Maximum Jinjin and 109 others (Law Firm Sung, Attorneys Kim Jong-ho et al., Counsel for the plaintiff-appellant)

The administrator of Yyoung Co., Ltd., the administrator of Ye Young-gu Co., Ltd., the administrator of Yeak-gu Co., Ltd. (Law Firm Sejong, Attorneys O Jong-ok et al., Counsel for plaintiff-appellant)

March 10, 2004

Suwon District Court Decision 99 Gohap8350, 99 Gohap13529 (merged) Decided August 23, 2001

1. The decision of the first instance court, including the plaintiffs' claims expanded in the trial, is modified as follows.

A. The defendant shall pay to the plaintiffs 5% interest per annum from September 14, 2002 to April 13, 2004, and 20% interest per annum from the next day to the day of full payment. The defendant shall pay to the plaintiffs the amount corresponding to the item column of the statement of calculation of unjust enrichment in the attached Form.

B. Each of the plaintiffs' remaining claims (including the part extended in the trial) is dismissed.

2. The total costs of the lawsuit shall be five equal costs, and four equal costs shall be borne by the defendant, and the remainder by the plaintiffs.

3. Paragraph 1(a) of this Article may be provisionally executed.

The defendant shall pay to the plaintiffs an amount calculated by the ratio of 25% per annum from September 13, 2002 to the day from the day after the day after the copy of the application for amendment of the claim was served as of September 13, 2002 to the day of complete payment of the corresponding amount in the column of the statement of calculation of unjust enrichment in the attached Form (the court extended the purport of the claim in the case of the plaintiff within his inner, leap, the leap, the leap, the leap, the le

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by comprehensively taking into account the following facts: Gap evidence 1-27, Gap evidence 2-2, Gap evidence 5-1-2, Gap evidence 6-2, Gap evidence 7, Gap evidence 8-1 through 3, Gap evidence 9-1 through 111, Gap evidence 10-1 through 21, Eul evidence 1-3, Eul evidence 4-1, Eul evidence 4-2, Eul evidence 9-1 through 12, and the whole purport of arguments as to the results of the inquiry into the government market by the court of first instance.

A. From July 1995 to March 1996, the Plaintiffs entered into a contract under which one household (hereinafter “instant apartment”) was purchased from among the 832 households of the building apartment units, which are scheduled to be constructed on the 471st unit and 21 units of the Dong-dong, Jungdong-dong, Jungdong-dong, and the 832 units of the building (hereinafter “instant apartment”) (hereinafter “instant sales contract”).

B. The amount and time of payment by horizontal water supply (based on the intermediate floor) in accordance with the public announcement of sale of the apartment of this case shall be as follows:

(a) 22 square meters: 13,141,00 won in down payment (contract) and part payment, each of 6,760,000 won in intermediate payment, and 12,000,000 won in remainder (designated date); and

(b) 27 square meters: 17,101,00 won in down payment (time of contract) and part payment, each of 8,51,000 won in intermediate payment, and 17,102,00 won in remainder (designated date of occupancy); and

(c) 32 square meters: 20,118,00 won in down payment (contract) and part payment, each of 10,059,00 won in intermediate payment, and 20,118,00 won in remainder (designated date); and

(4) Date of the intermediate payment: August 7, 1995 (1), February 7, 1996 (2); August 7, 1996 (3); February 6, 1997 (4); August 7, 1998 (5); 6.2.7 (6)

C. Article 7(1) of the “former apartment supply contract,” which provides rights and obligations between the plaintiffs and the reorganization company pursuant to the instant sales contract, provides that when the purchaser delayed the payment of the intermediate payment and the balance and the payment date of the contract has expired, the overdue charge calculated by applying the financial institution’s overdue rate (17% per annum) to the number of elapsed days shall be added and paid, but the amount to be paid shall be appropriated in the order of overdue charges and the sales price, and Article 7(2) of the above supply contract provides that where the seller is unable to move into on the scheduled date for occupancy at the time of the public announcement of the supply, the buyer may pay the overdue charge to the buyer within the overdue rate set forth in Article 7(1) of the above supply contract or deduct the remainder from the remaining price.

D. The scheduled date of the occupancy according to the public notice of the sale of the apartment of this case is around October 31, 1998.

