[Judgment of the court below]

Defendant 1 and one other (Attorney Lee Jong-tae, Counsel for the defendant-appellant)

October 6, 2015

1. Defendant 2 shall pay to the Plaintiff 20 million won with 5% interest per annum from February 17, 2012 to November 10, 2015, and 15% interest per annum from the next day to the day of full payment.

2. The plaintiff's claim against the defendant 1 and the remaining claim against the defendant 2 are dismissed, respectively.

3. Of the costs of lawsuit, the part arising between the Plaintiff and Defendant 1 shall be borne by the Plaintiff, 1/2 of the part arising between the Plaintiff and Defendant 2, and the remainder by Defendant 2, respectively.

4. Paragraph 1 can be provisionally executed.

The Defendants shall pay to the Plaintiff 50 million won with 5% interest per annum from February 17, 2012 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

1. Facts of recognition;

A. On September 19, 2003, the Plaintiff entered into a sales contract with Defendant 1 to pay the remainder of KRW 40 million to the Plaintiff on January 30, 2004 (hereinafter “instant land”) on the purchase price of KRW 90,000,000,000,000 for the total of KRW 20,000,000,000,000,000 for the intermediate payment of KRW 30,000,000,000 for the intermediate payment of KRW 40,000,000 for the remainder payment of KRW 30,000 until November 8, 2003.

B. Around that time, the Plaintiff entered into a sales contract with Defendant 2 on August 23, 2004 to pay the remainder of KRW 30 million at the same time with the contract, and the remainder of KRW 60 million to be paid on August 23, 2004.

(c) The special terms and conditions of each of the above contracts are as follows:

1. The sales contract is concluded on the premise that the seller and the Seocho Sea Development Co., Ltd. (hereinafter referred to as the “Slow Sea Development”) actively cooperate in and participate in the comprehensive development plan for the 13 parcels other than the sale objects. Therefore, the buyer must cooperate in the development plan for Seo Sea Development with the seller.

2. The land to be traded shall have obtained the permission to divert farmland in the name of a third party, and the seller shall take measures to ensure that there is no problem in the matters regarding the permission to divert farmland;

3. This sales contract is not included in the cost of site development, so the buyer shall later bear the cost of site development within the limit of 100,000 won per square year.

4. The primary cost of registration shall be borne by the seller in relation to the registration after the construction of a building, and the cost of registration shall be borne by the seller in relation to the matters permitted to divert farmland under another person's name, and the seller's responsibility shall be borne by the buyer if the registration has not been made immediately to

D. On the day of the sales contract, Defendant 1 paid the Plaintiff the down payment of KRW 20 million, and on November 24, 2003, Defendant 1 paid the intermediate payment of KRW 50 million to Western Development.

E. Defendant 2 accepted the down payment of KRW 10 million paid by Nonparty 2 to the Plaintiff with respect to the instant land 2, and paid KRW 10 million to Nonparty 2. On August 24, 2004, Defendant 2 paid the remainder to the Plaintiff KRW 60 million.

F. Of the instant land 1, the registration of ownership transfer was completed on July 28, 2004 in the name of the Defendant’s wife Nonparty 1 on July 28, 2004.

G. Of the instant land 2, on August 24, 2004, the registration of ownership transfer was completed against Defendant 2 on the share of 820/3898 square meters, which was 3,898 square meters prior to Taean-gun ( Address 3 omitted).

H. Defendant 2 and Nonparty 1 completed the registration of share ownership transfer on April 19, 2010 on the current status of the roads for common use among the instant land 1 and 2.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 3, Eul evidence 6 (including branch numbers; hereinafter the same shall apply), Eul evidence 1 and 4, the purport of the whole pleadings

2. As to the claim against the defendant 1

A. Determination on the cause of the claim

According to the above facts, the plaintiff completed the registration of ownership transfer with respect to the land of this case to the defendant's wife non-party 1. The plaintiff does not have any dispute between the parties as to the completion of the housing site creation work with respect to the land of this case. Thus, the defendant is obligated to pay to the plaintiff the balance of the purchase price unpaid to the plaintiff, and the cost of housing site creation cost of KRW 30 million agreed upon (one million per square), unless there are special circumstances.

