2012 Gohap30342 Registration for cancellation of ownership

Changwon-si

Representative Market Completion

Law Firm Cheongdon, Attorney Gyeong-dilution

0. Heavy Industries Ltd.

Changwon-si Changwon-si

Representative Director Lee 00

Law Firm LLC, Attorneys Lee Do-young et al., Counsel for the plaintiff-appellant

July 26, 2012

September 6, 2012

1. The plaintiff's claim is dismissed.

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

The defendant filing a claim shall implement the procedure for the cancellation registration of the shares of the plaintiff 48,072,217,00 of each registration of ownership transfer completed by the Changwon District Court No. 18396 on April 5, 2010 with respect to each real estate listed in the separate sheet in the separate sheet to the plaintiff.

1. Basic facts

A. On July 18, 1990, the Do Governor (hereinafter referred to as the "Do Governor") approved and announced the reclamation of public waters (hereinafter referred to as the "Do Governor") changed the name in order of Changwon-gun and Msan-si, which was then promulgated on March 12, 2010, pursuant to Article 2(1) of the Act on Special Cases concerning the Establishment and Support of Changwon-si, which was promulgated on March 12, 2010.

Pursuant to Article 29 of the former Public Waters Reclamation Act (amended by Act No. 10272, Apr. 15, 2010; repealed by Act No. 10272, Apr. 15, 2010; Act No. 90-5, ○○○○-ri ○○○○○-ri in the Sinsan-gun in the landfill area **-**-* 231,00, 231, 231, 200, and 231,00, the purpose of reclamation of public waters (hereinafter referred to as “instant public waters”) which was enforced at the time of the application for approval of reclamation of public waters by the Gu Msan-si was abolished as of July 1, 2010, and was officially announced on the same day.

(b) Conclusion of an agreement on implementation of public waters reclamation projects;

(1) 원고는 1991. 5. 31. ○○토건 주식회사, ○○건설 주식회사를 구성원으로 하는 공동수급체와의 사이에 이 사건 공유수면매립 사업의 시공 등에 관하여 수정지구 공유수면 매립사업협약을 체결하였는데, 그 후 위 공동수급체의 구성원 중 ○○토건 주식회사에서 상호를 변경한 ▲▲건설 주식회사(이하 '▲▲ 건설'이라 한다)가 단독으로 이 사건 공유수면매립사업의 시공을 맡기로 하여, 원고는 1994. 8. 27. ▲▲건설과의 사이에 이 사건 공유수면매립사업의 시공 등에 관하여 수정지구 공유수면매립 사업협약(갑 제2호증, 다만 협약서에는 당사자가 '창원군'이 아니라 '창원군수'로 되어 있다)을 체결하였다.

(2) 피고는 2006. 3. 30. ▲▲건설에서 상호를 변경한 ▲▲산업개발 주식회사와의 사이에 이 사건 공유수면매립과 관련한 시공권을 이전받기로 하는 내용의 사업양도 변경계약(을 제1호증)을 체결하고, 2007. 6. 7. 원고와의 사이에 00면 00지구 공유수면매립사업 시행 협약(갑 제3호증, 이하 '이 사건 시행 협약'이라 한다. 다만 협약서에는 당사자가 '마산시'가 아니라 '마산시장'으로 되어 있다)을 체결하였는데, 그 주요내용은 다음과 같다.

Article 1 (Purpose) The purpose of this Convention is to enter into an agreement between the Plaintiff and the Defendant, who is the implementing authority, to efficiently carry out the project, when carrying out the project for reclaiming public waters in the ○○○○○○ Area as a private capital inducement project.

Article 2 (Base and Name of Project) This project shall be referred to as "the Public Waters Reclamation Project of 00 ○○-Myeon" for the purpose of creating housing sites under the Public Waters Reclamation Act.

Article 6 (Bearing of Project Costs)

1) The total project cost (construction cost, compensation cost, service cost, interest, and other) required for the project shall be borne by the Defendant in full. 2) The compensation for the project shall be borne in full in cash, and the Defendant shall pay to the bank designated at the time the Plaintiff requires in order to pay the advance

Article 7 (Reimbursement of Project Costs)

1) The total project cost (construction cost, compensation cost, service cost, interest, and other) invested in the project is settled by transferring the ownership of the site excluding the public land among the land created after the completion of the reclamation project after the completion of the reclamation project to the defendant after the completion of the reclamation project. The plaintiff shall deliver all necessary documents to the defendant for the transfer of ownership

2) The Plaintiff’s acquisition of ownership is governed by Article 26 of the Public Waters Reclamation Act and Article 20 of the Enforcement Decree of the same Act.

