In a case where Party A concluded a contract with Party B, a selling agent, to purchase a unit of multi-family housing (loan) newly built by Company B, with Company B as “sales agent,” and Company B, and paid the down payment and the intermediate payment under the contract to Party B, and then sold the purchase right to Party B, and conducted the procedure for change in the name of the selling authority, but the judgment against Party B was finalized on the ground that Party C was not the party to the above sales contract, upon which Party B filed a lawsuit seeking the implementation of the procedure for transfer registration of ownership under the sales contract against Party C and its members, Party B’s claim cancellation of the resale contract and restitution to Party B, the case holding that Party B did not hold the right to transfer the ownership of the subject matter of the sale, and even if Party B fulfilled the procedure for change in the name of the selling authority, Party A was obligated to acquire ownership based on the purchase right, and thus Party A’s obligation to cancel the resale contract, and thus, Party A’s declaration of intention to perform the contract was legitimate and conclusive.

A entered into a contract with B, a sales agent, to purchase one household of multi-family housing (loan) newly built by C, with the term “execution and construction work,” and the term “B,” and paid the down payment and the intermediate payment under the contract to B, and then resells the sales right to B, and implement the procedure for change in the name of the buyer. However, the decision against B, after filing a lawsuit against C and its members seeking the implementation of the procedure for transfer registration of ownership pursuant to the sales contract, which became final and conclusive on the ground that C and its members are not the parties to the said sales contract, the case where B cancelled the resale contract and sought restitution against C.

The case holding that since the seller A was not holding the right to transfer the ownership of the subject matter of sale and the purpose of the resale contract was not achieved even if the buyer Gap fulfilled the procedure for change in the name of the buyer, the seller of the subject matter of sale is still obligated to allow Eul to acquire the ownership of the subject matter based on the right of sale, and the obligation was finalized after filing a lawsuit against Byung and the loss was finalized, and it became impossible to execute the contract, and this was concluded with Eul without examining whether Eul secured the right to transfer the ownership of the subject matter of sale from Byung in the process of concluding the contract for sale, and the sale price was paid to Eul, other than Byung, even though Eul secured the right to transfer the ownership of the subject matter of sale with a large amount of discount, and the sale price was paid to Eul, and the sale price was paid to Eul, under the resale contract, even though Eul implemented the procedure for change in the name of the buyer, and it was due to negligence that caused Byung to conclude the sale contract after change in the name of the buyer Eul and succeed to the sale price.

Articles 546, 548, and 568 of the Civil Act

Plaintiff (Law Firm Meart, Attorney Full-type, Counsel for the plaintiff-appellant)

Defendant

March 24, 2020

1. The defendant shall pay to the plaintiff 105,00,000 won with 5% interest per annum from July 3, 2019 to July 21, 2020, and 12% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

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

4. Paragraph 1 can be provisionally executed.

Except for the case where a copy of the complaint of this case is to be paid at the rate of 15% per annum from the day after the delivery of the copy of the complaint of this case to the day of complete payment, the same shall apply

1. Basic facts

(a) Execution of new loan construction works and sales agency contracts;

1) The Dobong-gu Seoul Metropolitan Government Comprehensive Construction Co., Ltd. (hereinafter “Gamb Construction”) newly constructs Dogra on the ground (number omitted) (hereinafter “instant Dogra”) and sells the general sales portion outside the cooperative’s sales portion, as well as the executor of the business.

2) A company MP Korea Co., Ltd. (hereinafter “MP”) is a company with the purpose of sales agency business, etc.

3) On November 17, 2014, the tugboat construction delegated the authority on the sale of the instant loan loans to IMP by setting the following scope:

The term “A” and the term “B” under Article 4(1) of the Act refers to the term “B” and the term “B” refers to the term “B” and the term “B” means the purchase agency contract for the following real estate ( omitted). The purpose of this contract under Article 2 (Purpose of Contract) is to determine the rights and obligations between the Parties in entrusting “B” with all authority concerning the sale of real estate and all the business affairs. Article 3 (Scope of Delegation) of the Act delegates all all the affairs related to the said real estate to “B” on January 2, 200, the term “A” refers to “B” and “B”. The term “B” is to grasp the outcome of the execution of the sale contract and to cooperate with “A”. The term “A” is to delegate all the affairs related to the sale of the said real estate to “B” on January 2, 200, and is to increase the effectiveness of the sale contract.

