2017 Gohap 50396 Services Costs

Co., Ltd. and C&C

A Regional Housing Association

November 2, 2017

November 23, 2017

1. The plaintiff's claim is dismissed.

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

The defendant shall pay to the plaintiff 280,000,000 won with 15% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. On September 201, the Defendant (hereinafter “B workplace housing association”) entered into an administrative service contract for the rearrangement project, which delegates overall tasks, such as consultation on cooperative operation and business, feasibility review, establishment review, selection of a contractor, approval of a project, dissolution, liquidation, etc., with the Jinnadi (hereinafter “JD”) in order to implement a housing construction project that satise apartment and auxiliary facilities, neighborhood living facilities, etc. of the Jinna-si, Changwon-si (hereinafter “Jinnadi”), around September 201.

B. On February 8, 2013, the Defendant terminated a service contract with Jiman-si. On April 23, 2013, the Defendant entered into a “PM service contract,” which is similar to the Plaintiff, with the following content, after obtaining the approval of the housing construction project plan from the Chang-si, Changwon-si as a regional housing association.

Article 5 (Duties of the Plaintiff’s duties, 1. Basic (2) progress 3) - Consultation on the operation of cooperatives and duties, - Consultation on the determination of major meetings, - Consultation on the operation of cooperatives and consultation on business affairs, 2. Business Implementation PM 1) - Preparation and preparation of a list related to the application for project approval - Preparation and preparation of documents related to project approval - Support for the inspection and management of the progress of the construction works after the commencement of the construction project - Preparation of a contract agreement, support for conclusion and conclusion of a contract - Method of preparation of the contract budget and payment of the remuneration for the consultation 6. 1. Method of establishing the terms and conditions for the preparation of the overall project budget and payment of the remuneration for the consultation 1. The amount of remuneration for the basic PMF affairs in the course of the Plaintiff’s duties, 1.00,000 won for the basic service cost (2.0 million won, additional tax separate). 2. The Plaintiff’s revenue structure improvement field is determined by mutual agreement between ① air reduction, 5.

B. After the Defendant’s president D withdraws from office on October 2013, 2013, the Plaintiff’s employees E settled in the Defendant Union from November 2013 to the Defendant Union and performed the affairs such as preparation of union assembly meetings, preparation of meeting minutes, preparation of official documents, preparation of various official documents, mail, etc. (hereinafter “instant affairs”).

C. On February 13, 2014, under the supervision of the Emergency Countermeasure Committee (F) on the part of the Defendant’s president, F was selected as the president of the Defendant’s association, and thereafter, the Plaintiff and the Defendant agreed on March 21, 2014 as follows, under the terms of an agreement on the performance fee stipulated in Article 6(2) of the above PMF service agreement, and written annexed agreements.

The plaintiff and the defendant, with respect to the reduction of the project cost under Paragraph 2, have prevented the increase of the project cost by exerting negotiating power through deliberation on orders for new construction after the termination of the contract for construction by the plaintiff. At the defendant's request, the plaintiff's prior services (administrative support service: employee's work, adjustment of accounts, and selection of substitute contractor) are recognized mutually. The agreed plaintiff and the defendant with respect to Paragraph 3, PM service cost amounting to approximately 2.8 billion won which is 12.5 billion won of the total project cost reduced, but the performance fee to be received under Paragraph 2 above shall not be less than 2.5 billion won of the funds to be paid to the plaintiff for the smooth implementation of the partnership's project, but it shall not be less than 2.5 billion won of the funds to be paid to the plaintiff by additional 70 billion won of the funds to be paid to the plaintiff within 1.5 billion won of the funds to be paid to the plaintiff for the execution of the project under the special agreement on April 25, 2013.

D. Even after the above agreement was reached, the Plaintiff’s employees, upon the Defendant’s request, were permanently stationed in the Defendant Cooperative and carried out work until June 30, 2016.

[Reasons for Recognition] Facts without a dispute, Gap 1, 15 through 22 (including a piece of paper numbers; hereinafter the same shall apply), Eul 1, 2, and 4, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

1) On October 2013, when the head of the Defendant’s partnership D resigns as at the end of the year, and the administrative affairs of the partnership were removed as G as a person in charge of the administrative affairs of the partnership were removed, and there was a vacancy in the administrative affairs of the partnership, F, the Chairperson of the Emergency Measures at the time, proposed that the Plaintiff dispatch the staff to the Plaintiff to take charge of the administrative affairs. Accordingly, the Plaintiff dispatched the Plaintiff’s staff from around November 201, 2013 to provide administrative support, separate from the affairs of the PM service agreement

2) The Plaintiff and the Defendant, through the annexed agreement on March 21, 2014, agreed to determine the Plaintiff’s cost of providing administrative support services for four months from November 2013 to February 2014 as KRW 40 million per month, different from the cost of the PM service service contract, and to substitute the payment of KRW 40 million in the administrative support service cost by the method of Article 4 of the annexed agreement. In short, an implied agreement was concluded between the Plaintiff and the Defendant, which stipulates the cost of providing administrative support services as KRW 10 million per month even after the conclusion of the annexed agreement.

3) Thereafter, the Plaintiff is obligated to pay 280,000,000 won to the Plaintiff for administrative support services during the period from March 2014 to June 2016, as the Plaintiff was permanently stationed in the Defendant Union and performed administrative support services by the Defendant.