(1) When the construction of the reclamation project of this case was completed, the Plaintiff applied for a completion inspection on the reclamation project of this case to the Do Governor on September 21, 2009, and the Do Governor approved the completion completion of the reclamation project of this case on November 13, 2009, and accordingly, the Plaintiff completed each registration of the Plaintiff’s preservation of ownership as to the aggregate of 210,044mi (hereinafter “the reclaimed land of this case”) on the 20th of the same month of the land size in the attached Table 18 as the reclamation project of this case.

(2) On March 26, 2010, the Defendant entered into an agreement on the completion settlement of the ○ District Reclamation Project (Evidence No. 4, hereinafter referred to as the “instant agreement”) with the Plaintiff, and entered into a real estate sales contract (Evidence No. 5, hereinafter referred to as the “instant sales contract”) with respect to the instant reclaimed land on April 5, 201. On the same day, the Defendant completed each registration of ownership transfer as the Changwon District Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch. The main contents of the instant agreement and the sales contract are as follows.

The Convention on the Completion and Settlement of Projects for Reclamation of Public Waters in Districts

The purpose of Article 1 (Purpose) is to enter into an agreement on matters necessary for the efficient settlement of accounts between the Plaintiff and the Defendant, the project implementer, as the public waters reclamation project of the ○○○○ District is completed.

Section 2 (Settlement of Accounts of the Project) The settlement of the Project shall be as follows:

(1) The total project cost shall be 48,446,60,000 won, which shall be 48,446,60,000 won, and the appraised value of reclaimed land (210,044 square meters) shall be 48,07,217,00 won.

(2) The defendant shall bear the costs of 376,383,00 won which are deficient in operating expenses under paragraph (1).

Article 4 (Transfer of Reclaimed Land's Name)

(1) The plaintiff shall transfer reclaimed land under the name of the defendant after the settlement of accounts for business pursuant to Article 2 is completed.

(2) The preservation registration of ownership of reclaimed land shall comply with Article 26 of the Public Waters Reclamation Act and Article 21 of the Enforcement Decree of the same Act.

Article 7 (Transitional Measures) The Convention is replaced by a modified agreement pursuant to Article 27 of the Convention on the Implementation of Public Waters Reclamation Projects in ○○ District which was concluded on June 7, 2007. The plaintiff shall sell the attached real estate owned by him to the defendant and purchase it by the defendant. The sale price and payment method of Article 2 (Sale Price, etc.) shall be determined as follows:

(1) The total project cost shall be 48,446,60,000 won as presented in the application for completion and the appraised value of reclaimed land (210,04m) shall be 48,070,217,00 won as sales price.

(2) The defendant shall bear the costs of 376,383,00 won which are deficient in operating expenses under paragraph (1).

(3) In registering the transfer of ownership for the purpose of cash compensation for public land, such as a site for a Myeon office building under Article 25, which was entered into between the Plaintiff and the Defendant on June 7, 2007, the Defendant shall deposit 2.4 billion won into the financial account designated by the Plaintiff as the ○ Village Development Fund in a lump sum.

Article 3 (Size, etc. of Goods Subject to Sale) The area of the goods subject to sale shall be 18 parcels on the basis of the actual survey and the public book, and 210,044 meters, and the details thereof shall be the same as the indication of separate real estate.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 6, Eul evidence 1 and 2 (including each number), the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

(1) Recognizing that KRW 48,46,60,00, which was presented in the written application for completion when concluding the instant settlement agreement and the instant sales contract with the Defendant, was a reasonable total project cost calculated in accordance with the Public Waters Reclamation Act and the Public Waters Reclamation Act, the total project cost is determined as KRW 48,070,217,00 as the sales price, and expressing the intent to transfer the ownership of the entire reclaimed land of this case to the Defendant constitutes a motive error.

