2018Gaz. 209786 Doz. Invalidity of Doz.

1. ○○;

Daegu

2. Lighting ○; and

Daegu

3. △△△.

Daegu

4. Category ○○; and

Daegu

5. ○○○.

Daegu

6. Yellow dust0;

Gyeongsan-si

Plaintiffs’ attorney-at-law visit date

1. A house reconstruction and improvement project association;

Daegu

Representative Head of the partnership ○○

2. Voluntary ○○.

Daegu

[Defendant-Appellant] Plaintiff 1

[Judgment of the court below]

June 5, 2020

July 10, 2020

1. The Defendant jointly pays 13,058,761 won to ○○○○, Plaintiff 13,428,761 won, Plaintiff 13,428, and Plaintiff △△○○○○○, Plaintiff 13,058,761 won, Plaintiff 21,234,761 won, and 21,234,761 won to Plaintiff ○○○○, and the amount calculated at the rate of 12% per annum from January 1, 2019 to July 10, 2020, and from the following day to the day of full payment.

2. The Plaintiff’s claim against the Defendants and the remainder of the Plaintiff’s claim against the Defendants of this case, this case’s △△△△, △△△△, ○○, ○○, and yellow ○○, all of which are dismissed.

3. Of the litigation costs, 3/4 of the part arising between the Plaintiff’s ○○, △△△△, △△△, ○○, △○, and △○ and the Defendants are assessed against the said Plaintiffs, and the remainder is assessed against the Defendants, and the part arising between the Plaintiff’s ○ and the Defendants is assessed against the Plaintiff ○○.

4. Paragraph (1) may be provisionally executed.

Defendant 1) 50,000,000 each for the Plaintiff and the copies of the complaint of this case to the Plaintiff

The amount shall be paid at the rate of 12% per annum from the day following the month to the day of full payment.

1. Basic facts

(a) The status of the parties;

The defendant A Housing Reconstruction Project Association (hereinafter referred to as the "Defendant Association") is a reconstruction project association established for the purpose of implementing the housing reconstruction improvement project (hereinafter referred to as the "project of this case") with the whole building zone of Jung-gu, Daegu as the rearrangement project zone, and the defendant YO is the head of the defendant association, and the plaintiff is a member of the defendant association or a person who acquires the status of the purchaser from the members of the plaintiff association.

B. Establishment of the defendant association and the progress of its business

After obtaining authorization for the establishment of the head of the Gu among the Daegu Metropolitan City on March 9, 2005, the defendant association obtained authorization for the establishment of the head of the Gu on September 7, 2005 and the authorization for the management and disposal on April 16, 2007 regarding the instant project, but obtained authorization for the implementation of the project after changing the scale of the collective housing, the number of households by house type, the period of implementation of the project, etc. on June 10, 2015. The defendant association held a temporary general meeting on October 31, 2015 (hereinafter referred to as the "special meeting of this case") and decided to revise the management and disposal plan (hereinafter referred to as the "management disposition plan of this case"), and the head of the Daegu Metropolitan City among the Daegu Metropolitan City approved the above plan on November 27, 2015 and announced it on November 30, 2015. The contents of the management disposition plan of this case are as follows.

Article 9 [Standards for Sale of Building Facilities] (Preparation of Building Facilities) After authorization of a plan for management and disposal thereof is finalized by Dong and lake lot.Article 10 [Standards for Sale of Building Facilities] The apartment units to be sold to the members of the members of the standards for sale of apartment units shall be given priority to general sale according to the following standards: c.1. The apartment units shall be sold to the members of the association, and shall be supplied to the same number of persons who have filed an application for sale (sale). 2. Where the previous housing units are owned jointly with two or more persons, only one representative reported to the association shall be deemed to be the maximum number of persons, and only one house shall be supplied to the members of the association. 3. 1. The remaining apartment units shall not be supplied to the members of the association as much as the number of houses owned by the association and may be supplied to the members of the association in the order of sale (sale) as the standard for sale of housing units and the value of the remaining housing units to be supplied in the order of sale under this Ordinance.