B. Defendant’s assertion

1) G, which performed the administrative work of a union, had the Plaintiff stay and work at the Defendant Association as an employee of Ji-Gu, who had performed the duties of PM service prior to the conclusion of the PM service contract, and the Plaintiff succeeded to the labor relationship of G and continued to work at the Defendant Association on April 25, 2013. However, when the Plaintiff and the Defendant entered into the PM service contract with the Plaintiff and the Defendant, the Plaintiff succeeded to the labor relationship of G and continued to work at the Defendant Association. However, around November 2013, the Plaintiff, upon the resignation of G with the former president, dispatched E, an employee belonging to the Plaintiff, was dispatched to the former president, and the duties, including the employment of the dispatched employee, are continued after the conclusion of the Plaintiff’s PM service contract, and is not an administrative support that can separately

2) At the time of formulating the annexed agreement between the Plaintiff and the Defendant on March 21, 2014, the Defendant recognized the fact that the Plaintiff contributed to the Defendant’s business at the time of the emergency countermeasures conference, and gave rise to the increase in the amount of the cost of PM services. In order to establish a formal basis for calculating the amount of the Plaintiff’s additional incentives and the cost of settlement of the cost of administrative support services, among which the cost of administrative support services is KRW 10 million was arbitrarily calculated for the increase in the cost of PM services without any specific basis. Accordingly, it cannot be deemed that there was an agreement to set the cost of administrative support services at KRW 10 million per month.

3. Determination

A. According to the evidence No. 10, the plaintiff asserted that the administrative support services for a period of four months up to February 6, 2014 exceeds the scope of the PM service contract, and sent an official document demanding the defendant to separately handle the service cost of 40 million won. Accordingly, on March 21, 2014, the supplementary agreement calculated KRW 40 million with the cost of advance settlement of the administrative support services for four months at the request of the defendant, and the fact that the plaintiff, at the request of the defendant, had an employee stationed in the defendant union and performed his/her duties even thereafter.

B. However, in full view of the following circumstances recognized by the purport of each of the statements and arguments set forth in Gap evidence Nos. 3, 7, 10 and Eul evidence Nos. 1 through 5, it is insufficient to acknowledge that the above facts of recognition alone was an agreement between the plaintiff and the defendant to perform the administrative support duties separately from the PM business service contract and to pay the 10 million won per month as the service cost, and the plaintiff's assertion is without merit.

1) The letter of PMF service contract clearly distinguishes the Plaintiff’s business affairs, such as preparing a list related to the application for approval of the business, preparing documents for approval of the business, preparing a contract, preparing a total project budget, etc., including the Defendant’s documents, etc., from which the content directly produced by the Plaintiff is included as the Plaintiff’s business, and also includes the Plaintiff’s business affairs, such as supporting the conclusion of a contract, supporting the temporary establishment of an association, holding of an ordinary general meeting, etc., and supporting the Plaintiff. Therefore, it is difficult to clearly distinguish the Plaintiff’s business affairs such as preparing the general meeting, sending the books of general meeting, and preparing various minutes

2) According to the letter of answer prepared by the Plaintiff’s former employee E who actually performed the Plaintiff’s duties under a contract between the Plaintiff and the Defendant, E also expresses its specific duties as administrative support duties, but expresses its specific duties as “PM service duties, such as granting authorization, granting permission, conducting construction site management, and requesting and enforcing withdrawals from trust companies,” and there is no fact that there is no separate duties other than PM service duties, and therefore, it does not separate the original duties under the administrative support and PM service contract itself.

3) As seen earlier, the Defendant’s president D resigned on October 2013, and E, the Plaintiff’s employees, from around November 201, 2013, performed the instant work. The Defendant’s new president F was elected on February 13, 2014. On February 6, 2014, the Plaintiff: (a) demanded the Defendant to provide the Defendant with services for the period of four months specified “ended by February 6, 2014”; (b) drafted a supplementary agreement on March 21, 2014; (c) the period from November 2013 to February 2, 2014, when the Plaintiff was settled as expenses for administrative support, is a special period consistent with the Defendant’s association’s absence; (d) the period from November 2013 to February 2, 2014, for which the Plaintiff was settled as expenses for administrative support;

② On or after March 21, 2014, the Plaintiff and the Defendant drafted the attached agreement, which was the one in which E continued to perform the instant work, and was not the subject of settlement for the period from the fourth month to the time of the preparation of the attached agreement. In addition to the details of the administrative support or the payment of the cost of the services, it is not verified that the Plaintiff calculated the administrative support cost of KRW 10,000,000 per month, in addition to the details of the payment of the employee benefits of KRW 3 million to the amount of KRW 4,000,000 per month. The Plaintiff did not request the Defendant to pay the payment of the cost of the services under the PM service agreement for a considerable period of time after October 5, 2016, the Plaintiff did not request the Defendant to pay the cost of the services under the PM service agreement for a separate period of KRW 10,000,000 per month until the date of providing the public notice for the administrative support cost of KRW 10,000,000 per month.

4) In addition, in light of Article 3 of the Agreement annexed to the Agreement on March 21, 2014, "the total amount of the PM service cost is determined as one billion won and there is no additional incentive thereafter." The special agreement provides that the amount remaining after the reduction of the project cost should be paid through the reduction of the project cost pursuant to Articles 4 and 6. If the total amount of the project cost is in excess of the total budget amount, the agreement not to raise an objection against the payment is reached, and the minutes of the Steering Committee on March 27, 2014 also stated that the Plaintiff determined the amount of the final one billion won including the administrative work cost, and the subsequent incentive was not applied. In light of the above, the Plaintiff and the Defendant agreed to the effect that there is no room for additional service cost to occur through the agreement annexed to the agreement on March 21, 2014, the Plaintiff and the Plaintiff agreed to the effect that the Plaintiff would have determined the total amount to be paid by the Plaintiff through the reduction of the project cost and the remaining amount by the Plaintiff.

4. Conclusion

The plaintiff's claim is dismissed for lack of reason.

Judges Kim Jong-chul

Judge Shin Sung-hoon

Judges Gangnam-gu