(former Shares) 2016Na12941 Construction Costs, etc.

Mao General Construction Corporation

In addition, the applicant for the action of the deceased A, the respondent

B

Jeonju District Court Decision 2015Kahap5902 Decided November 18, 2016

January 11, 2018

February 8, 2018

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance court is revoked. The defendant, who is the party to the lawsuit of the deceased A (hereinafter referred to as the "the deceased") shall pay to the plaintiff 4 million won and the amount calculated by the rate of 15% per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment, within the scope of the inherited property inherited to the deceased.

With respect to each real estate listed in the attached list of the court below, the pre-sale agreement entered into on March 24, 2014 between the deceased and the defendant shall be revoked, and the defendant will implement the procedure for cancellation of the registration of the pre-sale district court's indictment on March 24, 2014 to the defendant, who is the litigation transferee of the deceased.

1. Quotation of judgment of the first instance;

The reasons for this Court are as follows. The argument that the plaintiff emphasizes or adds to this Court is identical to the reasons for the first instance judgment, except for the following determination as to the assertion that the plaintiff emphasizes or adds to this Court: therefore, it is justified in the fact-finding and determination of the first instance court pursuant to the main text of Article 420 of the Civil Procedure Act (see, e.g., evidence produced in the first instance trial and evidence submitted in this court, even if the evidence submitted in this

2. Parts used or added;

* Of the reasons for the judgment of the first instance court, "Defendant A" shall be deemed to be "A", "Defendant B" to "Defendant B", and "Defendant B" to "A and the defendant" to be considered as "A and the defendant". However, the existing arguments of A are deemed to have been taken over by the defendant who is the litigation.

* * On the 3th decision of the first instance court, the following shall be added:

“E. A died on February 4, 2017 during the trial. The Defendant, one of his children, filed an appeal for qualified acceptance with the Jeonju District Court 2017Ra33. On May 2, 2017, the said court rendered an adjudication accepting the Defendant’s report on qualified acceptance, and the said adjudication became final and conclusive around that time. The Defendant taken over the instant lawsuit as a sole heir of the Deceased.”

* Defendant A shall pay to the Plaintiff KRW 400 million and damages for delay on the 4th, 5th, 4, and 5th, the first instance court’s decision, “The Defendant, who is a limited inheritor of the network, shall pay to the Plaintiff KRW 400 million and damages for delay thereon within the scope of the inherited property.”

3. Additional determination

A. The plaintiff's assertion

Considering the following circumstances, the legal nature of the committee of promotion of this case is nothing more than that of the partnership under the Civil Act, and an individual, a representative of the committee of promotion of this case and an association member, bears the duty of the deceased under the contract of this case and the deposit contract of defect bond

① The instant promotion committee did not file an application with the competent administrative agency for authorization to establish a regional housing association. The instant promotion committee failed to secure the right to use the instant project site at all, and did not recruit one member. Moreover, the matters to be promoted by the instant promotion committee was determined as the intention of 50,000 promoters without a resident general meeting. As such, the instant promotion committee existed only in a formal manner.

② Although the promotion committee for the establishment of the regional housing association is limited to preparing for the establishment of the regional housing association, the promotion committee of this case tried to directly conduct the regional housing project without holding the promotion committee. It is unclear what is the unique purpose of the promotion committee of this case.

③ Although the basic structure of an organization, including an incorporate organization, has to be established by the rules or other articles of association, there is no articles of association or regulations to regulate the instant promotion committee. No. 4, which the Defendant submitted as the rules of the promotion committee of this case, is merely the draft of the rules of the regional housing association to be established in the future, and the rules to regulate the promotion committee of this case are the rules to regulate the instant promotion committee.

The operating organization of the instant promotion committee is not an institution that is not based on the articles of association or regulations.

④ The resolution or duties of the institution of the instant promotion committee did not proceed in accordance with the principle of majority resolution. There was no discussion on the agenda.

⑤ The Jeju Film Committee itself was seriously vulnerable to one member’s entry and withdrawal from the Committee to the extent that its existence itself is threatened.