(2) According to the audit results on the instant public waters reclamation project by the Board of Audit and Inspection, the total project cost shall be settled in accordance with Article 20 of the former Enforcement Decree of the Public Waters Reclamation Act (amended by Presidential Decree No. 16891 of July 1, 200) pursuant to Article 3 of the Addenda to the former Enforcement Decree of the Public Waters Reclamation Act (amended by Presidential Decree No. 16515 of August 6, 1999) (amended by Presidential Decree No. 16515 of the former Enforcement Decree of the Public Waters Reclamation Act). Accordingly, if the construction interest of the total project cost is properly determined, the total project cost calculated is KRW 39,303,220,69.

(3) Accordingly, the Plaintiff’s partial cancellation of the instant sales contract corresponding to KRW 8,768,96,301 (=48,070,217,00 won - 39,303,220,699), which is the difference between the total project cost and the sales price reasonably calculated (i.e., the amount of KRW 48,070,217,000). As such, the Defendant is obligated to implement the registration procedure for cancellation as to the Plaintiff’s partial cancellation of the instant sales contract, which is equivalent to the above difference, for the sake of restitution to the Plaintiff.

B. Defendant’s assertion

(1) According to the literal interpretation of Article 7 of the instant Convention, regardless of the amount of the total project cost actually invested by the Defendant, the Plaintiff expressed his intent to transfer to the Defendant all remainder of the reclaimed land acquired by the Plaintiff after completion of the reclamation project of the instant reclaimed land in return for the total project cost, excluding the public land among the reclaimed land acquired by the Plaintiff. Based on such intent, the Plaintiff agreed to sell the entire reclaimed land of the instant case to the Defendant. As such, it cannot be said that there was an error

(2) Even if the Plaintiff and the Defendant interpreted Article 7 of the instant Convention as an agreement to settle the total construction cost of the instant public waters reclamation project pursuant to Article 26 of the Public Waters Reclamation Act and Article 20 of the Enforcement Decree of the same Act, this is merely a settlement in accordance with the statutes at the time of the conclusion of the instant implementation agreement, and it cannot be deemed as an agreement to apply the provisions of Article 3 of the Addenda of the former Enforcement Decree of the same Act at the time of the conclusion of the instant implementation agreement, and therefore, the revocation claim on the ground of the Plaintiff’s mistake, premised on the fact that the foregoing Addenda provision applies

(3) Furthermore, even if the Plaintiff concluded the instant agreement and the sales contract on the premise that the total construction cost was settled in accordance with Article 3 of the Addenda to the Enforcement Decree of the former Act, it cannot be deemed that such motive of the Plaintiff was indicated to the Defendant or included in the content of a legal act, and thus, the Plaintiff cannot cancel the instant sales

3. The judgment of this Court

A. Legal nature of the enforcement agreement of the instant case

(1) At the time of the conclusion of the instant implementation agreement, reclamation projects under the former Public Waters Reclamation Act (amended by Act No. 8820 of Dec. 27, 2007; hereinafter the same) are considerably divided into ① reclamation projects implemented by private enterprises, etc. other than the State and local governments, and ② reclamation projects implemented by public institutions such as the State (Article 38), and ② reclamation projects implemented by public institutions such as the State (Article 38). In the latter case, a public institution such as the State, etc. which implemented reclamation works acquires the ownership of the reclaimed land on the date of completion of construction inspection under Article 38(3) of the Act and, in the latter case, the ownership of the reclaimed land is reverted to the State, local governments, etc. under Article 26 of the Act (Article 26(1)1, 2, and 4 of the Act) and a person who obtained a project implementation license acquires the ownership of the reclaimed land equivalent to the total construction cost (Article 26(1)3 of the Act and Article 20(4) of the Enforcement Decree).

(2) As to the instant case, since the Plaintiff, a local government, obtained a project implementation license from the Do governor on July 18, 1990, and the instant reclamation of public waters constitutes a reclamation executed by a state or other public institution as stipulated in Article 38 of the former Public Waters Reclamation Act, the Plaintiff acquired the ownership of the instant reclaimed land on November 13, 2009, which received the completion authorization from the Do governor, and it is reasonable to deem that the Defendant succeeded to the ownership of the instant reclaimed land from the Plaintiff according to the instant sales contract concluded between the Plaintiff and the Plaintiff who acquired the ownership of the instant reclaimed land as above.

