2017Du24096 Guarantee obligations

Co., Ltd. Gask

1.A

2. B

January 17, 2018

February 14, 2018

1. The plaintiff's claims against the defendants are all dismissed.

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

The Defendants shall pay to the Plaintiff 412,50,000 won with 15% interest per annum from the day following the day of service of a copy of the instant complaint to the day of full payment.

1. Basic facts

A. The Plaintiff is a company that operates the real estate leasing and selling business, and the Defendant A is the head of the regional housing association that is the regional housing association that is established for the purpose of the new apartment construction project (hereinafter referred to as the “new construction project”) in the Nam-gu Seoul Metropolitan Government Seoul (hereinafter referred to as the “instant project site”) and the Defendant B is the vice head of the regional housing association.

B. (tentatively, around January 2015, the E Promotion Committee (hereinafter referred to as the “Promotion Committee”) entered into an administrative service agency contract with the Plaintiff with respect to all business affairs, etc. related to the purchase of the instant private site (hereinafter referred to as the “instant agency contract”), and the main contents thereof are as follows:

행정용역업무대행계약서제 2조 (업무분장)· 1. 추진위원회와 원고는 본 사업의 신속하고 정상적인 수행을 위하여 각자 업무를 분담하여성실히 수행하고 상호 협력하며 그에 따른 책임을 다한다.· 2. 추진위원회는 아래의 사항을 성실히 이행한다.1) 사업부지 매입2) 조합원 모집3) 본 사업과 관련된 제반 사업비 부담4) 본 사업과 관련된 모든 채권 및 채무 처리 업무5) 사업부지 전체에 관한 가처분 등 권리제한 사항 말소6) "본 사업"과 관련된 제반 용역업체 선정 및 계약 체결7) 상기 업무를 포함하여 본 사업에 필요한 모든 수행업무, 결정을 원고에게 지원하며일괄 위임한다.· 3. 원고는 제2항의 추진위원회 업무를 일괄 위임받아 아래의 사항을 성실히 이행한다.1) 사업부지 매입과 관련한 총괄 및 제반 업무2) 입지 검토, 사업성 검토3) 토지 매매계약, 토지거래 신고 및 소유권 이전등기/신탁등기 업무4) 기타 소유권•저당권 등 관련 모든 업무· 5) 추진위원회의 조합원 모집 보조 및 지원 업무, 공급가격의 결정, 분양광고, 홍보와 관련한 총괄 및 제반 업무· 6) M/H건립, 운영, 광고 등 제반 계획의 수립/시행 및 가입자(조합원) 관리, 상담, 통보등의 업무· 7) 분담금 납입관리 업무, 기타 조합 및 관련 법규에 저촉되는 행위금지사항 안내 등의업무· 8) 인허가 관련한 총괄 및 제반 사항 업무· 9) 단체등록, 주택조합설립신청, 인가, 각종 영향평가, 사업계획승인, 준공, 입주, 등기, 청산 업무· 10) 법무, 세무, 회계, 변호사 등의 선정계약 및 상가분양 등의 처분 업무· 11) 조합원 및 조합 사용 인감도장의 인장 날인•관리 업무 등· 12) 기타 본 사업을 위한 모든 사항의 업무수행•결정을 포함한다.제3조(수수료의 집행)· 1. 행정 용역 업무대행 업무의 수행은 전적으로 추진위원회가 원고에게 위임한 사항으로서,수행에 따른 비용 처리는 추진위원회가 원고에게 위임한 계약에 따라 주택가격 외 조합원이 별도로 납부하는 조합업무추진비로 전액 처리하고, 매월 회계처리하여 보고한다.· 2. 조합설립인가 전 투입되는 관련 비용(광고, 홍보비, 분양관련비용, 모델하우스 건립비 및운영비, 기타 등)으| 증빙은 원고의 세금계산서로 갈음할 수 있다.· 3. 추진위원회는 본조 제2항의 관련 비용을 행정용역업무대행 수수료로 지급해야 하는 조합업무추진비에서 우선 집행하고, 조합설립인가 후 관련 비용이 포함되어 있는 아파트건립분담금에서 정산하여 원고에게 행정 용역 업무대행 수수료로 지급한다.제4조(책임의무 사항)· 1. 추진위원회는 원고가 본 계약에 따른 업무대행 업무를 충실히 이행할 수 있도록 다음과같은 사항들을 최대한 협조 및 지원하여야 한다.· 1) 토지매입비, 건축공사비, 간접공사비, 주택전시관 공사비, 분양 관련비, 각종 제세공과금, 금융 관련비, 기타 사업추진자금이 포함된 아파트건립분담금 및 조합업무추진비의성실한 납부 등· 2) 토지분필, 합필, 기부채납, 제척지, 등기 등에 필요한 가입자(조합원) 개개인의 날인 및 서류발급 등3) 제2조 전체 사항의 수행에 있어서 책정된 자금에 대한 추가되는 자금 납부 등4) 가입자(조합원)의 주소지, 연락처 등(변경 시 포함)을 즉시 원고에게 통보 및 불법 사항금지 등5) 조합설립인가 전 발생한 비용 및 제반 사안의 수행은 추진위원회의 본 사업에 관련된비용임을 인지하여 당해 비용 결제를 위해 사업추진운영비 납부에 적극 협조한다.6) 아파트 건립사업에 따라 기 추진된 사항 및 향후 사항에 대하여 동의•인준•승인과 위임2. 원고는 본 계약에 따른 제2조 사항의 업무를 추진위원회에서 위임받아 충실하게 이행한 다.1) 사업추진비 집행, 운영과 그에 대한 명세표 작성, 단 업무대행 수수료 명세표는 제외한다.2) 조합 임원 등에 대한 관리, 조합회계 관리, 조합원 관리, 기타 본 사업을 위한 제반사항의 관리3) 원활한 업무추진을 위하여 자문인력 등을 계약할 수 있다.4) 조합의 사업추진 내역은 조합 서신으로 가입자(조합원)에게 개별 통지하고, 관계 법령에 따라 외부 회계감사를 받아 회계감사 보고서를 작성한다.제5조(수수료 및 대여금 지급방법)1. 행정용역업무대행 수수료는 조합원(일반분양자 포함)이 아파트건립분담금 외 별도로 납부 하는 조합업무추진비로 지급하되, 사업승인 시의 설계 세대수(변경승인 시 변경되는 세대수)를 기준으로 하여 전부[조합설립인가수가 사업승인 설계 세대수에 미지지 아니할 경우사업비(일반분양가 등)에서 충당하여 지급]를 원고에게 지급하여 사용토록 한다.계획 세대수업무추진비(세대별 납부금)합계약 846세대10,000,000원8,460,000,000원(1) 조합업무추진비 납부는 추진위원회와 원고가 협의하여 지정한 신탁사 계좌에 가입자(조합원)가 납부케 하고, 원고가 직접 관리한다.(2) 제3조 제2항의 관련 비용 외에 조합 설립 전 원고가 본 사업과 관련하여 선집행한금액은 별도의 계약서 없이 추진위원회에 지불한 대여금으로 본다. 조합설립 후 추진위원회는 원고가 제출한 선집행 내역 및 증빙서류(세금계산서 포함)가 본 사업과관련된 비용임이 인정될 경우 대여금을 원고에게 지급하기로 한다.(3) 추진위원회가 원고에게 지급할 업무대행 수수료는 다음의 계획에 따라 사용토록 지급하고, 이에 대한 부가가치세는 사업비에서 충당하여 별도로 지급한다.구분지급시기비율조합설립총회조합설립총회 시20%조합설립인가신청조합설립인가신청 시20%조합설립인가조합설립인가 시30%사업승인신청사업승인신청 시10%사업승인사업승인 시10%조합청산신청조합청산신청 시10%제10조(기타)2. 본 계약에 명시되지 않은 사항은 조합원 가입신청서, 조합 규약(기준 규약) 및 일반 관례 에 따른다.

