2014Da215406 Loans

Hyundai Industrial Development Co., Ltd.

1. Amateur reconstruction association;

2. B

3. C.

4. D;

5. E.

6. F;

Seoul High Court Decision 2013Na2016198 Decided June 12, 2014

April 12, 2016

The part of the lower judgment against the Defendants is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. As to the grounds of appeal on the defense before the merits, the court below rejected the defendants' prior defense on the merits, on the grounds of its stated reasoning, that the phrase "a statement of performance included in the project participation proposal of this case submitted by the plaintiff to the defendant A apartment reconstruction association (hereinafter referred to as "the defendant reconstruction association") that " even if the defendant association loses qualifications for performing construction works or invalidates the selection of a contractor, it cannot be asserted that the plaintiff's association's loss of qualifications for performing construction works or invalidation of the selection of a contractor cannot be asserted without any civil or criminal objection against the decision determined by the defendant association, and it cannot be interpreted as a non-litigation agreement that the plaintiff would not file a claim of this case. Upon examining the records, the court below's aforementioned determination is justifiable. There is no violation of law such as exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules.

2. As to the assertion on the legal nature of the instant project expenses and the claim for the repayment of loans for the project expenses

A. We examine the gist of this part of the judgment of the court below.

(1) The lower court first acknowledged the following facts.

① The Plaintiff is a company with the purpose of housing construction business and housing site development business, etc., and the Defendant Union is the Housing Reconstruction Project Association which completed the registration of incorporation on July 30, 2003 with the authorization of establishment on January 21, 2003 in order to promote a project for the reconstruction of a Amateur (hereinafter referred to as the “instant project”) on the land of 128,498.85 square meters outside Busan Northern-gu G, Busan, and 10 lots of land.

② Around September 30, 2002, the Defendant Mutual Aid Association announced a public announcement for the selection of the contractor of the instant project. On September 30, 2002, the Plaintiff submitted to the Defendant Mutual Aid Association a project participation proposal to be selected as the contractor of the instant project. On October 19, 2002, the Defendant Mutual Aid Association was selected as the contractor of the instant project.

③ On October 8, 2003, the Plaintiff entered into a contract between the Defendant Union and the Plaintiff for construction of the instant project (hereinafter referred to as the “instant provisional contract”) under which the Plaintiff would enter into a contract with the Defendant Union for construction of the instant project.

④ At the time of the conclusion of the instant provisional contract, Defendant B, Defendant C, Defendant D, Defendant E, and Defendant F agreed with the former and present officers of the Defendant Union to jointly and severally liable with the Defendant Association and other guarantors for the repayment of all the obligations arising from the instant project at the time of the conclusion of the instant provisional contract.

⑤ At the request of the Defendant Union during the period from February 18, 2003 to May 25, 2007, the Plaintiff individually prepared an agreement on a monetary loan for consumption with respect to each money recorded in the “amount of loan” column in [Attachment 1] of the judgment below pursuant to Article 13 of the provisional contract of this case between February 18, 200 and May 25, 2007, and paid the relevant amount to the Defendant Union (hereinafter collectively referred to as the “loan”).

6) As between July 1, 2003 and December 10, 2007, the Plaintiff directly disbursed each of the money indicated in [Attachment 2] of the judgment below as the design service cost to prepare a design plan to be included in the project implementation plan to obtain the project implementation authorization for the instant project pursuant to Article 13 of the provisional contract, the survey and geological survey cost to prepare the said document, the loan interest incurred by the Defendant members to move from the National Agricultural Cooperatives Federation, and the litigation cost incurred for the transfer of state-owned and public land within the project site without compensation (hereinafter collectively referred to as the "project expense of this case").

(2) Based on the above facts, under Article 8 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 6852 of Dec. 30, 2002 and enforced July 1, 2003; hereinafter the "Urban Improvement Act"), the court below determined that, in principle, a housing redevelopment project implementer becomes a cooperative, but the association can jointly implement the housing redevelopment project with the consent of a majority of the union members, and a construction company, which is a constructor, can be selected as a contractor under Article 11 of the same Act. Thus, the construction company can only have the status of a reconstruction project contract and can not concurrently have the status of a project implementer. ② The loan and the business expenses of this case are used both as costs for the promotion of the project of this case. ③ The reasons why the loan and the business expenses of this case were provided without compensation to the defendant association can be seen as having been repaid to the plaintiff as the loan of this case under the premise that the loan and the rebuilding expenses of this case would be repaid to the plaintiff.

B. However, the lower court’s determination is difficult to accept for the following reasons.

(1) If the objective meaning of the language and text is clear in cases where a contractual party prepares in writing a certain content of a contract as a disposal document, barring any special circumstance, the existence of a declaration of intent and its content should be recognized. In particular, in cases where the interpretation differently from the objective meaning of the language and text causes a serious impact on a legal relationship between the parties, the more strict interpretation of the text and text should be construed (see Supreme Court Decision 2012Da21621, Nov. 27, 2014).