D. On December 30, 2015, after the special meeting of the instant case, the Defendant Union concluded a sales contract with the Defendant Union on the apartment lots, which was allocated to the members of the instant association in accordance with the result of the said / unit drawing (hereinafter referred to as “instant unit drawing”) from January 4, 2016. After that, the Defendant Union concluded a general sales contract from January 25, 2016 to February 17, 2016 with the Plaintiff’s members, including the Plaintiff, for three (3) days from January 25, 2016.

(e) Completion and occupancy of the apartment;

On August 24, 2018, the Defendant Cooperative newly built the apartment houses of the 467 household units and the 1st underground floor, and the 3rd ground level, which are the 29th apartment units on the ground of Daegu Jung-gu, Daegu-gu, 2018 (hereinafter referred to as the “instant apartment units”) and received authorization for the completion of the construction. On December 10, 2018, the notification for the transfer of the instant project was made.

[Ground for recognition] Unsatisfy, Gap evidence Nos. 1, 2, 4, 9, 13 (including each number; hereinafter the same shall apply), Eul evidence Nos. 1 through 7, the purport of the whole pleadings, and the purport of the whole pleadings

2. The parties' arguments

A. The plaintiff

As the representative of the Defendant Union, which is the project executor of the instant project, should draw lots only for the portion of the instant project, as set forth in the instant management and disposition plan, but against this, the Defendant Union conducted a draw lot for the entire households of the pertinent ordinary grade, and allocated it to the Plaintiff’s general sales section. Although the Defendant Union has a duty to pay considerable attention and supervision to prevent the Defendant’s violation, it was erroneous for the Defendant Union to neglect this duty. Accordingly, the Defendants are jointly and severally liable to pay damages to the Plaintiffs each of the aforementioned illegal acts, as compensation for damages.

B. Defendant 1) The portion of the preferential allotment among the members indicated in the instant separately annexed data is merely indicated in a manner that makes it easy to understand the number of members of the association applied for each grade, and does not specify the household that should be allocated preferentially to the members of the association in the instant apartment sale. Even if a specific apartment sale was made, it may be changed according to the result of consultation with the construction company, rather than the fixed even if it was made. 2) The Plaintiff entered into a sales contract with the Defendant association with the result of the instant separate annexed data without any objection, and then seeking damages against the Defendants later is contrary to the principle of good faith. 3) Plaintiff ○○○ concluded the sales contract in accordance with the result of the instant unit and unit lottery, and then did not have the damage caused by the instant unit and unit lottery.

3. Determination

A. 1) The illegality of the instant dong and heading lottery in the instant case

In full view of the above facts, the members of the defendant association have the right to claim the sale of housing units and other housing units under the management and disposal plan, and the members of the association have the right to claim the sale of housing units under this case. Notwithstanding the resolution on the management and disposal plan of this case, it is unlawful that Defendant 00 determined the allotment of housing units and units to the members of the association, including the general allotment of housing units and units, was deprived of the members of the right to allocate housing units and units, and it is difficult to interpret that the above provision of Article 10 (Criteria for Sale of Building Facilities) of the management and disposal plan of this case was to be applied to the members of the association in consultation with the general allotment of housing units and units, but it is difficult for the members of the association, other than the above allotment of housing units and units, to apply to the members of the association for the allotment of housing units and units prior to the completion of the allotment of housing units and units.

C) Even if the Defendant Union informed the purport that the “section of preferential allotment of cooperative members” stated in the instant separate annexed data at the time of the resolution of the instant management and disposition plan, but could be modified according to the result of subsequent consultation with the contractor, it cannot be deemed that the cooperative members passed a resolution to allocate the unit unit to the entire household units of the instant apartment complex solely on the same circumstance. The instant management and disposition plan may be corrected or modified without re-calling and re-public inspection of the general meeting, but it cannot be deemed that the determination of preferential allotment of cooperative members and preferential allotment of the unit unit members of the sales household constitutes the instant case (Article 18(1)) by the resolution of the board of directors or the board of representatives. Accordingly, the Defendant Union or the Defendant YOOO, as the result of consultation with the contractor, failed to establish a re-issuance (revision) proposal as a result of consultation with the contractor and undergo a resolution on the preferential allotment of unit units and household units of each of the instant apartment units in accordance with the instant management and disposition plan.

