2013Na76323 Damage, etc.

1. B

2.C

3.D

4.E

5.F

6.G

7.I

8.J

9.K

10.L

11.M

12.N

13.0

14.P

15. Q.

16.R

17.S

18.T

19.U

20.V

21.W

22.Y

23.Z;

24.A

25.AD

26. AE;

27. AF

28. AG

29. AH

30.AI

31.AJ

32.AK

33.AL

34.AM

35.N

36.AO

37. AP;

38. AR

39.AS

40.AT

41.AU

42.AV

43.AW

44.AX

45. AY;

BC Regional Housing Association

Seoul Central District Court Decision 2012Gahap78554 Decided November 1, 2013

October 2, 2014

November 6, 2014

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

1. Purport of claim

The defendant is jointly and severally with the plaintiff D, E, F, G, N, N, Q, Q, U, V, AD, AE, AF, AG, AG, AJ, AJ, AL, AM, AM, N, AO, and AO, in collaboration with the joint defendant Hyundai MCO Co., Ltd. of the first instance trial (hereinafter referred to as the "NM").

AU, AV, AW, and AX each amount of KRW 50 million to the rest of the plaintiffs, and 100 million each with 20% interest per annum from the day after the day of delivery of a copy of the complaint of this case to the day of full payment.

2. Purport of appeal

The part against the defendant in the judgment of the first instance against the plaintiffs is revoked, and the defendant shall pay to the plaintiff D, E, F, G, N, Q, Q, U, V, AD, AE, AF, AF, AG, Al, AJ, AM, N, AO, AO, AO, AU, AV, AV, AW, and AX each of the KRW 100 million to the remaining plaintiffs and the amount equivalent to 20% per annum from the day after the day of service of a copy of the complaint of this case to the day of full payment.

1. Basic facts

A. Status of the parties

1) The defendant association is a housing association established to offer housing for local residents pursuant to the Housing Construction Promotion Act, etc. The defendant association is authorized to establish an apartment 22 units construction project (hereinafter "the apartment of this case") with the business site of 127,528.80 square meters outside Dongjak-gu Seoul Metropolitan Government as well as 609 units of land. The defendant association obtained the approval of establishment from the head of Dongjak-gu on February 22, 2007, and obtained the approval of the project of this case from the head of Dongjak-gu on November 8, 2007.

2) The instant apartment complex consists of households composed of an exclusive area of 25 square meters (59 square meters), 33 square meters (84 square meters), and 43 square meters (18 square meters). Among them, the Plaintiffs are the buyers who purchased 43 square households or their shares, or persons who succeed to the status of the sales contract from the buyer with the consent of the Defendant Cooperative.

B. Advertisement for sale of the apartment of this case

Since 2010, the Defendant Union advertised for the sale of the apartment of this case through the advertising complex, the guide book for sale in lots, the Internet sale advertisement, etc., and the contents of the advertisement include the contents that guarantee the rights of the pre-existing contractor even if the contract terms are changed in the future, and the contents that guarantee the rights of the pre-existing contractor so that the pre-existing contractor can equally apply the contract terms (hereinafter referred to as the "contract terms guarantee system"), and the contents that include the contents that guarantee the rights of the pre-existing contractor, ② ‘2.60,000 square meters neighboring parks with a 2.60,000 square meters neighboring green parks with a 2.60,000 square meters neighboring green parks, ③ The possibility of the unlimited resale of the right to sell in lots, and the Defendant Union, upon entering into the contract with the Plaintiffs, prepared and issued the contract guarantee certificate

(c) Details on the implementation of flat conversion of members;

1) From around 2009, in order to increase the sales performance of the 43-dimensional apartment units, among the apartment units of this case, from among the members of the defendant association, an opportunity to purchase 43-dimensional apartment units from among the members of the defendant association was provided to the members of the defendant association after the withdrawal from the defendant association, but the method of calculating the conversion amount recognized as the contributory portion as a member and allowing the members to additionally bear only the remainder except the above conversion amount out of the general sales price (hereinafter referred to as the above sale method).

2) On July 20, 2009, after inquiring of the members of the association about their opinions on the enforcement of the flat conversion, the Defendant Union decided on the agenda relating to the "establishment of a plan for the flat conversion of the members" at the special general meeting on July 20, 2009. After formulating a detailed plan for the flat conversion of the members, the Defendant Union decided on October 18, 201 to set the amount of 390 million won for the members who were 25 square meters at the meeting of the board of directors, and 33 square meters for the members who were 33 square meters for the members, respectively.

on November 11, 2011, entrusting the board of directors with a specific execution of the conversion of members to the ordinary general meeting of the board of directors.