(3) Therefore, the instant implementation agreement is a contract concluded between the Plaintiff and the Defendant, a contractor, to implement the reclamation project, and Article 7 provides for the transfer of ownership of reclaimed land for the repayment of the Defendant’s total project cost, thereby constituting the basis for the instant settlement agreement and the instant sales contract. The Defendant shall settle the total project cost according to the terms and conditions agreed between the parties and transfer the ownership of reclaimed land from the Plaintiff.

B. Interpretation of Article 7 of the enforcement Convention of the instant case

(1) If a party to a contract prepares in writing a disposal document, if the objective meaning of the language is apparent, barring any special circumstance, the existence and content of the expression of intent shall be recognized in the context of the language, and if the objective meaning of the language is not clearly expressed, it shall be reasonably interpreted in accordance with logical and empirical rules and social common sense and transaction norms so that it can be in line with the ideology of social justice and equity by comprehensively examining the contents of the language and text, the motive and background leading up to the formation of the contract, the purpose and genuine intent to be achieved by the party to the contract, and transaction practices, etc. (see Supreme Court Decision 2008Da44368, Jun. 24, 201).

(2) As seen in the facts, Article 7 (1) of the Implementation Convention of this case provides that "the total project cost of the defendant shall be settled by transferring the ownership of the site except for the public land among the land created after completion of the reclamation project," and Article 7 (2) provides that "the acquisition of the plaintiff's ownership shall be governed by Article 26 of the Public Waters Reclamation Act and Article 20 of the Enforcement Decree of the same Act". Paragraph (1) provides that "the transfer of the plaintiff's ownership of the reclaimed land of this case against the defendant" is related to the acquisition of the plaintiff's ownership, and Paragraph (2) provides that the above two provisions are separate provisions concerning the acquisition of the plaintiff's ownership. Therefore, regardless of the amount of the total project cost actually disbursed pursuant to Paragraph (1) of this case, it may be deemed that the plaintiff transferred the

However, considering the above evidence and the following circumstances, which are acknowledged by comprehensively considering the overall purport of pleadings in each statement of evidence Nos. 8, 9, 11 through 14 (including various numbers), i.e., (i) the Plaintiff acquired the ownership of the reclaimed land in this case under Article 38 of the Public Waters Reclamation Act, and thus, (ii) the Plaintiff’s ownership is terminated by transferring the Plaintiff’s ownership to the Defendant, despite Article 26 subparag. 3 of the implementation Convention, and (iii) the Plaintiff agreed to acquire the Plaintiff’s ownership pursuant to Article 26 of the Public Waters Reclamation Act and Article 20 of the Enforcement Decree of the Public Waters Reclamation Act. (ii) The Plaintiff, a local government, established a sales contract for the reclamation of public waters in this case with the same large scale as the reclamation of public waters in this case, and agreed to transfer the ownership of the reclaimed land in this case to the Defendant, regardless of the total project cost actually paid in lieu of payment of the total project cost, (iii) the Plaintiff submitted a report on the cost accounting of the reclaimed land to the Plaintiff and the Plaintiff.

(3) Furthermore, in settling the total project cost of the Defendant under Article 7 of the Enforcement Decree of the instant Convention, whether the Plaintiff and the Defendant calculated the interest rate under Article 20 of the former Enforcement Decree of the Public Waters Reclamation Act (amended by Presidential Decree No. 16515, Aug. 6, 199) and calculated the total project cost pursuant to Article 3 of the former Enforcement Decree of the Public Waters Reclamation Act.

Article 26 (1) 3 of the former Public Waters Reclamation Act (amended by Presidential Decree No. 26 (1) of the former Public Waters Reclamation Act), where the Plaintiff, a local government, obtained a project implementation license from the Do Governor, and the Plaintiff acquired the ownership of the reclaimed land of this case for the original purpose, is not directly acquired by the Defendant pursuant to Article 26 (1) 3 of the former Public Waters Reclamation Act. Thus, Article 20 of the former Enforcement Decree of the Public Waters Reclamation Act (amended by Presidential Decree No. 26 (1) 3 of the former Public Waters Reclamation Act) does not apply to the calculation