D) The Defendant association attempted to set the portion of preferential allotment among the members of the association through consultation with the construction project and allocate it to the housing type as much as possible, but it did not have to collect only the interests of the members of the association in the course of consultation with the construction project, which is an important party to the reconstruction project of this case. However, even if the Defendants’ assertion is true, as Defendant 00, it is necessary to allocate the members of the association with preferential allotment in accordance with the instant management disposition plan, to change the portion of preferential allotment of the association members, to remove the portion of preferential allotment of the association members, to remove the portion of preferential allotment of the association members, to remove the portion of preferential allotment of the association members, and to revise the contents thereof, and to implement the affairs by submitting it to the new management disposition plan (amended) by the resolution of the general meeting, and to arbitrarily exclude or change the portion of preferential allotment of the association members.

E) On May 31, 2018, at the ordinary meeting of the Defendant Union held on May 31, 2018 after the completion of the instant club and heading lot, the agenda was “cases of the decision on the compensation scheme for low-rises.” As to this, ○○○○ was “in the case of the members of the association at least three floors by lot in the case of the members of the association at least once, I would like to know exactly from why the first floor was filled out.” The issue of the low-rises of the members of the association at this time was “I would like to know exactly from why the first floor was filled out, and I would like to point out that the 101 Dong will be sold to the general public and that 102 Dong will be sold to the general public, and that the 103 Dong will not be sold to the members of the association, regardless of the entire number of the members, and that the number of the members of the association will not be included in the 1st floor of this case.”

F) Defendant asserted that the entire apartment units (excluding six generation units at the place where the allotment is to be made) without fixing the portion of the preferential allotment due to the lack of consultation with the contractor. However, in the case of the 104 Dong-type A-type, 37 households among the 40 households, among the preferential allotment of the cooperative members, 104 Dong-type, 37 households among the 105 Dong-type, the entire 84m multi-household-type, and 36 households in the case of the 106 Dong-type, 106 Dong-type, 84m multi-household-type, while in the case of the 106 Dong-type multi-household-type, the number of households which are less than 10 households, most of which are less than 10 households, are allocated without distinguishing the portion of the cooperative members from the portion of the preferential allotment of the cooperative members, and if the number of the cooperative members in this case is calculated by adding the number of households in the same general unit to the number of households subject to the allotment.

The fact that members including the Plaintiff and the Plaintiff entered into a contract for the sale of apartment units allocated as a result of the instant purchase and sale by lots is as seen earlier, and there is no evidence to deem that the Plaintiffs were taking legal measures, such as provisional disposition, so that the Defendant Union would not sell the apartment units in general. However, the following circumstances, i.e., the Defendants informed the members of the contract for the purchase and sale by lots on January 14, 2016, and that the Defendants could not be classified as cash liquidation in light of the pertinent laws and regulations and the management plan, even if the Defendants were to have failed to take any action against the members of the Plaintiff Union on the following grounds: (a) even if the Defendants were to have been given a waiver of the right to purchase and sale by lots, it was difficult for the members of the Plaintiff Association to find that there was no possibility that the Defendants would not have been given the right to purchase and sell the apartment units by lots during the period of time; and (b) even if the Defendants were to have been given the right to purchase and sell the housing units by lots, the Plaintiff Association did not have any other reasons.

The claim for damages due to the drawing of the Dong and lake of this case has the nature of the claim for damages due to a tort. However, in the case where the status as a contracting party is transferred to a third party by a transfer of contractual status, the claim for damages due to an illegal act is only transferred only to the relationship of rights premised on the contractual status, and it is naturally transferred to a third party without any separate procedure of assignment of claims

Therefore, it cannot be deemed that the assignee is entitled to exercise the right to claim damages as a matter of course solely on the ground that the status of the union member holding the right to claim damages arising from the drawing lot of the same case was transferred to a third party. However, it cannot be deemed that the transferee has the right to claim damages as a matter of course solely on the ground that he/she acquired the status of the union member holding the right to claim damages arising from the drawing lot of the same case. However, there is special circumstance, such as the fact that the transferee was transferred the status of the sales contract due to the purchase of the right to claim damages arising from the drawing lot of

I would like to say that the assignee can exercise his claim for damages.

