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(영문) 대전고등법원 2016.07.08 2014나14779
분양대금반환
Text

1. The plaintiff's appeal and the conjunctive claim added in the trial are all dismissed.

2. After filing an appeal.

Reasons

1. The reasoning of the judgment of the court of first instance for the acceptance of the judgment is as follows. The plaintiff's assertion and conjunctive claim concerning the main claim added in the court of first instance are as stated in the reasoning of the judgment of the court of first instance except for further determination as to the plaintiff's claim and conjunctive claim added in the court of first instance as stated in the main sentence of Article 420 of the Civil Procedure Act. Thus, this is

Part 3 of the judgment of the first instance court shall add the following details to the 10th sentence:

③ The Intervenor joining the Defendant may request the Defendant to approve the transfer of the right to claim ownership transfer registration for the preservation of loan claims after obtaining the consent to land use after full payment of the sale price, such as land, etc.

(4) Where a plaintiff intends to obtain a right to claim the transfer registration of ownership pursuant to paragraph (3) of this Article, he/she shall obtain approval for transfer in attached Form.

⑤ When the Plaintiff exercises the right to claim registration against the Defendant in order to secure the claim, the Plaintiff shall transfer the registration in sequence via the Intervenor joining the Defendant.

2. Additional determination

A. The plaintiff 1 asserts that the sale price should be paid in full in order to constitute "approval to use land, etc." as stipulated in Article 5 (2) of the Convention, and that as long as the defendant's intervenor did not fully pay the sale price, the defendant's delivery of the written consent to the use of land does not constitute "approval to use land, etc." as stipulated in the above provision.

However, it is difficult to view that the “approval to use land, etc.” stipulated in the instant agreement is necessarily premised on the full payment of the sale price. Moreover, the facts that the Defendant’s Intervenor paid the full amount of KRW 4,910,68,000 for the instant sales contract until March 15, 2011 do not conflict between the parties. As a result of the settlement of the area, the size of the Defendant’s Intervenor’s purchase increases and the area of the Defendant’s purchase increases, KRW 41,126,400 for the increased area.

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