In addition, taking into account the following circumstances, i.e., ① Article 3 of the Addenda to the Enforcement Decree of the former Enforcement Decree is not explicitly stated in calculating the Defendant’s total project cost in the instant Convention concluded between the Plaintiff and the Defendant; ② Article 7(2) of the Enforcement Decree of the instant Convention, barring any special circumstance, deeming the “Public Waters Reclamation Act and the Enforcement Decree of the same Act” as referring to the former Public Waters Reclamation Act, which was in force at the time of the execution of the instant agreement, would be reasonable in light of the parties’ general intent; ③ it is difficult to deem that the Plaintiff and the Defendant, the parties to the instant agreement, agreed on the settlement of the total construction cost at the time of the enforcement of the instant agreement, and agreed on the settlement of interest pursuant to the Addenda to the Enforcement Decree, which was in force at least eight years prior to the conclusion of the instant agreement; ④ it is difficult to deem that the Plaintiff and the Defendant have known the existence of Article 3 of the Addenda to the former Enforcement Decree only after being notified of the audit results from the Board of Audit and Inspection.

(4) Therefore, the Plaintiff and the Defendant agreed to transfer the ownership of the instant reclaimed land in order to settle the total project cost invested by the Defendant in the instant reclamation project, but to calculate the total project cost in order to determine the scope of transferred ownership corresponding to the total project cost, pursuant to Article 26 of the former Public Waters Reclamation Act and Article 20 of the Enforcement Decree of the same Act at the time of the conclusion of the instant implementation agreement. Determination on the assertion of cancellation due to mistake is made.

(1) On the other hand, when concluding the instant implementation agreement with the Defendant, the Plaintiff transferred the ownership of the reclaimed land equivalent to the total project cost calculated under the Public Waters Reclamation Act at the time of the conclusion of the agreement to the Defendant, and agreed to settle the total project cost invested in the instant reclaimed project (Article 7 of the implementation agreement of this case). The Plaintiff and the Defendant calculated the total project cost after the completion of the instant reclaimed project pursuant to the implementation agreement, and determined the total project cost as KRW 48,446,60,000 through the instant settlement agreement as KRW 48,070,217,00, the appraisal amount of the reclaimed land was KRW 48,070,217,00, and the Plaintiff concluded the instant sales contract with the Defendant to sell the reclaimed land with the purchase price as the sales price pursuant to the instant settlement agreement as seen earlier.

Comprehensively taking account of all the circumstances recognized in the above Paragraph (b) above, the Plaintiff and the Defendant had an agreement on the important part of the contract, such as the subject matter of sale and the purchase price, at the time of the conclusion of the instant sales contract, and the method and procedure for calculating the total project cost related to the instant public waters reclamation project, which served as the basis for the calculation of the purchase price, in

The recognition of the total project cost was identical, and the content of Article 7 of the instant Convention on the Settlement of total project cost was consistent with the perception of the parties. Therefore, it is difficult to deem that there was a motive error at the time when the Plaintiff entered into the instant settlement agreement and the sales contract with the Defendant.

(2) Even if the Plaintiff entered into the instant agreement and the sales contract on the premise that the total project cost would have been settled pursuant to Article 3 of the Addenda to the former Enforcement Decree of the Act, it is sufficient that the motive mistake in order to cancel a juristic act on the ground that it constitutes an error in the important part of the contents of the juristic act, and it is recognized that the motive mistake is the content of the pertinent declaration of intent and it is the content of the juristic act in the interpretation of the declaration of intent, and there is no need to conclude any agreement between the parties separately to regard the motive as the content of the juristic act. However, the error in the contents of the juristic act should be related to the important part so long as it would have been deemed that the general public would not have made such declaration of intent if it had entered into the public’s position (see Supreme Court Decision 97Da44737, Feb. 10, 1998). The evidence alone submitted by the Plaintiff to settle the total construction cost pursuant to Article 3 of the Addenda to the former Enforcement Decree is insufficient to acknowledge that the motive for the conclusion of the instant sales contract was

(3) Therefore, the Plaintiff’s assertion that part of the instant sales contract is revoked on the ground that there was an error of motive in relation to the calculation of sales price at the time of concluding the instant settlement agreement and the sales contract with the Defendant is without merit.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges of the presiding judge;

Judges Sedroe

Judges Dong-ju