B. Conclusion of sales contract and resale of sales right by the defendant

1) The sales contract was prepared on July 24, 2015 with regard to one of the instant loan units as a buyer, IM as a seller, and as a shop construction. The sales contract was prepared on July 24, 2015 with regard to one household among the instant loan units. The content that the Defendant paid the intermediate payment of KRW 155,000 (50,000,000 for intermediate payment, the remainder of KRW 50,000 for intermediate payment, KRW 55,000 for intermediate payment, and KRW 55,000 for the remainder of KRW 55,00,000 for each of the instant housing units as of the same date (hereinafter “advance sales contract”). However, the instant house completion contract was prepared between the same parties, and the housing unit was paid KRW 238,00,000 for the instant housing unit, KRW 230,000 for the sales price, KRW 75,005,00 for each of the instant housing units.

2) On October 16, 2015, the Defendant entered into a contract with Nonparty 1 and Nonparty 1, who is the Plaintiff’s husband, to sell KRW 100,000 out of KRW 15,00,000 for the instant housing, and KRW 55,00,000 for the sales contract, plus KRW 5,000 for the pre-sale contract to be paid KRW 105,000,000 for the total of KRW 100,000 for the pre-sale contract (the pre-sale contract was executed at KRW 5,000,000 for the remainder 10,000,000 for the remainder 1,000,000 for the housing and KRW 50,000 for the remainder 0,000 for the housing and KRW 50,000 for the remainder 0,50,000 for the housing and KRW 5,000 for the sale contract.

C. Progress of a lawsuit against the buyer’s towing and construction, etc.

1) As one of the buyers of the instant loan, Nonparty 2, who prepared a sales contract in the form of “the installment payment contract”, filed a lawsuit against Nonparty 3, the head of the headquarters of the Seoul Northern District Court Decision 2016Gahap22619, against the Seoul Northern District Court Decision 2016Dahap22619, on the real estate that was sold to the head of the headquarters of the Seoul Northern District Court, claiming for non-party 2 the performance of the procedure for ownership transfer registration based on sale and purchase, preliminary preliminary preliminary preliminary preliminary preliminary preliminary preliminary preliminary preliminary preliminary preliminary preliminary preliminary preliminary preliminary preliminary preliminary preliminary preliminary preliminary preliminary preliminary construction, MJ, and non-party 3. Accordingly, the preliminary construction filed a counterclaim against Nonparty 2 seeking to transfer the real estate for the purpose of sale to Nonparty 2 as Seoul Northern District Court Decision 2016Gahap2628. The progress is as follows.

A) On June 1, 2017, the said court accepted the main claim of the principal lawsuit and dismissed the remainder of the principal claim and the counterclaim on the ground that Article 126 of the Civil Act applies to the expressive representation doctrine that entered into a sales contract of IMP, and its judicial effect has infringed on the preliminary construction.

B) Accordingly, the Seoul High Court appealed as Seoul High Court Decision 2017Na203856, 2033863 decided on August 31, 2018, on the following grounds: (a) the form and content of the “wholly paid contract” was premised on the premise that IM is a seller; and (b) the intention of IMP regarding the “wholly paid contract” was to sell real estate owned by IMP to a buyer after payment in kind from the pre-construction; and (c) contrary to the judgment of the first instance court, the parties to the contract for sale in lots were not the pre-sale construction, but the parties to the contract for sale in lots rejected the main claim on the ground that IMP is not the pre-sale construction, but the content of rejecting the main claim, and the content of accepting the request for a counter-sale of the pre-sale construction.

C) Accordingly, Nonparty 2 appealed to the Supreme Court Decision 2018Da277952, 277969, but on January 31, 2019, the dismissal of the appeal was final and conclusive on January 31, 2019.

2) The Plaintiff filed a lawsuit with other buyers seeking the implementation of the procedure for ownership transfer registration pursuant to the instant sales contract with respect to the instant housing, along with the Seoul Northern District Court 2018Gahap27281, Seoul Northern District Court (Seoul Northern District Court 2018Gahap27281). On May 1, 2019, the said court rendered a judgment against the Plaintiff, etc. on the grounds that the instant sales contract was not a wedding construction, but a party to the instant sales contract, and it is difficult to deem that the instant sales contract was responsible for expressive agency, and that the towing construction and its members are not liable for damages such as user liability against the Plaintiff, etc., and the said judgment became final and conclusive as is.

(d) the progress of related criminal cases;

1) Nonparty 4 and Nonparty 3, who is the representative director of MJP, were indicted for the defendant's case, such as fabrication of private documents, uttering of falsified investigation documents, fraud, etc. by the District Court Decision 2017 Gobu District Court Decision 2017Da2045, 2069, 290, 4570.

