208Gaz. 13886 Agreement Payments

P (60 years old, South)

Attorney Cho Young-chul, Counsel for the defendant-appellant

1. XX-3 Housing Redevelopment Project Cooperatives;

Representative Association President D

2. D (37 years old, South Korea)

[Defendant-Appellant] Plaintiff 1

Attorney Lee Jae-chul

November 27, 2008

January 8, 2009

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

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

Defendant XX3 Housing Redevelopment and Improvement Project Association (hereinafter referred to as the “Defendant Cooperative”) shall pay to the Plaintiff, as preliminary, 232,941,450 won with 5% per annum from the day following the delivery of a copy of the complaint to the day of the sentence of full payment, and 20% per annum from the next day to the day of full payment.

1. Facts of recognition;

A. The Defendant Cooperative is the Housing Redevelopment Improvement Project Association established on March 14, 2005 (the head of the Dong-gu Busan Metropolitan City on June 28, 2006) and the head of the Defendant Partnership is the head of the Defendant Partnership. Since around 1992, the Plaintiff owned the Busan Dong-dong-dong Y 320 square meters and its ground-based 1st and 6th above ground-ground 20 square meters in the project implementation district of this case (hereinafter “the real estate of this case”) and was operating a private teaching institute in the area of this case while the project of this case was promoted on May 2006, the Plaintiff was elected as the general manager of the Emergency Countermeasure Committee established to oppose the project of this case (hereinafter “Non-Subrogation”).

B. The pertinent provisions of the articles of incorporation of the Defendant Union are as follows.

Article 41 (Application for Sale, etc.)

(4) The association shall liquidate buildings and other rights in cash within 150 days from the date on which any member falls under any of the following subparagraphs. The amount shall be calculated by calculating the arithmetic mean of the values appraised by at least two appraisal business entities recommended by the head of the Gu:

1. An applicant for parcelling-out;

2. A person who has withdrawn the application for parcelling-out. An appraisal corporation of 00 and UU appraisal corporation of 00 have completed a field investigation on real estate in the instant project area from June 29, 2006 to August 2006 and conducted an appraisal based on this. As a result, the appraised value of the instant real estate has been KRW 1,702,758,550, and the Defendant Union notified the Plaintiff of the results of the said appraisal around September 20, 2006.

D. On September 9, 2006, the Plaintiff filed an application for the sale of apartment 53 square meters with the Defendant Cooperative, but withdrawn the application on December 22, 2006. Accordingly, on December 22, 2006, the Plaintiff and the Defendant Cooperative concluded a real estate sales contract with the appraised value of KRW 1,702,758,550 for the instant real estate as the sales price, and thereafter, the Plaintiff received full payment from the Defendant Cooperative.

E. Meanwhile, as a result of the appraisal by 00 appraisal corporations and UU appraisal corporations, the Plaintiff’s business compensation amount related to the operation of the Plaintiff’s private teaching institute was assessed to KRW 64,30,000, and the Defendant Union notified the Plaintiff of the appraisal result on March 13, 2007. The Plaintiff filed an objection against the above appraisal on May 19, 2007, and as a result, adjusted the business compensation amount to KRW 66,00,000, but did not reach an agreement on the compensation amount between the Defendant Union and the Plaintiff. Accordingly, the Defendant Union filed an application for expropriation with the Busan Regional Land Expropriation Committee, and on June 9, 2008, the Plaintiff received the said compensation amount from the Defendant Union.

【Reasons for Recognition】

2. Determination;

A. Determination as to the claim against the defendant union

(1) As to the claim for agreed amount

The Plaintiff, on September 6, 2006, agreed to pay a total amount of KRW 2 billion to the Plaintiff as compensation amount for losses for the instant real estate, etc., but the Defendant Union actually paid to the Plaintiff, asserting that the amount of compensation for losses that the Plaintiff actually paid to the Plaintiff is KRW 1,767,058,550 (the purchase price of real estate + KRW 1,702,758,550 + the business compensation amount + KRW 64,300,000) and sought payment of KRW 232,941,450, which is the difference in the said amount.

According to the statement in Gap evidence No. 1, the defendant union prepared a written confirmation (hereinafter referred to as "written confirmation of this case") on September 6, 2006 that the amount of consultation, including the plaintiff's evaluation value, will be KRW 2 billion. However, according to the articles of incorporation of the defendant union, with respect to the members who have withdrawn the application for parcelling-out, cash settlement shall be made by calculating the arithmetic average of the amounts appraised by two or more appraisal business entities recommended by the head of the Gu, and the result of appraisal by 00 appraisal corporations and 00 appraisal by U.U. appraisal corporations.