E. On August 26, 1996, the Seoul District Court rendered a decision to dispose of the property for the reorganization company around August 26, 1996, the decision to commence corporate reorganization procedures around May 19, 197, the defendant was appointed as the administrator of the reorganization company around May 29, 199, and issued a decision to authorize corporate reorganization programs on March 31, 198.

F. On September 25, 1996, the decision of provisional seizure was made by the Suwon District Court on the site of the apartment of this case upon the application of the Korea Guarantee Insurance Co., Ltd. on September 25, 1996, and the provisional seizure registration was completed on October 2, 1996, including the provisional seizure registration of KRW 2,200,000,000 as the claimed amount, until September 8, 1998, total of KRW 23,406,486,207.

G. Around June 7, 1997, the reorganization company sent to the Plaintiffs a proof of the content that “The scheduled date of occupancy will be postponed from October 31, 1998 to April 1999 due to the delay in the construction of the instant apartment.”

H. The Plaintiffs did not pay each part of the intermediate payment to the reorganization company from the fourth to fifth time on the grounds of the provisional attachment, delay of construction, and the scheduled date of occupancy.

I. The liquidation company shall set off the compensation for delay against the representative and executive officers of the "Committee on Countermeasures against Residents in Dogdong-dong Apartment-dong's Residents," which was delegated by the plaintiffs on January 29, 1999, and "the compensation for delay shall be set off against the remaining prices of the prospective occupants in accordance with the supply contract, and the settlement of the compensation for delay shall be calculated on the basis of the total amount of the compensation for delay to be paid until occupancy (=the intermediate payment including the down payment + the balance of the late payment) excluding the late payment and the remainder, and the amount of the compensation for delay shall be calculated on the basis of 103 days and the late payment charge shall be 17%. The number of delayed days shall be 100,000 won among the remainder of the provisional attachment registration established on the site of an apartment. The provisional attachment is complete from February 11, 199 to September 199 (hereinafter referred to as the "agreement")

(j) On February 1, 199, following the above agreement, occupants, including the plaintiffs, sent to the reorganization company a content-certified mail (Evidence No. 11) claiming that they have no obligation to pay the late payment charge, and then expressed their intent to claim the return of the late payment charge through a lawsuit later.

(k) After that, the plaintiffs paid late payment to the reorganization company with late payment charges added to the part payment unpaid, and the reorganization company paid late payment payments, part payments, and part payments paid after the agreement between the plaintiffs, to the plaintiffs, or deducted the equivalent amount of liquidated damages from the balance paid by the plaintiffs.

2. Determination

A. Determination on the cause of the claim

(1) The plaintiffs asserted that in late payment charges of the fourth, fifth, and sixth part payments received by the reorganization company from the plaintiffs, the amount calculated by deducting the compensation for delay from the plaintiffs' payment charges of the fourth, fifth, and sixth part payments received from the reorganization company is unjust enrichment and seek the return thereof against the defendant.

(2) On the other hand, the plaintiffs are obligated to pay part payments to the reorganization company, and the reorganization company is obligated to allow the plaintiffs to move into the apartment of this case. The above obligation of the plaintiffs is to be fulfilled in preference to the above obligation of the reorganization company, but on the other hand, the credit unfortunateness of the reorganization company and the aggravation of the financial status of the reorganization company mentioned above are obligations of the reorganization company under Article 536 (2) of the Civil Code or "if there is a person claiming a right to the subject matter of sale, there is a concern that the purchaser will lose the whole or part of the right purchased by the purchaser" under Article 588 of the Civil Code, and thus, the reorganization company will not be held liable for delay until there is no concern that the purchase right will be lost. At least until the agreement of this case, the plaintiffs did not pay the above 4, 5, and 6 part payments by the resolution of this case.

(3) The amount of late January 29, 199, which the plaintiffs are liable to pay to the reorganization company, the late payment of the 4,5,6, and the late payment of late January 29, 199, the agreement of this case, and the late payment of late January 29, 199, are the same as the stated in the corresponding column of the calculation statement of unjust enrichment amount. The fact that the plaintiffs paid the above late payment charges to the defendant does not conflict between the parties, and the fact that the plaintiffs paid the above late payment charges to the defendant. Thus, the amount calculated by subtracting the above late payment penalty, which the plaintiffs have received from the above late payment charges, is profits without legal grounds, and thereby causing losses to the plaintiffs. Thus, the defendant is obligated to pay the amount

B. Judgment on the defendant's assertion

(1) First, the defendant asserts that even if there exists a defense right under Article 536(2) of the Civil Act or a right to refuse payment under Article 588 of the Civil Act against the plaintiffs, such right has its effect to the reorganization company, and in this case, the plaintiffs cannot avoid liability for delay of payment based on the above right since they did not actively express such intent.