④ According to the testimony of 0 witnesses at the trial court, the meeting held on July 22, 2013 by the Defendant’s assertion cannot be deemed an inaugural general meeting for the establishment of the instant promotion committee. The content of the minutes of the above inaugural general meeting is not consistent with the facts, and thus, cannot be deemed to have been believed.

(b) Markets:

Considering all the circumstances acknowledged by the first instance court in relation to Gap evidence Nos. 1, 2, and 3 (including paper numbers; hereinafter the same shall apply), Eul evidence Nos. 1, 2, 4 through 7, 14, and 16, and the testimony of the witness witness at the trial, which can be acknowledged by comprehensively considering the overall purport of the pleadings, and the circumstances acknowledged by the first instance court in relation to this part, it is reasonable to view that the instant promotion committee was established as a non-corporate body at the time of entering into the instant contract and the deposit contract for defects. Accordingly, the plaintiff's assertion cannot be accepted.

① The instant contract document (Evidence No. 1) and the deposit contract (Evidence No. 2-1) signed between the Plaintiff and the instant promotion committee are named as the parties to the instant contract, and the official seal of the promotion committee of this case is affixed thereto. In particular, the instant contract for deposit of defective defects states that “the name of the corporation: (a) the promotion committee of the instant regional housing association is indicated in the column of the parties to the contract, and is premised on the premise that the promotion committee of this case is an independent organization with the rights and obligations under the instant contract for deposit of defective defects.

② Even if the promotion committee of this case prepared for the establishment of a regional housing association and directly promoted the project of this case, it is not reasonable to deem that this is not permissible under relevant Acts and subordinate statutes. It is reasonable to deem that the promotion committee of this case had a clear inherent purpose of establishing a regional housing association and promoting the project of this case.

③ According to the minutes of the inaugural General Meeting (No. 5) held on July 22, 2013 by the instant promotion committee, the promotion committee of this case is referred to as the “partnership” (No. 3, 4). The above general meeting of promoters, the rules of association (No. 4) and the rules of association (No. 4), which can be seen as referring to the rules of the instant promotion committee. Although the contents of the above rules of association are premised on the establishment of a regional housing association, the said rules of association are not consistent with the organization and operation of the instant promotion committee, even if there are parts that are not consistent with the organization and operation of the regional housing association, it seems to have been comprehensively established in the regional housing association to be established after the establishment of the instant promotion committee by reflecting the transition-term nature of the promotion committee of this case, rather than enacting the rules.

④ A witness at the trial room attended the inaugural general meeting and resolution of the instant promotion committee on July 22, 2013, and testified that he/she himself/herself affixed his/her seal on the minutes and resolution.

⑤ After the inaugural general meeting was held on July 22, 2013, the instant promotion committee was granted a registration number for real estate registration under the name of “E Regional Housing Association” on July 23, 2013. In addition, the instant promotion committee concluded a contract for sales agency services between New CNK and New CNK, Co., Ltd. on August 12, 2013, and entered into a contract for sales agency services between P and the KNK’s office on August 20, 2013. As such, the instant promotion committee was actually conducting the instant business after the inaugural general meeting was held on July 22, 2013.

(6) As such, there exist disposal documents, such as meeting minutes of the inaugural general meeting to support the substance as a non-corporate association of the instant promotion committee, resolution and various contracts related to the performance of duties after the inaugural general meeting. Although the promotion committee of this case failed to recruit union members, secure project sites, and establish a regional housing association, resulting in failure to go beyond the level of organization and operation at the time of the inaugural general meeting as of July 22, 2013, it is merely merely due to the circumstances after the promotion committee of this case had the body as a non-corporate association, and it is difficult to deny its substance on this ground.

4.In conclusion

Therefore, all of the Plaintiff’s claim of this case must be dismissed as it is without merit. The judgment of the court of first instance is just in conclusion, and the Plaintiff’s appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges of the presiding judge

Judges Choi Jong-chul

Judges Kim Jong-soo