B. Determination on Defendant 1’s defense

1) Summary of Defendant 1’s assertion

㈎ 피고 1은 잔금 2,000만 원과 대지조성비 3,000만 원에 관하여 원고의 승낙 하에 원고의 대리인인 서해개발과 을 제3호증과 같이 정산을 마쳤으므로, 더 지급할 돈이 없다.

㈏ 가사 미지급한 돈이 있다고 하더라도, 잔금 2,000만 원에 관하여는 잔금 지급기일인 2004. 1. 30.로부터 10년이 경과하였으므로 소멸시효가 완성되었고, 대지조성비에 관하여는 원고가 대지조성공사를 마친 2004. 4.경부터 민법 제162조 소정의 10년의 소멸시효 기간이 도과하였거나, 민법 제163조 제3호 소정의 3년의 소멸시효 기간이 도과하였다.

2) Determination

㈎ 피고 1이 제출한 모든 증거들을 종합하여 보더라도, 피고 1이 을 제3호증의 기재와 같이 서해개발과의 사이에 정산을 마침으로써 원고에게 잔금 2,000만 원을 모두 변제하였다는 점을 인정하기에 부족하고 달리 증거가 없다. 이 부분 변제항변은 이유 없다.

㈏ 매매대금 잔금 2,000만 원 채권이 시효로 소멸하였는지에 관하여 보건대, 앞서 인정한 바와 같이 이 사건 1토지 매매대금 잔금 지급기일은 2004. 1. 30.이고 원고는 이때부터 10년이 도과한 이후인 2014. 5. 26. 피고 1을 상대로 이 사건 소를 제기한 사실은 기록상 명백하므로, 잔금 채권은 시효 완성으로 소멸하였다. 피고 1의 소멸시효 항변은 이유 있다.

In regard to this, the Plaintiff expressed his/her intention not to invoke the benefits for the period of prescription that has already expired after the completion of the registration of ownership transfer on July 28, 2004 and April 19, 2010 with respect to the land of this case, or approved the remainder of the obligation. Therefore, the extinctive prescription of the remainder of the obligation is asserted to run after the completion of the registration of ownership transfer with respect to the land of this case, but it cannot be deemed that Defendant 1 approved the remainder of the obligation solely because Defendant 1 completed the registration of ownership transfer with respect to the land of this case. In full view of all other evidence presented by the Plaintiff, it is insufficient to recognize that Defendant 1 expressed that he/she was aware of the existence of the unpaid obligation against the Plaintiff, or that he/she approved the remainder of the obligation.

㈐ 대지조성비 3,000만 원 채권이 시효로 소멸하였는지에 관하여 보건대, 앞서 본 바와 같이 원고와 피고 1 사이에 매매계약 특약사항에서 ‘매매계약은 대지조성비용이 포함되어 있지 아니하므로 매수인은 추후 단지개발에 따른 대지조성 비용을 평당 100,000원의 범위 내에서 추가로 부담하여야 한다.’라고 하여 매매대금과 대지조성비를 구별하고 있는 점, 매매계약 당시 대지조성비의 액수가 확정되어 있지 아니한 점, 원고의 주장 자체에 의하더라도, 위 대지조성비는 토목공사와 도로부분, 전기가설 및 배수관 설치에 관한 공사비를 수분양자들에게 일률적으로 배분하여 부담시키는 취지의 돈인 점 등을 종합하여 보면, 위 대지조성비는 실질적으로 공사비에 해당하여 민법 제163조 제3호 소정의 3년의 단기소멸시효가 적용된다고 봄이 상당하다. 그렇다면, 이 사건 1토지의 대지조성공사가 완료된 2004.경으로부터 3년 이상의 기간이 경과한 뒤 원고가 이 사건 소를 제기하였음은 기록상 명백하므로, 피고 1에 대한 대지조성비 채권은 시효 완성으로 소멸하였다. 피고 1의 이 부분 소멸시효 항변도 이유 있다.

C. Sub-committee

The plaintiff's claim against the defendant 1 is eventually groundless.

