[1] Whether a housing reconstruction association's member is obligated to pay value-added tax on the sale price (negative)

[2] The case holding that in case where a housing reconstruction association's construction company received a direct payment of the purchase price including the amount equivalent to value-added tax from its members and appropriated it for the claim for construction price, members can cancel it as a legal act due to an error in agreement on the payment of value-added tax during the sales contract concluded between the construction company and the housing reconstruction association, and accordingly, the sales company has the duty to return

[1] Among the reconstruction projects implemented by the housing reconstruction association organized by its members for housing improvement, the members of the association are in the actual final consumer status from the construction to the sale in lots, and even if the association takes the form of selling the housing to its members, it cannot be deemed that the association supplied the goods to its members. Therefore, even if the association purchases an apartment house of a size exceeding 33 square meters supplied without compensation to its members, there is no legal obligation to bear value-added tax on the sale price.

[2] The case holding that it is reasonable to view that each value-added tax should be refunded to the members of the housing reconstruction association without legal cause, on the grounds that the amount equivalent to value-added tax out of the sale price is not legally obligated to be borne by the members of the housing reconstruction association, and the members of the housing reconstruction association can be cancelled as a legal act due to mistake in the agreement on the payment of value-added tax in the sale contract concluded with the construction company and the housing reconstruction association, and the construction company has actually conducted the sale business of the reconstruction project and acquired the additional sales price, including the amount equivalent to value-added tax, directly paid from the members of the housing reconstruction association and received the additional sales price from the members of the housing reconstruction association.

[1] Article 1 of the Value-Added Tax Act / [2] Article 108 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Yellownam-ju and 19 others (Attorneys Lee this-soo et al., Counsel for the plaintiff-appellant)

South Mine Construction Co., Ltd. (Attorney Final White-gu et al., Counsel for the defendant-appellant)

1. The defendant shall pay 9,094,636 won each of the above amounts to the plaintiff Ynam-gu, Yandong-gu, Lee Jong-gu, Lee Jong-hee, Lee Jong-hee, Lee Jong-hee, Kim Young-gu, Lee Jong-ho, Lee Jong-ju, Lee Jong-ho, Lee Jong-ho, Lee Jong-ho, Lee Jong-ho, Lee Jong-ho, Lee Jong-ho, Lee Jong-ho, Lee Jong-ho, Lee Jong-ho, Lee Jong-ho, Lee Jong-ho, Lee Jong-ho, Lee Jong-ho, Lee 1,541,727 won each of the above amounts to the plaintiff Yung-young, Lee Jong-young, Lee Jong-young, Lee Jong-young, Lee Jong-young, Lee Jong-young, Lee, Lee Jong-young, Lee Jong-young, Lee Jong-ho, Lee 1,500 won each of the above amounts, from March 13, 1998 to the 2nd half of the same year, the 2nd of the plaintiff 1, Kim Jong-ho-ho, Lee Jong-dong and Lee 2.

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

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Facts of recognition;

The following facts are not disputed between the parties, or there is no conflict between Gap evidence 1, Gap evidence 2, Eul evidence 4-1 through 20, Eul evidence 5-1 through 20, Eul evidence 2-1 through 4, Eul evidence 6-1 through 10, Eul evidence 6-1 to 6-10, and the result of fact inquiry to the head of Gwanak-gu office of the party members, and there is no counter-proof.

A. At around 1994, the plaintiffs and 103 others (hereinafter referred to as "members") who owned a mountain village village house and commercial building on the land of 1686,809 m2, 1686 m2, 1689 m2 were organized by the non-party 103 association for the purpose of removing the existing old village house and commercial building in accordance with Article 44 of the Housing Construction Promotion Act and constructing new apartment and its incidental facilities on the site of the reconstruction project (hereinafter referred to as "non-party 1 association approved the reconstruction association from the competent office on May 31, 1994").

B. On September 16, 1995, the non-party association concluded a construction contract (based on a provisional contract concluded on January 13, 1994) between the defendant company and the defendant company as a contractor for the above reconstruction project and the project execution agent. The main contents are as follows.

(1) The non-party association provides the defendant company with a size of 1686,809.4 square meters, which is owned by its members, as a site for the above reconstruction project, and the defendant company newly constructs apartment (373 households) and its appurtenant facilities on its ground and supplies 33 square meters to each member of the company without compensation (8 square meters for exclusive use) and underground parking lots (8 square meters for exclusive use), while appropriating the construction expenses and all business expenses with the proceeds from the general sale of the remaining apartment and its appurtenant facilities.

(2) The sale of apartment houses (members and the general sale of apartment units) and auxiliary facilities shall be conducted in the name of the non-party partnership in accordance with the relevant laws and regulations, and the defendant company shall become the principal agent, and the non-party partnership and its members may not raise an objection to the sale of the

(3) If the members want to purchase an apartment with a size exceeding 33 square meters, they shall give priority to the members, but the members shall pay the difference after deducting 33 square meters of the general purchase price of the apartment, which includes 4% options, from the sale price of the apartment to be sold.