In the special meeting on the same day, the resolution was made to impose additional contributions on all the union members.

3) After January 3, 2012, the Defendant Union decided on the board of directors on November 11, 201 to raise the converted amount, including the shares of the association members, which was additionally resolved at an extraordinary general meeting, and the following:

On April 16, 2012, the board of directors decided to delegate all of the affairs related to the conversion of union members to the YD Co., Ltd., which was performing the sales agency business at the time of the meeting.

4) The sales unit price (the conversion price - the share of the association members) that can be seen as having been reduced or exempted by the union members of the year-paid union, the amount of the conversion, and the amount of the general purchase price of apartments sold by the union members, in full view of the data prepared by the company as a basis for the calculation of the amount of conversion and the sales unit to be used by the company as a basis for the calculation of the amount of conversion.

A person shall be appointed.

5) Accordingly, the members of the Defendant Cooperative purchased 43 square-type apartment units in general after withdrawal from the Defendant Cooperative. From November 201 to December 2011, 201, 600 million won and 600 million won on April 201 to December 201.

On May 2012, 2012, the amount between KRW 60 million and KRW 750 million has been recognized as the amount of each conversion, and 43 square-type apartment was sold in the general form, and only the remainder of the general sale price less the above conversion amount has been additionally borne.

6) The total number of 43 square-type households sold in general by the Defendant Cooperative is 239 units, among which three or more floors are 211 units, and the number of households of ordinary-type conversion members is 31 units. At present, 43 square-type general-type sales have been completed.

(d) Restrictions on the resale of altered ownership in lots;

At the time of 2012, the case of the apartment purchase for those who are not capable of purchasing the apartment due to the erosion of the real estate market, etc., and the ‘defabial pre-sale' has been charactered, and the defendant union has strengthened the review of the resale of the right of purchase by demanding the purchaser who wishes to resell the right of purchase from June 2012 to submit data verifying the credit of the purchaser of the right of purchase for the purpose of blocking the above ‘defabry pre-sale' from June 2012.

(e) Current creation of neighborhood parks;

1) At the time of the approval of the instant business plan, the BE Park was created on the 86,497 square meters in the vicinity of the project site. However, according to the content of the Seoul Special Metropolitan City’s public notice, the said business plan was formulated, in order to jointly adjust the location of the said existing park with the Hyundai M&C Association, which carried out a housing construction project in the neighboring area, and to remove unauthorized buildings, etc. in the park, planting trees, and create small parks with the 1,919.4 square meters in the neighboring 1,925 square meters in the neighboring 2E parks, the 55,925 square meters in the 55,925 square meters in the BE Green Park was included in the business site of the Hyundai M&C Association, the remaining 30,572.5 square meters in the area of small

2) Around September 2012, the Defendant Cooperative completed the construction of the said small park, and the said BE Green Park Opening Corporation shows a fair rate of approximately 90.06% as of August 31, 2013.

[Fact that there is no dispute over recognition, Gap evidence Nos. 1 through 4 (if there is a provisional number, each number is issued; hereinafter the same shall apply), Gap evidence Nos. 6, 7, 13, Eul evidence Nos. 5, 7 through 10, Eul evidence Nos. 13 through 16, Eul's evidence Nos. 22 and 23, and the fact-finding with the head of Dongjak-gu in the trial court, the whole purport of the pleading, as a result of the fact-finding with the head of Dongjak-gu in the trial court

2. Determination on the claim for agreed amount under the contract terms guarantee system

A. Summary of the plaintiffs' assertion

Although the content of the sales contract between the plaintiffs and the defendant association does not specify the contents of the sales contract between the plaintiffs and the defendant association, in light of the contents of the sales contract between the plaintiffs and the defendant association, an agreement was made to ensure that the terms of the contract are applied again at a low price if the sales price is lower than the first time of the sale after the buyer's purchase of the apartment in this case. However, the defendant association, however, calculated an excessive conversion amount in violation of the social rules without legitimate procedures for the purpose of getting out of the duty to carry out the sales of the apartment in this case, and sold the 43-type apartment to the members of the ordinary unit of sale. This constitutes a "revision of the terms of the contract", and thus, the defendant association, as it constitutes a "revision of the terms of the contract", shall return the difference between the converted amount that the members of the ordinary unit of the association obtained from the benefits of reduction and exemption pursuant to the guarantee of the terms of the contract, and the plaintiffs

