1. The provisions of Article 11 of the former Enforcement Decree of the Act on the Promotion of Real Estate and the Protection of Real Estate and the Protection of Real Estate)

Defendant (Attorney Kim Jong-sung, Counsel for the defendant-appellant)

September 6, 2016

Cheongju District Court Decision 2014Gahap3815 Decided October 7, 2015

1. Of the judgment of the court of first instance, the part against the defendant in excess of the amount ordered to be paid below shall be revoked, and the plaintiff's claim corresponding to the revoked part

The defendant shall pay to the plaintiff KRW 1,301,490,000.

2. The defendant's remaining appeal is dismissed.

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

1. Purport of claim

The defendant shall pay to the plaintiff 1,301,490,000 won with 5% interest per annum from December 1, 2012 to the delivery date of the complaint of this case, and 20% 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.

1. Quotation of judgment of the first instance;

This court's reasoning is that the defendant's argument added in the trial of the court of first instance to "the defective price of the resolution" in the fifth and half of the judgment of the court of first instance as "the resolution", and that the defendant's argument added in the trial of the court of first instance is further determined in the following Paragraph 2, and except that the first and the first to the first to the first to the first to the second to the second to the second to the second to the second to the same part as the corresponding part of the judgment of the court of first instance. Thus, this court shall accept

2. Additional determination

A. The defendant's assertion

1) The plaintiff is a clan that is the foundation of the Si of the 59-year Hunting clan. The non-party clan is a clan that consists of those who participate in the memorial events of the above ancestor and who are based on △△ Village among the descendants of the non-party 59-year Hunting Hunting Hunting Ma, the non-party 57-year Hunting Hunting Hun, the non-party Hunting Hunting Hunting Ma, and the descendants of the non-party 59-year Hunting Hunting Hunting Hun.

2) The Plaintiff’s assertion of invalidity of the instant sales contract violates the principle of trust and good faith and the principle of good faith.

B. Determination

1) As to the assertion that the party to the sales contract of this case is Nonparty

First of all, it is not sufficient to recognize that the testimony of the non-party 3 of the witness of the public health team and the trial of the political party that the non-party 1 argued by the defendant, in addition to the plaintiff's clan, has formed the common property and continuously engaged in social activities separate from the plaintiff's clan, and there is no other evidence to recognize otherwise.

Therefore, the defendant's above assertion is without any need to examine the remainder of the issue.

2) As to the assertion of violation of the good faith principle

The principle of trust and good faith is an abstract norm that the parties to a legal relationship should not exercise their rights or perform their duties in a way that violates the principle of trust and good faith, taking into account the other party’s interests, and thus, in order to deny the exercise of such rights on the ground that it violates the principle of trust and good faith, the other party has provided trust to the other party, or the other party has been justified from an objective view of trust and good faith, and the exercise of rights against such other party’s trust should reach an extent that is not acceptable in light of the concept of justice (see Supreme Court Decision 9Da53490, May 15, 2001, etc.).

In light of the above legal principles, it is justifiable for the Plaintiff to seek recovery of the Plaintiff’s property that some of the members of the Plaintiff arbitrarily disposed of. Therefore, it cannot be viewed as unacceptable in light of the concept of justice. In addition, the Plaintiff’s assertion that the sales contract of this case is null and void cannot be deemed as contrary to the principle of good faith.

Therefore, the defendant's above assertion is without merit.

3. Parts to be dried;

c. Scope of return

1) As seen earlier, the instant sales contract is null and void. As such, the Defendant is obligated to return to the Plaintiff the purchase price of KRW 1,301,490,000 paid pursuant to the instant sales contract as unjust enrichment.

2) The Plaintiff also sought for the payment of damages for delay of the above purchase price. If a sales contract becomes null and void, both parties are in a simultaneous performance relationship. In this case, even if one party’s repayment period arrives, the obligor is not liable for delay of performance until the other party’s repayment is made. Such effect does not necessarily result in the claimant who is not liable for delay of performance exercise his right to defense of simultaneous performance (see Supreme Court Decision 97Da54604, 54611, Mar. 13, 1998, etc.).

In light of the above legal principles, since the sales contract of this case is null and void, the plaintiff is obligated to perform the procedure for the registration of cancellation of ownership transfer with respect to the real estate of this case to the defendant. This is related to the defendant's obligation to return the purchase price and the plaintiff is not required to provide the documents necessary for the cancellation registration of ownership transfer in order for the plaintiff to omit the defendant in delay, but at least the above documents should be prepared to prepare for the above documents and notify the defendant of the intention to return the purchase price and to receive it in addition to the return of the purchase price. However, since there is no assertion or proof by the plaintiff in this case,

D. Sub-committee

Therefore, the plaintiff's claim is reasonable within the extent of the above recognition.

4. Conclusion

Therefore, the plaintiff's claim is justified within the above recognized scope and the remaining claims are dismissed as it is without merit. Since the judgment of the court of first instance is unfair with a different conclusion, part of the defendant's appeal is accepted, and the part against the defendant who ordered payment exceeding the above recognized scope is revoked, and the plaintiff's claim corresponding to the revoked part is dismissed, and the defendant's remaining appeal is dismissed as it is so decided as per Disposition.

Judges Lee Jae-soo (Presiding Judge)