2017dada 116145 Undue gains

A

Changwon-dong Eup Housing Association

Pleadings without Oral Proceedings

December 20, 2017

1. The Defendant shall pay to the Plaintiff KRW 52.6 million with 5% interest per annum from December 9, 2016 to November 1, 2017, and 15% interest per annum from the next day to the day of full payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Grounds for claim;

Attached Form 3 is as shown in the "Cause of Claim".

2. Grounds;

Judgment without Oral Pleading (Articles 208(3)1 and 257 of the Civil Procedure Act)

Judges Yang Gyeong-soo

Grounds for Claim

1. Status of parties;

On November 2016, the Plaintiff paid total of KRW 52,600,000 to the Defendant Union by relianceing on the explanation of a person in charge of the Defendant Union that the Plaintiff could sell an apartment as an association member by failing to meet the requirements of a union member under the relevant laws and regulations, but later resolving this problem, and remitting it to the account of the non-party Asian Trust Corporation designated by the Defendant Union.

2. The reasons why the plaintiff had made the payment of money to the defendant

A. On November 2016, the Plaintiff became aware of the Defendant’s new apartment construction project, visited the business model house located in Sungwon-gu, Sungwon-si and then asked the person in charge of the Defendant’s association about the sales contract procedure.

B. A person in charge of the defendant association, who wishes to sell apartment units of the defendant association, explained the qualification requirements to become a member of the regional housing association. Of the requirements for the association members under the Enforcement Decree of the Housing Act, the requirement that the plaintiff should be a member of the household from the date of application for authorization for establishment of the association to the date of the occupancy of the association housing of the association. However, even though the plaintiff becomes a member of the household of the B's household as of October 28, 2015 as of the date of authorization for establishment of the defendant association, he/she cannot meet the above requirement because he/she becomes the head of the household on July 11, 2016, the defendant association can resolve this problem and become a member of the association.

C. Accordingly, the Plaintiff tried to trust the person in charge of the Plaintiff’s partnership and prepare a partnership subscription contract. Although the Defendant Union intended to enter into a contract with the Plaintiff by transferring or taking over the status of non-applicant C other than the application of the existing partner, the Plaintiff was unable to use a proper contract with the wind that does not meet the requirements of the union member, and the Plaintiff’s personal information was written and sealed in the transferee column of the contract (in page 4 of the contract) and the confirmation column of the transferor and the Defendant Union was left blank (see subparagraph 1 of the above contract).

D. Meanwhile, the Plaintiff wired total of KRW 52,600,000 to two accounts of the Asian Trust Co., Ltd. in charge of fund management as ordered by the Defendant Union (see, e.g., the account of deposit of literary money in the recruitment guide of the members of the Plaintiff No. 2, and the account of deposit and withdrawal of evidence No. 3).

On November 1, 2016, 207-014-790-00 of the remaining amounts of around 8.1,000,000 for an account for temporary payment, and on November 12, 2016, 4,000,000 for an Asian Trust Association member’s contribution account on December 4, 2016; 9.36,600,000 on December 36, 2003; 004; 12.5,50,00 on December 5, 16, 207-014795-08 Asian Trust Service Expense account on December 5, 2016;

3. Existence of a claim for return of unjust enrichment

A. As above, the plaintiff can become a member of the defendant's association and purchase apartment units.

Recognizing and paying KRW 52,600,000.

However, the plaintiff's failure to meet the requirements for membership of the regional housing association under the Enforcement Decree of the Housing Act, and thus, the agreement between the plaintiff and the defendant association was not concluded, and even if the family was concluded, it constitutes an original impossibility and null and void.

B. Relevant statutes

Enforcement Decree of the Housing Act - Any provision currently in force at the time of November 2016.