C. On June 9, 2015, the D Regional Housing Association has ratified the affairs previously performed by the Promotion Committee by holding an inaugural general meeting, and obtained authorization for the establishment of the Housing Association from the head of Ulsan Northern District Office on September 25, 2015.

D. On April 19, 2017, the D Regional Housing Association promised to pay KRW 200,000,000 to the Plaintiff on April 19, 2017, out of the monthly administrative services cost of KRW 825,000,000 (hereinafter “instant administrative services cost”), which was unpaid to the Plaintiff on April 19, 2017 (hereinafter “instant undertaking”). The Defendants guaranteed the payment of the obligations under the instant undertaking by July 20, 2017 (hereinafter “instant undertaking”). The main contents of the instant undertaking are as follows.

It is not paid KRW 825,000,000 for monthly administrative services to be paid to the creditor, who is an agent, by July 20, 2017.As of April 19, 2017, the D Regional Housing Association is promising to pay KRW 200,000 for the daily payment of KRW 200,000 for the daily payment of KRW 200,000 for the administrative services as of April 19, 2017. The monthly administrative services costs will be paid for the daily payment of KRW 625,00,000 for the non-paid daily payment of KRW 20,000 for the remainder of the payment to the plaintiff.In the future, the monthly administrative services costs will be paid each month after consultation.