2) On January 10, 2018, the above court rendered a judgment convicting Nonparty 4 of all the facts charged and sentenced Nonparty 4 to three years of imprisonment, and sentenced Nonparty 3 to five years of imprisonment. The main part of the facts charged in this case is as follows.

A) A. The head of the headquarters concluded a sales agency contract as seen earlier between B and B. The head of the headquarters obtained the employee seal of B and B used in the process of the sales agency contract from B and C and concluded the sales contract with B and B by using it. In that context, B and B were subject to the claim of B and B during the sales at discount in the title and form of “the completion contract” from members, and B and B were not deemed to have been produced at will without prior consultation, and B and B were not approved at the time of the execution of the future contract, and the employee seal was collected from B and C, and Nonparty 3 was well aware of these circumstances. Nevertheless, Nonparty 3 concluded the sales contract with B and B and 2 by using B and B’s official seal in the name of B around October 2015, and it was legitimate for B and B to conclude the sales contract by using B and B’s official seal in the name of B to B and 3’s employees, etc., and by using B and 15 of B and B’s official seal.

B) Nonparty 4 and Nonparty 3, who did not complete the construction due to the failure to pay the construction cost in the wedding construction, and accordingly did not obtain the construction completion permission, and as a result, the liability for the buyers was at issue, they solicited Nonparty 6 to recruit double buyers with regard to the apartment already sold in order to raise funds for the completion of construction, and subsequently, on January 14, 2016, the victim Nonparty 6, who was found to be in order to purchase the apartment in lots within the sales office at around 238,00,000 won at the original KRW 160,000,000, which was the victim’s right to sell the apartment in lots at the same time. Accordingly, the victim acquired the down payment amount of KRW 70,000 from the victim to the account in the same name (Fraud).

C) Although Nonparty 4 and Nonparty 3 received a claim from the victim to the effect that the sale at a discounted price cannot be recognized as seen earlier, they concluded a sales contract with the victim for KRW 145,00,000 of the sales price by proposing the victim Nonparty 7 at the sales office around February 5, 2016 that “( Address 2 omitted) will sell at a discounted price.” However, the above ( Address 2 omitted) had already been sold in lots and received the down payment and the intermediate payment from the victim to demand the transfer of ownership. Since Nonparty 4 and Nonparty 3 did not have an intention or ability to sell the above ( Address 2 omitted) under the pretext of double sales, even if having received the sales price from the victim, the said (number 40,000, 200, 200, 2006, 400, 200, 2006, 2006, 2006, 400, 200, 2006, 2000.

3) Since then, the appeal filed by Nonparty 4 and Nonparty 3 (Korean District Court Decision 2018No198) and the appeal filed by Nonparty 3 (Supreme Court Decision 2018Do14934) became final and conclusive.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1 through 16 (including branch numbers, if any; hereinafter the same shall apply), Eul evidence Nos. 2, 3, and 4, the purport of the whole pleadings

2. The assertion and judgment

(a) Claim for return following the cancellation of agreement;

The Plaintiff asserted that, after the resale contract of this case and the sales contract of this case, the Plaintiff had agreed to refund KRW 105,00,000 that the Defendant received when the sale of the housing of this case between the Defendant and the Defendant was nonexistent, and that, since the Plaintiff lost the sale of the housing of this case in the lawsuit against the construction, etc. of wedding, the Defendant is obliged to pay KRW 105,00,000 and the delay damages therefrom in accordance with the above agreement.

However, there is no dispute between the parties who expressed their intent as alleged in the Plaintiff, but the evidence submitted by the Plaintiff alone is insufficient to recognize that the agreement has been reached as alleged in the Plaintiff. Rather, according to the evidence No. 9, the Defendant, on December 14, 2015, returned the Plaintiff’s request to the Plaintiff in the name of the Defendant until December 31, 2015, and returned KRW 105,000 to the Plaintiff’s name and returned the same to the Plaintiff at a simultaneous performance. If all legal issues and damages arising from the failure to return were to be returned, the Plaintiff (Nonindicted 1) sent a document to the effect that the Plaintiff would be responsible for all legal issues and damages, and again, it is difficult to acknowledge that there was no agreement between the Plaintiff and the Defendant in light of the content that changed the name of the right that the Defendant concluded to the Plaintiff and the right to purchase and sell was terminated, and if the right was not yet terminated, it is difficult to deem that the agreement between the Plaintiff and the Plaintiff was reached.