The Plaintiff and the Defendant Union entered into a real estate sales contract with the purchase price of KRW 1,702,758,50 on December 22, 2006 after the Plaintiff applied for the sale of the apartment and the Plaintiff’s association’s withdrawal of the application for the sale of the apartment, with the purchase price of KRW 1,702,758,550 on the real estate of this case as a result of the above appraisal on December 2, 2006. After that, the Plaintiff was paid the total purchase price of the real estate from the Defendant Union according to the contract, and the Plaintiff applied for a ruling of expropriation of KRW 64,30,00 for the Plaintiff’s business compensation and made a ruling of expropriation of KRW 64,30,00 for the Plaintiff’s business compensation. Accordingly, according to the witness E’s testimony, if the Plaintiff did not receive the above business compensation amount from the Defendant Association’s association to the Plaintiff, the Plaintiff did not request the Plaintiff to pay the total sale price of the real estate of this case to the Plaintiff.

In addition, even if the defendant union agreed to pay a total amount of KRW 2 billion to the plaintiff as compensation for losses, as seen earlier, the sales contract of the real estate of this case was concluded separately between the plaintiff and the defendant union after the preparation of the confirmation document of this case, and accordingly, the defendant union paid the total amount of the sales price to the plaintiff. Accordingly, it can be acknowledged that the plaintiff was paid the total amount of business compensation from the defendant union without any objection. Thus, in light of the overall purport of the pleading, it is reasonable to deem that the confirmation document of this case was modified according to the above sales contract and the final acceptance ruling of this case. Thus, the plaintiff has no right to claim compensation against the defendant union based on the confirmation document of this case.

Therefore, the plaintiff's above claim against the defendant union is without merit.

(2) As to the claim for damages

The plaintiff asserts that the defendant union prepared the confirmation document of this case under the manual to deceiving the plaintiff for the purpose of having cooperation with the plaintiff in the business of this case, which constitutes a tort. Accordingly, the plaintiff suffered damages equivalent to KRW 232,941,450, thereby claiming compensation for the above damages from the defendant union (the plaintiff asserted in the complaint that the cause of the claim for damages against the defendant was non-performance of obligation, but the cause of the claim for damages was changed as above in the application for change of the purport and cause of the claim as of November 19, 2008).

On September 2006, the non-Subrogation of this case continued to engage in propaganda activities against the members of the defendant association, and the defendant D made a statement to the plaintiff around September 2006 that the value of the right would not be KRW 2 billion even if the plaintiff's real estate was placed only on the plaintiff's real estate, and thus, if the plaintiff can be held responsible for the plaintiff D, the request for a written confirmation and the fact that the written confirmation of this case was made. However, the above facts alone are insufficient to recognize that the defendant association prepared the written confirmation of this case as a means of deceiving the plaintiff, and there is no other evidence to acknowledge this differently. Thus, the plaintiff's above assertion is without merit without any further review.

B. Determination as to the claim against the conjunctive defendant D

(1) As to the claim for agreed amount

The Plaintiff asserts that Defendant D agreed to pay the Plaintiff a total of KRW 2 billion as compensation for losses through the instant confirmation document, and sought payment of KRW 232,941,450, which is the difference between the amount of KRW 2 billion and the amount of KRW 1,767,058,550, which the Plaintiff actually received from the Defendant Partnership.

It is not sufficient to recognize that Defendant D agreed to pay compensation to the Plaintiff solely with the evidence Nos. 1 and 1, and there is no other evidence to acknowledge this otherwise, the Plaintiff’s above assertion is without merit without further review.

(2) As to the claim for damages

The plaintiff asserts that the defendant D prepared the confirmation document of this case under the manual to deceiving the plaintiff with the aim of obtaining cooperation in the business of this case from the plaintiff, and that this constitutes a tort and that therefore, the damage equivalent to KRW 232,941,450 was sustained by the plaintiff, thereby seeking compensation for the above damage to the defendant.

The testimony of the witness E is insufficient to recognize that Defendant D prepared the instant confirmation document by means of the method of deceiving the Plaintiff, and there is no other evidence to acknowledge it. Thus, the Plaintiff’s above assertion is without merit without any need for further review.

3. Conclusion

Therefore, the plaintiff's claim against the defendants is without merit, and all of them are dismissed. It is so decided as per Disposition.

The presiding judge, judge, respondent

Judges Kim Jae-young

Judges Shin Jae-hwan