Whether a seller has an obligation under the good faith principle to clarify information on matters that may affect the buyer's resale profit in a real estate sales contract (negative in principle), and whether a seller's failure to notify such information constitutes deception by omission (negative in principle)

Unless there are special circumstances, such as the occurrence of the benefit of resale or the amount of the benefit of resale by a purchaser knowing that the purchaser would have been aware of the fact that the purchaser would benefit from resale and have caused the purchaser to sell it by wrong determination in a way which would not be used in light of transactional norms, it cannot be easily concluded that the purchaser would be subject to the duty under the good faith principle with regard to the initial sale to the purchaser, who is the opposing party and who is seeking the benefit of resale, and who is likely to affect the purchaser's profit of resale, including whether the purchaser was the purchaser, or whether the purchaser was the purchaser's initial sale, or whether the purchaser could have an impact on the purchaser's profit of resale, including whether the purchaser was the purchaser's resale, or not. Furthermore,

Article 110(1) of the Civil Act

Plaintiff (Attorney Lee In-bok, Counsel for plaintiff-appellant)

Defendant (Attorney Yang Ho-hee et al., Counsel for the defendant-appellant)

Gwangju High Court Decision 2009Na1909 Decided October 9, 2009

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

We examine the grounds of appeal.

1. Fact-finding and judgment of the court below

A. The lower court acknowledged the following facts.

(1) Korea General Construction Co., Ltd. (hereinafter “Korea Specialized Construction Co., Ltd.”) carried out the business of constructing and selling commercial buildings within 9 Blue Kannam Housing Site Development Project District 9 Blue (hereinafter “instant commercial buildings”). On March 27, 2007, the Defendant entered into a contract with Korea to purchase the entire commercial buildings of this case in 1,44,680,00 won between Korea and Japan with respect to the instant commercial buildings which were newly constructed on or around September 2008 with the scheduled date of sales payments set at around September 2008. The Defendant agreed to pay the remainder of KRW 48,936,00 on November 20, 2007, the first intermediate payment of KRW 288,936,000 on March 20, 2008; and the remainder of KRW 368,608,686,608.

After completing the registration of ownership preservation for the commercial buildings of this case completed on October 9, 2008, the Korean case completed the registration of ownership transfer for the whole of the commercial buildings of this case to the defendant on March 27, 2007.

(2) On April 11, 2007, when the construction work of the instant commercial building was in progress, the Plaintiff concluded a sales contract with the Defendant to purchase KRW 272,690,000 of the first floor (hereinafter “instant sales contract”). The Plaintiff agreed to pay the Defendant the down payment of KRW 54,400,000 on the date of the contract, and the Plaintiff paid KRW 81,60,000 for the first intermediate payment of KRW 81,60,000 until October 20, 2007, KRW 54,400 until March 20, 2008, and KRW 82,290,000 until March 20, 2008.

However, as the Plaintiff did not pay the first intermediate payment under the instant sales contract by the due date, on February 12, 2008, the Defendant notified the Plaintiff that the instant sales contract was cancelled due to the Plaintiff’s nonperformance of the obligation to pay the intermediate payment and the said down payment already received shall be confiscated as penalty.

(3) On August 2, 2007, the Defendant concluded a sales contract with the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 2 concluded a sales contract with the selling price of KRW 279,906,00 for the first floor of the commercial building of this case. On June 3, 2008, the Defendant concluded a sales contract with the non-party 2 and the non-party 2 with the selling price of KRW 30 million for the second floor and 202 stores among the commercial buildings of this case.

(4) According to Article 21 of the "Rules on Housing Supply", which is seen as the following (5) around September 2007, the "public notice of supply" with respect to the commercial buildings of this case reported to the chemical market of this case is Korean type and Korean Construction Corporation. On the other hand, with respect to the sale of the commercial buildings of this case, the supply price of the commercial buildings of this case was 121,652,00 won, and the supply price of the commercial buildings of this case was 121,652,00 won, and the supply price of the commercial buildings of this case among the commercial buildings of this case was 121,652,00 won, the total supply price of the commercial buildings of this case was 381,483,00 won, and the total supply price of the commercial buildings of this case was 14,686,00 won, and the sale price of the commercial buildings of this case was 124,600 won and attached to the sale sale contract of this case.

(5) Article 38(1) of the former Housing Act (amended by Act No. 8852 of Feb. 29, 2008) provides for matters to be observed in the construction and supply of housing or other welfare facilities, such as commercial buildings appurtenant thereto. Article 38(1)1 provides that “Where a project proprietor intends to recruit occupants, he/she shall obtain approval from the head of a Si/Gun/Gu (in cases of welfare facilities, referring to a report) under the conditions as prescribed by the Ordinance of the Ministry of Construction and Transportation.” Article 97 of the same Act provides that a person who constructs and supplies housing in violation of the said provision shall be punished by imprisonment for not more than two years or by a fine not exceeding 20 million won. Meanwhile, Article 21(1) of the “Rules on Housing Supply” stipulated in the delegation of the Housing Act provides that “Where a project proprietor supplies the general public with the recruitment of occupants, such as the approval of a project plan and a kindergarten for the implementation of a project plan, etc. among the welfare facilities approved pursuant to Article 16, he/she shall file a report thereon.”