(b) Requests for return following the cancellation of a contract;

1) The assertion

The plaintiff asserts that although the defendant has a duty to allow the plaintiff to acquire the ownership transfer registration of the housing of this case, the plaintiff failed to perform his duty due to negligence in the conclusion of the pre-sale contract and the payment of the price, the plaintiff's delivery of the copy of the complaint of this case would cancel the resale contract of this case and seek the return of the proceeds of resale to the defendant.

In regard to this, the Defendant received the right to sell the instant house from Nonparty 8, and confirmed the power to sell the instant house by proxy, certificate of seal impression, business registration certificate, etc. during the process of concluding the sales contract, and entered into a sales contract with IM, which caused a change in the name of the purchaser after resale to the Plaintiff, and the Defendant expressed his intention to cancel the sale as illegal sale but did not comply with the Plaintiff. Thus, the Defendant’s obligation was fully fulfilled, and the Plaintiff did not have any obligation to implement the procedure for the registration of ownership transfer to the Plaintiff.

2) Determination

Inasmuch as the purpose of a sales contract is to have a buyer acquire ownership of an object based on the right to purchase and sell, a seller is obligated to allow a buyer to acquire ownership of an object based on the right to purchase and sell. If the purpose of a sales contract can be achieved by permitting a buyer to change the name of a buyer in the name of a seller, the seller is obligated to perform the sale contract. Furthermore, if the buyer acquires ownership of an object based on the right to purchase and sell, then he/she cannot be held liable to complete the registration of ownership transfer in the future. However, if the buyer acquires ownership of an object by using the right to purchase and sell the object without changing the name of the buyer’s ownership, it cannot be said that there is no way to accomplish the purpose of the sale and purchase by allowing the buyer to acquire ownership of the object by using the right to purchase and sell the object in order to acquire ownership of the object, it can be said that the seller still becomes liable to acquire ownership of the object in the name of the buyer by using the right to purchase and sell the object, barring any special relationship between the buyer and the seller.

In this case, as seen earlier, since IM does not have the right to transfer ownership of the object of sale, the Defendant, who is the seller of the right to sell in lots, does not have the duty to allow the Plaintiff to acquire ownership of the object based on the right to sell in lots. Therefore, the Defendant, as the seller, is not obligated to allow the Plaintiff, who is the buyer, to acquire ownership of the object based on the right to sell in lots, and there is no special circumstance to deem otherwise. However, as seen earlier, the Plaintiff did not possess the right to transfer ownership, but lost the Plaintiff’s claim for ownership transfer registration against IM construction, etc., which included the Plaintiff’s right to purchase in lots, but the Defendant’s obligation was impossible to perform. Furthermore, the Defendant had the Plaintiff lawfully receive ownership of the housing in this case from 00 pre-sale in the process of concluding the contract with IM, without examining whether the Defendant secured ownership of the housing in this case by way of the content of the contract with 00 pre-sale agent, and thus, the Defendant concluded the sale in lots with 30000,0000,000 pre-sale proceeds.

Meanwhile, as alleged by the Defendant, the fact that the Defendant expressed to the Plaintiff the intention to return the price for resale to the Plaintiff by the restoration of the name and the simultaneous performance is recognized as above. However, the Defendant does not terminate the Defendant’s obligation related to the resale of the ownership of this case because the Defendant either returned the price of KRW 105,00,000 or did not provide the performance. Furthermore, even if the performance or the provision of the performance was made, so long as the agreement cannot be deemed to have been concluded by the Plaintiff’s consent, the Defendant’s above obligation is not extinguished, and the Defendant’s assertion is difficult

3) Ultimately, the Defendant is obligated to pay to the Plaintiff damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from July 3, 2019 to July 21, 2020, the day after the delivery of a copy of the complaint of this case sought by the Plaintiff, and 12% per annum as stipulated in the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from the next day to the day of full payment [the statutory interest rate for damages for delay was partially amended by Presidential Decree No. 29768, May 21, 2019 and enforced June 1, 2019] pursuant to the provisions on the statutory interest rate under the main sentence of Article 3(1) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings (the statutory interest rate for damages for delay was 12% per annum as of June 1, 2019).

3. Conclusion

Thus, the plaintiff's claim of this case is justified within the above scope of recognition, and it is so decided as per Disposition with regard to the process of attack and defense by both parties in litigation as well as the sharing of litigation costs.

Judgment's normal rules