C. The Plaintiffs filed an application for the sale of an apartment with a size exceeding 33 square meters, such as the relevant application for parcelling-out, apartment, and letter in square column, respectively, concluded a contract for the sale of an apartment with the non-party association and the defendant company (the substance of the contract is an agreement on the payment of the additional parcelling-out price according to the increase in the premium) on the date of conclusion of each of the contract.

(1) The plaintiffs shall pay the additional sale price (charges) as the deposit account of the defendant company, after deducting 4% option from the general sale price (including value-added tax, specific tax amount in the table of the above value-added tax) of each of the above applications for parcelling-out and apartment, as the deposit account of the defendant company. The 10% of them shall be paid in the unit of the defendant company at the time of the conclusion of the contract for parcelling-out, and the remaining amount shall be paid in three equal installments (as of July 29, 1996, November 29, 29 of the same year, and the date of occupancy designation). If delay is paid, the defendant company shall be paid late 17% interest rate per annum (However, it is limited to the form of the contract form in which the additional sale price payment date was standardized).

(2) In case the Plaintiffs did not pay the above additional sales price to the Defendant Company until 30 days after the date of designation of occupancy, the Defendant Company or the Nonparty Company may cancel the sales contract without a peremptory notice.

D. The plaintiffs paid each additional purchase price to the defendant company, and completed registration of preservation of ownership in the name of each plaintiffs on the registration fee date for the application for parcelling-out apartment in the name of the defendant company.

2. Determination:

A. Whether the plaintiffs are liable to pay value-added tax on each of the above sales prices

Among the reconstruction projects implemented by the housing reconstruction association organized by its members for housing improvement, the members are in the actual status of final consumers from the construction to the sale in lots, and even if the association took the form of selling the housing to the members, it cannot be deemed that they supplied the goods to the members. Therefore, even if the plaintiffs purchased an apartment house of a size exceeding 33 square meters supplied free of charge to the members, there is no legal obligation to pay value-added tax on the sale price.

(b)the occurrence of cancellation rights;

The plaintiffs agreed to pay each value-added tax to the defendant company by entering into the sales contract of this case with the non-party association and the defendant company with the knowledge of the fact that they should bear value-added tax in the case of the purchase of apartment units exceeding 33 square meters supplied free of charge even though they did not have a legal obligation to pay value-added tax on the purchase price of each apartment unit for sale. Since it is reasonable to see that it is an error in the important part of the contract, the plaintiffs acquired the right of revocation accordingly.

(c) The other party to the exercise of the right of revocation (the subject of return of unjust enrichment);

(1) The defendant company's assertion

The plaintiffs paid the additional sales price to the deposit account of the defendant company to facilitate the collection of the claim for the construction price against the non-party union of the defendant company, and the sales contract of this case was concluded between the non-party union and the plaintiffs, so the defendant company received the additional sales price including each value-added tax amount under the above sales contract and appropriated it for the construction price, the defendant company is not liable to return it to the non-party company.

(2) Determination:

However, as seen above, ① the non-party partnership and the non-party company entered into the construction contract of this case and agreed that the sale of reconstruction apartments and incidental facilities, including the shares of the union members, shall be the non-party partnership under the relevant laws and regulations, and the defendant company shall act as the principal agent. Furthermore, the non-party partnership and the non-party union members shall not raise any objection to the sale business of the defendant company. ② The plaintiffs entered into the sales contract of this case with the non-party partnership and the defendant company in order to pay the additional sale price in a size exceeding 3 square meters, and they shall pay the additional sale price directly to the defendant company without going through the non-party partnership and without going through the non-party partnership. ③ The defendant company was in a position to independently cancel the sale contract if the plaintiffs did not pay the above additional sale price within 30 days from the date of designation of occupancy, ④ the defendant company received the additional sale price directly from the plaintiffs and received the additional sale price from the defendant company, and thus it is difficult to accept the above additional sale price in light of the above legal reasoning.

(d) Conclusion

Meanwhile, since the fact that the copy of the complaint of this case, stating that the plaintiffs expressed their intent to pay each of the above value-added taxes to the defendant company on July 14, 1998, was delivered to the defendant company on July 14, 1998, the above part of the contract of this case was lawfully cancelled, the defendant company obtained profits equivalent to the above value-added taxes without any legal ground and suffered damages equivalent to the above value-added taxes from the plaintiffs.

3. Conclusion

Therefore, the defendant company is obligated to pay the above amount of 9,094,636 won, 1,094,636 won, 8,541,727 won, 9,000 won, 200,000,0000,0000,0000,0000,0000,0000,0000,0000,000,000,0000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00,00.

Judges Park Yong-ran (Presiding Judge)