(2) According to the reasoning of the lower judgment and the record, Articles 4 and 5 of the instant provisional contract provide the Plaintiff with a business site owned by the Plaintiff as to the method of implementing the instant project. The Plaintiff supplied apartment and auxiliary facilities newly built in accordance with the agreed rate of accord and satisfaction after investing business expenses and constructing apartment facilities, and adopts a share system for the remaining construction facilities to be sold in general and appropriated as construction expenses and project expenses. ② Article 13(1) of the instant provisional contract lists the design expenses, survey expenses and geological survey expenses, interest-free relocation expenses, and various litigation expenses as the items to be subsidized to the Defendant Cooperative without compensation. Article 13(5) of the instant provisional contract provides that the Plaintiff may not impose additional contributions on the Plaintiff even if the additional business expenses under paragraph (1) of the same Article have occurred. ③ Article 13(6) of the instant provisional contract provides that the Plaintiff may individually use the loan expenses under the name of the Plaintiff association, among the business expenses that the Plaintiff received without compensation, and that the Plaintiff is not able to use the loan expenses in the name of the Plaintiff association.

Examining the above circumstances in light of the legal principles as seen earlier, deeming that the instant business expense does not mean that the Plaintiff agreed to lend it to the Defendant Union, unlike the instant loan, accords with the objective meaning of the text of the instant provisional contract. The circumstances cited by the lower court are difficult to deem that the objective meaning of the language and text stated in the instant provisional contract is a special circumstance to be differently interpreted.

(3) Nevertheless, the court below decided that the Plaintiff entered into a monetary loan agreement with the Defendant union on the instant business expenses and paid them accordingly, and ordered the Defendant union to return them to the Plaintiff. In so doing, the court below erred by failing to exhaust all necessary deliberations or by misapprehending the legal principles on the interpretation of the disposition document, which affected the conclusion of the judgment.

3. As to the assertion on the resolution of the general meeting of the association members on the instant provisional contract

A. Article 24(3)2 of the Urban Improvement Act provides that “the lending of funds, the method and interest rate thereof, and the method of repayment shall undergo the resolution of a general meeting.” Article 85 subparag. 5 provides that the executives of an association who voluntarily promote the projects under the subparagraphs of Article 24(3) shall be subject to criminal punishment without the resolution of a general meeting under Article 24. The purport of Article 24(3) of the Urban Improvement Act is to ensure that matters that directly affect the rights and obligations of the association members can be reflected in the intent of the association members. In light of the purport of the provision, where a reconstruction association established under the Urban Improvement Act enters into a contract of borrowing funds without the resolution of a general meeting of the association members (see, e.g., Supreme Court Decision 2010Da105112, Apr. 28, 201). Meanwhile, Article 25(2) of the Urban Improvement Act provides that “the board of representatives’ meeting shall have the authority to obtain the authority of a general meeting, other than the matters to be resolved determined by the general meeting.”

B. As to the defendants' assertion that there is no resolution of the general meeting of the defendant association with respect to the loan of this case, and that the loan of this case has no validity, the court below rejected the above assertion on the grounds that the agreement for subsidization of business expenses of the provisional contract of this case is reasonable to interpret that it actually has the meaning of lending to the defendant association. In addition, as long as there was a resolution of the general meeting of the defendant association with respect to the provisional contract of this case including business expenses and loans, the defendant association has made a legitimate resolution with respect to the borrowing of loan including the business expenses of this case from the plaintiff.

C. However, according to the records, the defendants could have argued that there was no resolution of the general meeting of the association members with respect to the instant provisional contract. According to the above legal principles, if the defendant union did not enter into an agreement to borrow money from the plaintiff and undergo a resolution of the general meeting of the association members, such agreement is null and void, and since the board of representatives cannot act on behalf of the general meeting of the association members, it is very important matters to determine the propriety of the instant claim. Nevertheless, the court below rejected the defendants' assertion on the ground that there was a resolution of the general meeting of the defendant association with respect to the instant provisional contract without disclosing any evidence or evidence, even though examining the reasoning or record of the judgment below, it is difficult to find the grounds recognized as above.

D. Therefore, the lower court should have sufficiently deliberated on whether there was a resolution by the general meeting of the members of the Defendant Union regarding the instant provisional contract and found the grounds for the Defendants’ above assertion. However, the lower court determined that there was a resolution by the general meeting of the Defendant Union concerning the instant provisional contract without any basis, but rejected the said assertion. In so doing, the lower court erred by failing to exhaust all necessary deliberations, exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or failing to meet the reasons, thereby adversely

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part of the judgment below against the Defendants is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-hoon

Justices Kim Jae-tae

Chief Justice Cho Jae-hee

Justices Park Sang-ok