B. Determination

1) Whether the sale of buildings in units following the conversion of the union members into normal terms can be seen as the sale in units and the sale in units as set forth in the Agreement on Guarantee of Terms and Conditions

According to the evidence No. 1 and evidence No. 17, the amount of parcelling-out price applied to the general buyers including the plaintiffs can be acknowledged as the same fact. The following circumstances acknowledged as a whole by the combination, such as Gap's evidence No. 1 and Eul's evidence No. 11 and No. 12, were promoted by six cooperatives, such as the BF district housing association, etc. established around 2002, and it was established on February 22, 2007, and the defendant association was established with the approval of the project plan from the head of Dongjak around November 8, 2012, the amount of parcelling-out price applied to the members of the association including the plaintiffs, and the amount of parcelling-out price applied to the members of the association including the plaintiffs. In light of the above circumstances, the Ministry of Land, Transport and Maritime Affairs established guidelines for the conversion of the apartment house to the members of the association to acquire the land and its risks by the members of the association by taking over the status of the apartment house of this case from the general housing association No. 2014.

In accordance with the Enforcement Decree, it is established for the legislative purpose of supplying housing on a reasonable scale according to the provision of the Enforcement Decree, and it is not an absolute provision prohibiting members from purchasing an apartment house with at least 33 square meters away from their membership status. Therefore, the plaintiffs' assertion in this part is groundless). Unlike the general buyers who are obligated to pay the total amount of the purchase price, it is difficult to view the sale of housing following the conversion of union members as equal to the general sale stipulated in the contract for the guarantee of contract terms and conditions.

(ii) whether there is procedural and substantial illegality in the calculation of the conversion amount;

A) Comprehensively taking account of the purport of the entire arguments as seen earlier, the instant project was implemented from around 2002 and the project plan was implemented around November 8, 2007, but the project was prolonged due to the delay in construction works, etc., and the cost of construction works entered into with IMCo Co., Ltd. around June 2009. As a result, the burden of the association members was increased due to the prolongedization of the project and the increase in project cost, etc., the Defendant Co., Ltd., as one of the measures to benefit its members, attempted to change the membership of the association upon the resolution of the special general meeting on July 20, 2009. The Defendant Co., Ltd.’s board of directors set the conversion amount of KRW 390,000,000 (type 250,000) or KRW 633,000,000,000,0000,0000,0000).

In light of the above circumstances, as to the amount of conversion at the time of the first conversion, Defendant’s assistance

In the meantime, even if there was no direct approval resolution of the Defendant’s general meeting with respect to the increased conversion amount at the time of the second parallel conversion, it is difficult to evaluate it as the increase in the converted amount not based on the intent of the association members even though there was no direct approval resolution of the Defendant’s general meeting with respect to the increased conversion amount at the time of the second parallel conversion (only if the validity of the converted amount is denied for reasons, such as the Plaintiffs’ assertion, there is no room for the Plaintiffs to claim for the return of the converted amount

B) In light of the fact that the conversion amount is calculated by considering the value of the rights previously held by a member of the ordinary conversion association as a member, and it is always an internal issue inside the Defendant association to calculate the conversion amount. In light of the aforementioned circumstances, the establishment process of the Defendant association as seen earlier, the progress of the instant business, and the process of the implementation of the usual conversion, etc., the members of the Defendant association maintained their status and faithfully performed their obligations upon the risk of the failure of the instant business. Thus, it is difficult to view that the Defendant association’s conversion amount is unlawful in calculating the conversion amount of the Defendant association, on the ground that the members applying for the conversion of usual conversion recognized the value of the right to purchase previously held by them as more than the contribution actually assumed by them, and there is no evidence to acknowledge it otherwise.

C) Whether a union member’s usual conversion has been conducted for the purpose of resolving unsold shares in lots and should be seen as having been sold in general

The plaintiffs asserts that the conversion of ordinary sale is the same as the alteration of the terms and conditions of the general sale, since the conversion of ordinary sale is aimed at resolving the general sale by discounting sale to members and avoiding the contract guarantee agreement made to the general buyers.