On October 2009, the Mosung market filed a criminal charge on the ground that the sale of the housing before reporting the recruitment of welfare facility occupants in violation of Article 38 of the Housing Act and Article 21 of the "Rules on Housing Supply" was the act of selling the housing before reporting the recruitment of welfare facility occupants.

B. Since the instant sales contract was concluded by the Defendant’s deception as follows, the Plaintiff cancelled it on the ground of fraud and sought the return of the down payment. That is, the seller of the instant commercial building is a Korean tenant, and the Defendant resells the instant store as the first buyer of the instant commercial building, notwithstanding the fact that the Plaintiff, who was seeking profits from resale, was deceiving the Plaintiff as being the buyer of the instant commercial building, as being the buyer of the instant commercial building, and its affiliation concluded the instant sales contract with the Plaintiff.

The court below determined that the sales contract of this case was lawfully cancelled due to the Defendant's deception for the following reasons, and accepted the Plaintiff's claim. In other words, even though the first sale price of the store of this case was 121,652,00 won more than 2.2 times, the Plaintiff concluded the sales contract of this case and concluded the sales contract of this case with the Defendant 151,038,000 won more than 2.2 times more than 2.2 times, and the Defendant concluded the sales contract of this case in collusion with the Korea Housing Act for the benefit of resale, in violation of the relevant provisions of the Housing Act, and reported the supply of this case to the Plaintiff at the time of the first sale contract, as if the Defendant concealed the fact of the pre-sale contract of this case and supplied the commercial building of this case normally after it, it would be important for the Plaintiff to be aware that the first sale contract of this case was concluded with the Plaintiff as the owner of the store of this case and that the Defendant had not acquired the ownership of this case as the purchaser of this case.

2. However, we cannot agree with the judgment of the court below that the defendant did not notify the plaintiff that the store of this case was sold in lots from Korean case at the time of the sales contract of this case, and that it constitutes deception by omission.

The sales contract of real estate including commercial buildings has the nature of the sales contract.In the sales contract, the principal obligation of the seller is to transfer the complete ownership of the object of sale and its possession to the buyer so that the buyer can enjoy all profits generated from the object of sale, and it is generally contrary to the intention of the buyer's interest.

Furthermore, barring any special circumstance, such as where a buyer sells again the object of parcelling-out acquired by a buyer to a third party to obtain the proceeds of resale, and where it is possible to receive the proceeds of parcelling-out at a low price from the buyer to maximize the proceeds of resale, etc., matters to be determined and determined by the buyer by himself/herself in consideration of all the circumstances, and information on the circumstances affecting the buyer should be collected and assessed by the buyer himself/herself in principle. It is more true in view of the fact that the seller generally increases the price for the object of parcelling-out as much as possible and gains more profits than that of the seller. Therefore, barring any special circumstance such as where the buyer knowingly knew that the buyer would want to obtain the proceeds of parcelling-out and then cause the buyer to obtain the proceeds of parcelling-out by making the buyer wrong judgment by making it impossible for the seller to use the proceeds of parcelling-out in terms of transaction or by making the proceeds of the parcelling-out in a way that can not be used in terms of transaction concept, it is difficult for the seller to know whether the purchaser is the first purchaser or the proceeds of parcelling-out.

Therefore, in the instant case where the Plaintiff had been aware of the fact that the Plaintiff would have already sold the instant commercial building due to the fact that the Defendant had been aware of the fact that the Defendant acquired the entire commercial building of this case from Korean type, and did not notify the Plaintiff of the fact that it again sold the commercial building to the Plaintiff by each shop, even considering all the circumstances required by the lower court, it is difficult to view that the Defendant constituted deception by omission even if all the circumstances are considered. First of all, the fact that the Defendant’s resale marginal profit is significant is determined that the subject matter of sale could be considered the price and that the Plaintiff voluntarily consented to the sale price. Furthermore, even if it was unlawful, the act related to the “supply report” as seen above is basically unlawful, it constitutes a deception against the Plaintiff, and thus, constitutes a deception against the Plaintiff. Moreover, even if it was possible to sell the commercial building prior to the filing of the tenant recruitment report as prescribed by the Housing Act and subordinate statutes, it cannot be said that there is a basis for the obligation of the seller to notify whether the purchaser was the purchaser.

Nevertheless, the court below's determination that the sales contract of this case was lawfully revoked on the ground of fraud by recognizing the duty of disclosure under the good faith principle to the defendant is erroneous in the misunderstanding of legal principles as to deception by fraud or omission, which affected the conclusion of the judgment. The purport of appeal pointing this out

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court 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 Kim Ji-hyung (Presiding Justice)