On the other hand, even though the right to refuse the prior performance under Article 536(2) of the Civil Act does not specifically state the intention to refuse performance, the existence of the right to refuse performance itself does not cause any liability for delay of performance. Therefore, the above argument by the defendant is without merit without further review.

(2) In addition, even if the defendant has the above right of defense against the plaintiffs, in the agreement between the plaintiffs and the reorganization company in this case, with the purport that the plaintiffs and the reorganization company settle each other's delayed payment and delayed occupancy, the reorganization company shall not respond to the plaintiffs' claims on the grounds that, instead of paying compensation for delay calculated from the first scheduled date of occupancy based on the money excluding the late payment and the balance paid by the reorganization company, the plaintiffs shall waive their right to refuse the payment of the intermediate payment and the balance and pay all late payment and the late payment to the reorganization company.

Therefore, as seen earlier, the agreement of this case states that "the total supply amount to be paid by the time of occupancy" includes "the intermediate payment containing the delayed charge" among the "the total supply amount to be paid". However, as shown in the defendant's argument, it is difficult to believe that Eul evidence Nos. 5 and Eul evidence Nos. 3 (the duty of liquidation company's liability and the duty of liquidation) were stated in the agreement of this case, in light of the circumstances leading up to the agreement of this case and the progress thereafter, and the above "the delayed charge" can be seen as the late payment charge which had already been paid before the agreement of this case. Therefore, it is insufficient to recognize the above argument of the defendant alone, and there is no other evidence to acknowledge it. Rather, there is no evidence to acknowledge it differently, and there is no evidence to acknowledge it, and there is no reason to conclude that the agreement of this case as to the late payment charge is an important issue as to the late payment charge without the agreement of the defendant as to the above late payment charge.

(3) In the instant sales contract, the Defendant, which is a bilateral contract, has the obligation to pay the part payments of the Plaintiffs and to allow the Plaintiffs to move into the reorganization company from the time when the scheduled date of occupancy has arrived at the time when the payment of the part payments was delayed, and thus, the reorganization company is not liable for delay until the Plaintiffs pay the part payments in full. Therefore, the liquidation company is not liable for delay until the Plaintiffs pay the part payments. Accordingly, the liquidated damages paid by the reorganization company to the Plaintiffs without the obligation to pay the part payments and the liquidated damages for the part payments of the first, second, and third, shall be returned as unjust enrichment. Accordingly, the Defendant

On the other hand, the reorganization company agreed to pay the above liquidated damages to the plaintiffs in the agreement of this case. According to the above evidence, the reorganization company agreed to pay the liquidated damages to the plaintiffs. The reorganization company shall pay the liquidated damages to the occupants through the agreement of this case, regardless of the existence of concurrent performance relationship in order to avoid the contract relationship between the construction and supply of the apartment of this case, such as the default of the company and the provisional attachment on the site of the apartment of this case, due to the reasons attributable to it, such as the default of the company and the provisional attachment on the site of this case.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiffs the amount corresponding to the amount of unjust enrichment in the above calculation statement as well as each of the above amounts after the date of the notice of performance. Since September 14, 2002, which is the day following the day of service of the copy of the application for amendment of the purport of the claim as of September 13, 2002 that the plaintiffs sought, the defendant is obligated to pay 5% per annum from September 14, 2002 to April 13, 2004, which is the day of this decision, and 20% per annum from the next day to the day of full payment. Thus, the plaintiffs' claim including the extended portion in the trial, is justified within the above recognition scope, and it is dismissed for the reasons, and since the conclusion of the judgment of the first instance is unfair, it is accepted part of each claim extended from the plaintiffs' appeal and the trial, and it is decided as per Disposition by the assent of the first instance judgment.

Judges Maximum number (Presiding Judge) Lee Sang-hoon