Article 21 (Qualification for Membership)

(1) A person eligible to become a member of a housing association under Article 11 of the Act shall be any of the following persons: Provided, That a person who succeeds to the status after the death of the member may become a member, notwithstanding the following requirements:

1. Members of a regional housing association: Persons meeting all of the following requirements:

(a) It shall fall under any of the following, as to whether a house is owned (including where the relevant housing construction site is in the position prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport in consideration of the type of house, method of selecting occupants, etc.; hereafter the same shall apply in this subparagraph) from the date of application for authorization to the date of application for authorization to establish an association (where the relevant housing construction site is located in an overheated speculation district under

1. All members of a household, including the head of a household, (including the head of a household, the spouse of the head of a household not registered in the resident registration card for the same household, and persons who form the same household with the same spouse; hereinafter the same shall apply) shall be the head of a household with no house owned in accordance with the standards

2. It shall be the head of a household who owns one bonds with an exclusive residential area of not more than 85 square meters, after determining only one of the household members, including the head of a household, in accordance with the standards prescribed by Ordinance

(b) A person who has resided continuously for six months in an area classified under subparagraph 11 (a) of Article 2 of the Act as of the date of application for authorization to establish an association;

Enforcement Decree of the Housing Act [Enforcement Decree No. 26369, June 30, 2015]

Article 38 (Qualifications of Members) - Articles at the time of October 28, 2015, the date of authorization to establish an association

(1) A person eligible for membership in a housing association under Article 32 of the Act shall be any of the following persons:

1. In cases of members of a regional housing association, persons meeting the following requirements:

(a) The housing association shall not be owned (including where the relevant housing construction site is located in an overheated speculative district under Article 41 of the Act, referring to the date one year prior to the date of application for authorization to establish the housing association) from the date of application for authorization to the date of occupancy of the relevant housing association, or the date of application for the occupancy of the relevant housing association (including where the relevant housing construction site is located in the position determined by Ordinance of the Ministry of Land, Infrastructure and Transport in consideration of the type of housing, methods of selection of occupants, etc.; hereafter the same shall apply in this subparagraph) or the head of a household who owns one house with an exclusive residential area of not more than 85 square meters (including the head of a household, including the head of a household (including the spouse of a household who is not registered in the same resident registration card as the head of a household

(b) A person who has resided in an area under subparagraph 11 (a) of Article 2 of the Act for at least six months as of the date of applying for authorization to establish

C. The Enforcement Decree of the Housing Act shall be the head of the household from the date of application for authorization of the housing association to the date of possible occupancy of the relevant group of houses in the capacity of the members of the regional housing association.

On the contrary, the plaintiff is born as a child of 1982 to the plaintiff and continues to be a member of the household.

7. It is clear that he/she does not meet the requirements for membership under the Enforcement Decree of the Housing Act because he/she was not the householder at the time of the application for authorization for the housing association on October 28, 2015 and prior thereto, and only he/she acquired the eligibility as the householder on November 1, 2015 (see the Plaintiff’s resident registration certified copy and abstract No. 4).

As to the date of authorization for the establishment of a housing association, the date of authorization for establishment is indicated as October 28, 2015 in the housing policy and the current status of the regional housing association (the date of September 2017), and the relevant articles are recorded as of November 9, 2015, and the defendant association can verify that it obtained authorization for the establishment of a housing association at least before the date of registration for the establishment of a housing association on December 30, 2015, based on sale and purchase of the project site on December 30, 2015 (see, e.g., evidence No. 5 within 1/3 of the evidence No. 5 and the date of authorization for the establishment of the defendant association).

Although the Defendant Union confirmed these matters at the time of November 2016, it stated to the Plaintiff that it could resolve this problem later, and required the Plaintiff to write out a written confirmation stating “not immediately registering a list of unions but at an appropriate time after the end” (see A’s certificate No. 6, e.g., the document kept by the Defendant Association).

4. Conclusion

In conclusion, the plaintiff did not meet the requirements of a member under the Enforcement Decree of the Housing Act, and therefore the defendant union.

The conclusion of a contract is impossible, and even if the contract was concluded on November 201, 2016, which can be said to be the time of conclusion, and thus, the contract becomes null and void because it fails to meet the requirements of the union members as of November 2016, which can be said to be the time of conclusion. Therefore, the defendant union is obligated to gain profits of KRW 52,600,000 and return it to the plaintiff

In addition, since the defendant union was aware of all of these matters as at the time of November 2016, it is liable to return profits as a malicious beneficiary under Article 749(1) of the Civil Code, and therefore, it is liable to pay damages for delay from December 9, 2016, which received the last gold sources, at least.