(e)The laws and regulations relating to the instant case and the bylaws of the District Housing Association shall be as follows:

(1) Where the housing association is to be established (referring to the housing that is constructed with the approval of a project plan under Article 16) with many constituent members under the provisions of Article 32 (Establishment, etc. of the Housing Act) of the former Housing Act (wholly amended by Act No. 13805, Jan. 19, 2016; hereinafter referred to as the "former Housing Act"). The same shall also apply where the head of the competent Si/Gun/Gu intends to change the matters of the housing association or dissolve the housing association. (2) In addition to the cases of the latter part of paragraph (1), the person who intends to obtain the authorization of the housing association shall obtain the approval of the housing association from the head of the competent Si/Gun/Gu (excluding the cases of workplace housing associations under paragraph (3)) with the agreement of the housing association established pursuant to the provisions of Article 32 (excluding the housing association which does not increase). In addition to the cases of the latter part of paragraph (1), the person who intends to obtain the approval of the housing association shall be jointly prescribed by Presidential Decree.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 4, Eul evidence Nos. 1, 2, 7, and 8, the purport of the whole pleadings

2. Determination

A. The parties' assertion

1) The plaintiff's assertion

The Defendants guaranteed the Plaintiff’s obligation to pay the instant administrative service cost under the instant undertaking of the D Regional Housing Association. As such, the Defendants are obligated to pay each of the Plaintiff KRW 412,50,000 (i.e., the instant administrative service cost KRW 825,00,000) and damages for delay (ii).

2) The defendants' assertion

A) According to Article 17(5)3 of the former Enforcement Rule of the Housing Act and Article 23(1)3 of the Rules of the D Regional Housing Association, where a contract that will impose a burden on the members is entered into in addition to the matters stipulated in the budget, it shall be subject to a resolution of ratification by the general meeting of the members. The instant agency contract, which was concluded without taking such procedures, is null and void because it violates the Housing Act, which is a mandatory provision, or violates the Defendants’ delegation restriction provisions, which are non-corporate associations

B) Even if the instant agency contract is valid, D Regional Housing Association already paid to the Plaintiff the administrative service cost exceeding the administrative service cost for the actual service duties performed by the Plaintiff.

C) The Plaintiff did not demand reimbursement of the Plaintiff’s obligation to D Regional Housing Association, the principal obligor of the instant administrative service costs under the instant undertaking, and there is no fact that the D Regional Housing Association searched whether it has the ability to repay. Therefore, the Defendants refused the Plaintiff’s claim for payment of the deposit due to the highest and search defense.

B. Whether the instant agency contract is invalid

1) Whether the instant agency contract was invalid in violation of the Housing Act and subordinate statutes

Article 37 (2) of the former Enforcement Decree of the Housing Act provides for matters to be included in partnership regulations, and subparagraph 9 shall include matters to be resolved by a general meeting, the quorum for resolution, and the procedure for resolution. In such cases, matters to be resolved by a general meeting shall be prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs. Accordingly, Article 17 (5) 3 of the former Enforcement Decree of the Housing Act provides for "in addition to matters to be resolved by a general meeting under the latter part of Article 37 (2) 9 of the Enforcement Decree of the Housing Act, the conclusion of a contract

① However, Article 17(5) of the former Enforcement Rule of the Housing Act only provides for the contents to be included in the partnership regulations, such as the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, but does not provide for the resolution of a general meeting (Article 24(3)5), or for the criminal punishment of the executive officers of a cooperative that promotes a project without the resolution of a general meeting in comparison with the above matters, and (2) provides for the provision of the Housing Act that does not directly prohibit the conclusion of a contract without the resolution of a general meeting of the union members and provides for the regulations on such matters, it is difficult to view that Article 17(5) of the former Enforcement Rule of the Housing Act does not deny the judicial effect of concluding a contract without the resolution of a general meeting of the union members.

Therefore, even if the instant agency contract violates Article 17(5) of the former Enforcement Rule of the Housing Act and was concluded without the resolution of the general meeting of the association members, it is not naturally null and void. Therefore, this part of the Defendants’ assertion is without merit.

2) Whether the D Regional Housing Association should undergo a resolution at the general meeting of its members pursuant to Article 23(1)3 of the Rules

Article 23 (1) 3 of the Rules of the D Regional Housing Association provides that "a contract that shall be borne by the union members shall be determined by the resolution of a general meeting, in addition to the matters stipulated in the budget." In this context, "a contract that shall be borne by the union members" means a contract that incurs a burden on the union members by paying money or paying a debt beyond the items and scope set forth in the budget of the union, and "budget" means "the revenue and expenditure plan of one fiscal year prescribed in the rules of the union."

On the other hand, there is no evidence to see that the service cost of the instant agency contract was stipulated as the "budget". Thus, the conclusion of the instant agency contract is a case where the partner executes a contract that imposes a burden on the expenses of the association members by paying money or taking a debt beyond the items and scope set forth in the "budget of the association", i.e., the contract that imposes a burden on the expenses of the association members, in addition to the matters set forth in the budget.