Although the Defendant Association concluded a sales contract with 00 units of apartment 106 unit * 106 unit * unit 106 unit * unit 2,000, Plaintiff ○○○○ succeeded to the rights and obligations under the sales contract with 106 unit 106 unit 1 from ○○ on December 9, 2016, and Plaintiff ○○○ succeeded to the rights and obligations under the sales contract with ○○○ on January 11, 2017, and Plaintiff ○○ became the buyer of the above household. Meanwhile, there is no evidence to acknowledge that Plaintiff ○○○ transferred the status under the sales contract with ○○ unit 10 unit 1,00 unit 2 from ○ or ○○ unit 2,000 unit 1,00 unit 2,00 unit 2,00 unit 1,000 unit 1,000 unit 1,000 unit 2,000 unit 2,000.

4) Sub-decisions

Therefore, Defendant △○○ is liable for compensating the Plaintiffs, this case’s △△△△△, △△△△, ○○, and △○○○○, for damages caused by illegal draw of the Dong and lake of this case. Since there is no evidence to acknowledge that the Defendant Union exercised considerable care and supervision to prevent the Defendant’s violation, the Defendant Union has a duty to compensate the damages suffered by the said Plaintiffs jointly with the Defendant △○○.

B. The base point of time for calculating the amount of damages due to the illegal act is the time point of time for calculating the amount of damages. However, if there is time interval between the time of the illegal act and the occurrence of the result, the tort is completed at the time of the occurrence of the result, i.e., the point of time for calculating the amount of damages (see, e.g., Supreme Court Decision 2005Da45605, Jun. 15, 2007). However, as seen above, the drawing of the same case is illegal and invalid by allocating the households of the general apartment unit that are not included in the preferential allotment section of the members stipulated in the management and disposal plan to the plaintiffs, and thus, it is reasonable to conclude and publicly notify the management and disposal plan of this case as to whether the above apartment unit was transferred to the defendant association and to seek new drawing and allotment of the apartment unit of this case. However, it is reasonable for the defendants association to seek for the implementation of the above apartment unit of this case to be transferred to 201.

2) The burden of proof of the amount of damages is against the Plaintiffs, who are the victims claiming damages (see, e.g., Supreme Court Decision 2010Da18850, Jul. 28, 201). However, in cases where, even though the existence of property damage in a lawsuit claiming damages due to a tort is recognized, it is difficult to prove the specific amount of damage due to the nature of the case, where it is difficult to prove the specific amount of damage due to the nature of the case, the court shall have the relationship between the parties revealed by the outcome of the examination of evidence and the purport of the entire pleading, and

The amount of damages may be determined by comprehensively taking into account all indirect facts related to developments, the nature of the damages, and various circumstances after the occurrence of the damages (see, e.g., Supreme Court Decision 2002Da6951, 6968, Jun. 24, 2004).

B) Considering the fact that the members, including the Plaintiff ○○○, this △△△△△, ○○, ○○, and Y○○, could have allocated 156 households designated as the preferential allotment section among the members of the instant management disposition plan from the management disposition plan of this case, and that the sale price varies depending on their respective grades, directions, and the number of floors, the damages suffered by the said Plaintiffs due to the instant / lake lottery, which were unlawful by the Defendants, should be viewed as the difference between the average expected profit calculated by considering the market price and the sale price of each apartment that the said Plaintiffs acquired, from the average expected profit calculated by taking into account the market price and the sale price of each apartment that the said Plaintiffs acquired (see, e.g., Supreme Court Decision 2005Da45605, Jun. 15, 2007).

C) According to the above evidence, the number of households by Dong, square and structural unit of the apartment of this case, and the number of households allocated to the association members and the general allotment households among them are as follows.

The members of the instant apartment complex may apply for the application for the purchase of the housing units by selecting only a square (84 square meters or 59 square meters) and an internal structure (in the case of Class A or B, the last place of the apartment, the last place of the apartment, the type A, the type 3, and the type 4; hereinafter the same shall apply). No individual Dong could be designated. The Plaintiff ○○○, the head of this △△△, the head of this ○○, the ○○○○, and the Yellow ○○○○, and the Plaintiff ○○, the Plaintiff ○○, the number of households available for each building selected by the said Plaintiffs, are as listed below.