According to the statements in the evidence Nos. 9 and 10, the defendant union and HyundaiM Co., Ltd on September 11, 2009

The fact that the food company, on July 4, 2009, entered into an agreement with the members to sell at a discount of up to 20% if the general sale price falls short of 80% of the target sale price within 9 months from the date of general sale. However, the execution of the usual conversion to the members was made on or after October 201, 201, when the target sale rate was reached, after December 201, when the target sale rate was reached, and even when the members' usual conversion to the members, the apartment unit that was previously sold to the members was unsold, and the apartment unit that was previously sold to the members would be at a same level. As seen above, it is difficult to view that the defendant union carried out the usual conversion to the same purpose as the plaintiffs' above, taking into account the fact that the members' common sale price was at the market value of the apartment unit previously sold to the members, and the fact that the conversion was decided taking into account various circumstances, such as the progress of the project and the property status of the association, etc.

3) Sub-determination

Ultimately, it cannot be deemed that the conversion of the members of the union, which the Defendant Union implemented, to the Plaintiffs, constitutes the change of the contractual terms stipulated in the agreed contract terms guarantee system. Therefore, the Plaintiffs’ claim for the agreed amount based on such premise is without merit without any need to further examine it.

3. Determination as to a claim for damages caused by a tort

A. Summary of the plaintiffs' assertion

In advertising the apartment of this case, the defendant association established nearby 2E parks, and advertised as if the unlimited resale of the right to sell the apartment of this case was permitted, but in fact, the above park was not established, and the defendant association committed an act of restricting the resale of the right to sell the apartment of this case. The defendant association's advertisement of selling the apartment of this case had false and exaggerated contents to the extent of being criticized in light of the duty of good faith and good faith, and therefore, the defendant association is obligated to compensate the plaintiffs for the damages suffered by the plaintiffs due to the above advertising.

B. Relevant legal principles

The mere exaggeration or falsity in the advertisement of goods may be caused by the fact that it is lack of deception as long as possible in light of the future practices and good faith principles, but if the specific facts about important matters in the transaction are falsely notified in a manner that is to be criticized in light of the good faith and good faith, it constitutes deception (see Supreme Court Decision 2009Da1313, Apr. 23, 2009).

C. Determination

1) In light of the above legal principles, although the phrase “260,000 square meters neighboring a 260,000 square meters,” and “a pleasant life with a 2.60,000 square meters neighboring a park in a park site” was included in the sale advertisement conducted by the Defendant Cooperative, the fact that the PEN Park Improvement Corporation was not completed according to the instant project plan due to the acquisition of ownership in the park site is as seen earlier. However, the fact that there was a BE neighboring park designated as an urban park in the vicinity of the instant apartment site, and the fact that the improvement of the park in accordance with the said project plan was considerably underway, and the progress of the improvement of the park was showing a progress rate of more than 90% as of August 31, 2013, it is recognized as above. Accordingly, it is difficult to view the content of the sale advertisement in the BE neighboring park as falling under the false and exaggerated contents to the extent that it

2) In addition, among the contents of the advertising for the sale of apartment units in the defendant's association, it is clear that there is no restriction on the resale of the apartment units in this case under the related laws and regulations, and it does not mean that the sale of apartment units in this case is permitted so-called "sub-sale" which succeeds to the status of the sales contract to a person who is not capable of performing the obligations under the sales contract in order to avoid the obligation under the sales contract. Accordingly, the defendant's association is not allowed to sell the apartment units in this case

In granting the resale of the right to sell in lots pursuant to Article 1, it is necessary to permit the examination of whether the successor to the sale in lots has the ability to fulfill the obligations under the sale in lots as a matter of course, and there is no evidence to prove that the defendant union imposed sanctions on the normal act of selling in lots. Therefore, it is difficult to view the content of the advertisement as false or exaggerated advertisements

3) Ultimately, it is difficult to see that there is a false or exaggerated content in the sale advertisement conducted by the Defendant Union in light of the duty of good faith, and there is no other evidence to acknowledge it, and therefore, this part of the Plaintiff’s assertion is without merit.

4. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed in its entirety due to the lack of reason, and the judgment of the court of first instance is just in its conclusion, and the plaintiffs' appeal is dismissed in its entirety due to the lack of reason. It is so decided as per Disposition.

Judges Lee Chang-hoon

Judges Kim Jin-soo

Judges Kim Young-chul