3. As to the claim against the defendant 2

A. The plaintiff's assertion

Although Defendant 2 had to pay down payment KRW 20 million to the Plaintiff upon completion of the registration on the joint ownership of the down payment that was not paid to the Plaintiff, it has not yet been paid yet. In addition, the construction of access roads, packaging, water supply, and sewage for the land of this case, which was a dry field, does not pay KRW 30 million for the site development cost, even though the construction on the land of this case was completed.

B. Summary of Defendant 2’s assertion

1) Defendant 2 paid the Plaintiff the down payment of KRW 20 million on August 24, 2004, separately from the receipt of the down payment of KRW 10 million by Nonparty 2 to the Plaintiff, and paid the Plaintiff a sum of KRW 90 million on August 24, 2004, and paid the remainder payment of KRW 20 million. Even if Defendant 2 did not pay the down payment of KRW 20 million, this constitutes the down payment, which constitutes the down payment, and the Plaintiff filed a lawsuit after the lapse of 10 years thereafter, the period of extinctive prescription of the said claim has expired.

2) Since the instant land No. 2 was created as a site due to the lack of permission to divert farmland, Defendant 2 did not have the obligation to pay the Plaintiff the cost of creating the site. Even if Defendant 2 had the obligation to pay the Plaintiff the cost of creating the site, Defendant 2 applied for development activities on the instant land under the name of Nonparty 3, a husband, in light of the fact that Defendant 2 applied for development activities on the instant land under the name of Nonparty 3, a husband, around March 2004, the extinctive prescription period of the claim for the cost of creating the site expired from March 2004. Therefore, the claim for the

C. Determination

1) As to the claim for the unpaid down payment

According to the above facts of recognition, Defendant 2 is obligated to pay to the Plaintiff the purchase price of KRW 20 million and damages for delay, which have not been paid to the Plaintiff, except in extenuating circumstances.

Defendant 2 asserted that he paid KRW 20 million to the Plaintiff on the day of the sales contract, but there is no evidence to acknowledge this, and this part of the defense for repayment is rejected.

As to Defendant 2’s defense of extinctive prescription, the issue is when the down payment period, which is the starting date of the extinctive prescription, runs from the date of the payment of the down payment, which is the due date. As the Plaintiff’s actual contract date, which is the date of the contract between Plaintiff and Defendant 2, is only the date of the contract of Nonparty 2, the purchaser of the instant land, and the actual contract date with Defendant 2, which is the date of the contract of this case, is August 21, 2004, which is the date of the contract indicated as the grounds for registration in the certified copy of the register of the instant two land, on September 19, 2003, which is not the date of the actual contract of Defendant 2, and the fact that Defendant 2’s actual contract date is not the date of the contract of this case, the Plaintiff asserted that the actual contract date of Defendant 2 from around January 2004 to around 204, which is the date of the contract of this case between Plaintiff and Defendant 2, as alleged by the Defendant.

Therefore, Defendant 2 is obligated to pay damages for delay at each rate of 5% per annum under the Civil Act and 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment, where it is deemed reasonable for Defendant 2 to dispute about the existence and scope of the obligation from February 17, 2012 to February 10, 2015, as sought by the Plaintiff.

2) As to the claim for the cost of housing site creation

The Plaintiff asserts that the construction of housing site was completed with respect to the instant land 2. However, even if the Housing Site Creation Work is completed and the Plaintiff has a claim for the construction cost, it is reasonable to deem that the short-term extinctive prescription of three years is applied in view of the nature of the claim for the construction cost, as recognized in the foregoing 2.c., and it is apparent that the Plaintiff filed the instant lawsuit from July 2004 to July 3, 2004, when the Housing Site Creation Work was completed, which was alleged by the Plaintiff, and thus, it is apparent in the record that the Plaintiff filed the instant lawsuit against Defendant 2 after the lapse of more than three years. As such, the claim for housing site Construction cost against Defendant 2

3. Conclusion

Therefore, the plaintiff's claim against the defendant 2 is justified within the above scope of recognition, and the remaining claims against the defendant 1 and the defendant 2 are dismissed as it is without merit. It is so decided as per Disposition.

Judges Dok-ho