According to the respective statements and arguments of Gap 2, 16-1, 00, 2, 10-1, 2, 30-1, 80-1, 30-1, 80-1, 70-1, 80-1, 70-1, 80-1, 70-1, 80-1, 70-1, 80-1, 80-2, 70-1, 70-1, 70-1, 80-1, 70-1, 70-1, 70-1, 70-1, 70-1, 70-1, 70-2, 80-1, 70-1, 70-1, 70-2, 80-1, 70-1, 70-1, 70-2, 9, 70-1, 86-1, 1,

Therefore, Defendant jointly and severally liable to compensate ○○ for damages caused by the illegal drawing of 13,058,761 won, Plaintiff 13,428,761 won, Plaintiff 13,428 won, Plaintiff 13,428 won, Plaintiff 13,761 won, Plaintiff 00 for 13,058,761 won, and 21,234,761 won from January 1, 2019 to 10, and each of them is deemed reasonable to dispute over the existence or scope of Defendant 1’s obligation to compensate ○○ for damages, and it is reasonable to pay damages at the rate of 12% per annum from the next day to the next day of the payment (see, e.g., Supreme Court Decision 2010Da78168, Jul. 10, 202).

4. Conclusion

The respective claims against the Defendants by this OO, this △△△△, 00, heads of 00, and yellow ○○○ on the Defendants are justified within the scope of the above recognition. The respective claims against the Defendants by the above Plaintiffs and the claims against the Defendants by Plaintiff 1 and 00 against the Defendants by Plaintiff 1 were dismissed in its entirety due to the lack of reasonable grounds. It is so decided as per Disposition.

Judges Yang Sang-hoon

Judges Lee Jae-in

Judges Lee Woo-soon

1) Upon filing an application for modification of the purport of the claim on October 31, 2018, the Plaintiff and the Plaintiff were primarily conducted by the Defendant Union on December 30, 2015.

In order to seek confirmation of invalidity of the drawing of lots for the same and several number of union members, the Defendants are jointly and severally entitled to 50,000,000 won for each of the plaintiffs.

The claim was made to pay the delayed damages, but the claim was withdrawn through the application for amendment of the claim made on January 10, 2020.

On the other hand, the defendant sought that the plaintiff shall pay 50,000,000 won and damages for delay, respectively, to the plaintiff. The reasons why the plaintiff changed the claim and the reasons why the claim was changed.

'The reasons for the claim that the defendant promised the payment of damages of KRW 50,000,00 for each household of the Ministry of Strategy and Finance that the defendant did not wait at the drawing of the Dong and lake.'

In light of the above, the purport of the plaintiffs' respective claims of this case is to seek payment of KRW 50,000,000 to the plaintiffs jointly and severally.

Clearly, correction is made as above.

2) 35 households with the exception of 201, 202, 301, 302, 401 among 103 Dong 40 households, excluding heading

3) 101 Dong 1903

4) Of 104 Dong 43 households with the exception of 102, 201,202, 40 households with the exception of 201,202,301 out of 105 Dong 40 households with the exception of 201,202,301, 106 Dong39 households

102, 201, 202 Other 36 households

5) 105 Dong 1603, 1604, 1703, 1704, 1706 Dong 1904, 203, 2004

6) The Defendant Cooperative concluded a sales contract with the Plaintiff, Lee ○-○, and the △△△ as a joint purchaser with respect to the heading 106 Dong*, but the Plaintiff Lee ○-○ concluded a sales contract with the △△△ as a joint purchaser.

5. The Plaintiff succeeded to the rights and obligations under the sales contract of 106 Dong-dong* from 19.19

7) The Defendant Cooperative concluded a sales contract with OOOO in 106 Dong 106 * Hoho, but ○○ entered into a sales contract with OOO, on December 9, 2016, ○○○ and Plaintiff ○○○.

On January 11, 2017, he succeeded to the rights and obligations under the sale contract of No. 106 *, from ○○○ on 106.

8) In principle, the average expected profit and actual profit should be calculated on the basis of the market value. However, in the case of the instant apartment, the market value at the time of damage cannot be known.

the disclosure price shall be calculated on the basis of the standard.