply contract on the grounds that the part payment was not paid by the Plaintiffs, reverted to Defendant C with the down payment paid by the Plaintiffs pursuant to Article 12(1) of the said contract as penalty. As such, Defendant C has no obligation to pay the down payment and penalty to the Plaintiffs.

B. Determination

1) As the completion date of the instant supply contract was determined on March 3, 2018, the scheduled date of occupancy can be changed according to the process, and the accurate occupancy date is later notified. The fact that Article 11(3)3 of the instant supply contract provides that the purchaser may rescind the instant supply contract if the occupancy is delayed for more than three months from the scheduled date of occupancy due to a cause attributable to the Defendant C, as seen earlier. The fact that the hotel of this case was completed on October 30, 2018 and the buyer could have occupied the instant hotel from October 30, 2018 is not disputed between the parties.

2) In addition to the circumstances that are the contract for the building scheduled to be constructed, not as completed, the instant supply contract should be deemed to have reached an agreement between the Plaintiffs and Defendant C regarding the occupancy time of the instant hotel, rather than setting the fixed time limit due. The indefinite time limit should be deemed to have been the time when the reasonable construction delay period, which can be anticipated in light of the progress of the instant hotel construction and the socioeconomic situation, should be deemed to have lapsed (see, e.g., Supreme Court Decision 2000Da7936, Nov. 28, 2000).

3) As seen earlier, ① on June 15, 2018, when Plaintiff B declared the intention of cancelling a contract, and August 14, 2018, when Plaintiff A expressed the intention of cancelling a contract, the period from March 10, 2018 to August 14, 2018, which is three and five months after the scheduled date for completion of the instant supply contract, and ② the scheduled date for occupancy in the instant supply contract can be changed according to the fairness. As such, the Plaintiffs were aware that the completion of the hotel in this case may be delayed. ③ The Plaintiff A did not pay the first intermediate payment of K on January 10, 2017, and the first intermediate payment of J-10, August 10, 2017, and the remaining part payment of the intermediate payment of which the Plaintiffs could not be paid from 10 months to 10 months after the scheduled date for termination of the contract, in light of the socioeconomic evidence presented by Plaintiff B-Do 10 to 20 days after the expiration of the contract.

4) Therefore, the Plaintiffs’ rescission of the instant supply contract premised on the premise that the time when the Plaintiffs expressed their intent to cancel the contract came to the due date for the delivery of the hotel room and that Defendant C delayed the performance of the above obligation does not have any effect. As long as the instant supply contract cannot be deemed to have been rescinded by the notification of the Plaintiffs’ cancellation, the Plaintiffs’ claim seeking the return of the down payment and the payment of penalty is without merit.

3. Determination as to the claim against Defendant D

A. The plaintiffs' assertion

1) The primary argument

Defendant D transferred the position of the seller (execution company) from Defendant C. Since the instant supply contract was cancelled in accordance with the Plaintiffs’ declaration of intent to cancel the contract, Defendant D, who transferred the status of enforcement company, is obligated to return the down payment to the Plaintiffs and pay the penalty.

(ii) the first preliminary assertion.

Since the Plaintiffs did not consent to the change of the seller (execution company) of the Defendants, notwithstanding the conclusion of a loan-type land trust contract by the Defendants, Defendant C enforcement company and Defendant D’s trust company in relation to the Plaintiffs, notwithstanding the conclusion of the loan-type land trust contract by the Defendants. Defendant C has the right to demand the settlement of the purchase price to be returned to the buyer in preference to the buyer in the event that the sale contract is cancelled pursuant to Article 3(1)3 of the Enforcement Decree of the Act on Sale of the Building in accordance with the loan-type land trust contract (hereinafter referred to as “right to demand settlement”). Defendant D has the obligation to return the down payment to the Plaintiffs who exercise the right to demand settlement and pay the penalty.

(iii) the second preliminary assertion.

Since the Plaintiffs did not consent to the change of the seller (execution company) of the Defendants, Defendant D had withdrawn from the supply contract of this case. Defendant D received KRW 45,167,10, and KRW 73,396,270 from the Plaintiff as the sale price, even though they were not the parties to the supply contract of this case, and thus, Defendant D has a duty to return each of the above money to the Plaintiffs as unjust enrichment.

B. Determination

The plaintiffs' claims against the defendant D are premised on the cancellation of the contract of this case by the plaintiffs' declaration of termination of contract. However, as seen in the above 2.b. 4, it cannot be deemed that the contract of this case was terminated by the plaintiffs' declaration of intent. Thus, the plaintiffs' claims are without merit without examining the status and rights and obligations of the defendant D.

4. Conclusion

Therefore, the plaintiffs' claims against the defendants are dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, judges, discretionary leaves

Judges Kim Gin-han

Judges Shin Shin-chul