3) Whether there was a resolution at a general meeting of the association members on the instant agency contract

According to the evidence mentioned above, although the D Regional Housing Association held the inaugural general meeting on June 9, 2015 and held it on the agenda of ratification of the instant agency contract, it is recognized as having been passed at the inaugural general meeting, the following facts or circumstances recognized as having added the whole purport of the arguments in the evidence Nos. 7 and 8, i.e., the conclusion of the instant agency contract on the face of 52 pages of the inaugural general meeting distributed around June 9, 2015, which is the date of the inaugural general meeting of D Regional Housing Association, are stated in the records of the execution of the instant agency contract among the details of the project promotion promotion committee. However, the books of the above inaugural general meeting are not mentioned in the general contents of the instant agency contract (total service cost, time and condition of service cost, household contributions, etc.) and the members of the D Regional Housing Association at the inaugural general meeting did not seek ratification of the instant agency agreement with the members of the 52th general meeting.

In full view of the following facts: (a) there is no evidence to acknowledge the existence of a company that distributed separate data that can generally grasp the contents of the instant agency contract; and (b) Article 17(5)3 of the former Enforcement Rule of the Housing Act and Article 23(1)3 of the D Regional Housing Association Rules provide that the intent of the association members shall be reflected in the matters affecting the rights and obligations of the association members; (c) in case of ratification of the “contract that will be borne by the association members, other than the matters stipulated in the budget,” it is difficult for the society to clearly state the degree of the burden to be borne by the association members upon the conclusion of the contract and to make a resolution for ratification thereof. In full view of the fact that there is no evidence to deem that there was no legitimate resolution of the D Regional Housing Association for ratification of the instant agency contract.

4) Whether the instant agency contract is null and void due to a violation of the restriction on power of representation

A) A regional housing association is a regional housing association established under the former Housing Act, which is a collective housing construction project with the inherent purpose of its establishment, and is composed of bylaws and organizations with the organization as an executive body, and its resolution or execution method becomes final and conclusive as an organization itself regardless of the change following the general meeting’s majority resolution and the withdrawal from membership. Therefore, Article 23(1)3 of the Rules of the D regional housing association, which is subject to the resolution at the general meeting of the association members, constitutes a non-corporate group, as it constitutes a provision that restricts the representative’s power of representation. Thus, if the other party to the transaction knew of, or was negligent in, the restriction on the power of representation and the violation thereof, the transaction becomes null and void.

It is reasonable to see that it is deemed that it is (see, e.g., Supreme Court en banc Decision 2004Da60072, 60089, Apr. 19, 2007).

B) In light of the above legal principles, it is necessary to pass a resolution at the general meeting of the association members upon entering into the instant agency contract. However, D Regional Housing Association may recognize the fact that it did not undergo a resolution at the general meeting of the association members which ratified the instant agency contract. In addition, the following facts and circumstances are comprehensively taken into account: (i) the instant agency contract carries out the overall activities of the Plaintiff, such as authorization for establishment of D Regional Housing Association, etc.; (ii) the Plaintiff is obliged to carry out the instant agency activities based on the rules of D Regional Housing Association; (iii) the Plaintiff appears to have conducted the instant agency activities in advance in violation of the rules of the association to be presented at the inaugural general meeting in promoting the instant agency contracts with the Promotion Committee; and (ii) Article 17(5)3 of the former Enforcement Rule of the Housing Act, which was in force at the time of entering into the instant agency contracts, provides that the Plaintiff may perform the instant agency activities in violation of Article 23(1)3 of the Rules of the Local Housing Association and the instant agency activities in violation of the rules (3).

It is reasonable to deem that the instant agency contract was void, since it was aware of the fact that it did not go through a legitimate ratification procedure through a resolution, or did not know such fact due to negligence.

5) Sub-committee

Therefore, since the instant agency contract is null and void, it also becomes null and void, on the premise that the instant agency contract is valid, the instant undertaking setting the payment method of the administrative service costs of this case is also null and void. Thus, the Defendants cannot be deemed to bear the Plaintiff’s obligation to pay the administrative service costs of this case as a guarantor pursuant to the instant undertaking (as long as the instant agency contract becomes null and void and the Plaintiff’s assertion is rejected, it is not further examined as to the Defendants’ assertion on the excessive payment of the administrative service costs or the right to defense of highest search)

3.In conclusion

Therefore, the plaintiff's claim against the defendants is dismissed in its entirety, and it is so decided as per Disposition.

Judges in the future;

Judge Lee Jong-soo

Judge Lee Jong-chul

1) Under the premise that the Defendants are simple guarantors of the instant administrative service obligations under the instant undertaking, the Plaintiff claims against the Defendants only KRW 412,500,000, which is attributable to 1/2 of the instant administrative service costs, respectively.