2014Na2047021 Of claims

A

B Housing Association

Seoul Central District Court Decision 2014Gahap5081 decided October 30, 2014

May 28, 2015

June 25, 2015

1. The plaintiff's appeal is dismissed.

2. The second preliminary claims added in the trial are dismissed.

3. The costs of the lawsuit after the appeal shall be borne by the plaintiff.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 409,101,740 won and 5% per annum until October 1, 2014 from March 5, 2013, and 20% per annum from the next day to the date of full payment (the plaintiff added the second preliminary claim from the trial).

1. Facts of recognition;

A. The Defendant is a cooperative established by the Housing Act after the total sum of six tanks, such as D Housing Association or E Housing Association established in the Dongjak-gu Seoul Metropolitan Government Seoul Metropolitan Government, was dissolved, and obtained authorization for the establishment from the head of Dongjak-gu on February 2, 2007. The Plaintiff owned the Ginmanion 401 (hereinafter referred to as “the instant order”).

B. On June 18, 2007, the defendant and the executive company entered into a partnership's membership certificate, stating "the supply apartment: 32 square meters (no additional charges) and 32 square meters (one bonds) supplied by the partnership." On July 20, 2007, the defendant and the executive company entered into an agreement on the transfer of ownership (hereinafter "the agreement of this case") between the plaintiff and the five owners of Ginman's land including the plaintiff, and the main contents are as follows.

1. The transferor transfers his/her ownership to the Defendant on his/her house, and the Defendant guarantees the transferor to grant the right to move into an apartment house of 109.13 square meters (the exclusive use area of 85 square meters or less, and the former 33 square meters) located in the transferor.

2. The defendant may not claim for any other expenses (in the case of members' subscription fees, additional members' contribution, work promotion expenses) for the later apartment.

C. On June 29, 2007, on June 14, 2007, the Plaintiff completed the registration of ownership transfer based on the cause of sale and purchase with respect to the instant Manyion, and on April 7, 2012, H apartment units 108 Dong 1504 (hereinafter “the instant apartment”).

D. Meanwhile, the Plaintiff’s wife purchased a house of J, J, 4(1) (1) (15.8 square meters for exclusive use) in Dongjak-gu Seoul Metropolitan Government, and completed the registration of ownership transfer on June 14, 2007. On September 6, 2012, the head of Dongjak-gu owns a house exceeding 60 square meters by the Plaintiff’s wife I to the Defendant on the ground that on September 6, 2012, the Plaintiff’s wife owned a house exceeding 60 square meters.

Pursuant to Article 38(1) of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 2443, hereinafter referred to as “former Enforcement Decree of the Housing Act”), the Plaintiff notified the Plaintiff that he is disqualified for membership. On the same day, the Defendant notified the Plaintiff that the Plaintiff was disqualified for membership.

E. After November 14, 2012, the Defendant completed the registration of ownership preservation on the instant apartment newly built on November 14, 201, and completed the registration of ownership transfer in the name of K on March 28, 2013 after selling the said apartment to K for KRW 680,00,000.

F. The rules of the defendant association regarding the instant case are as follows:

Article 12 (Expulsion of Disqualification from Membership)

(2) A person who is not qualified as a cooperative member under the relevant Acts and subordinate statutes and this Code shall be automatically disqualified.

(4) A person who loses the status of a union member due to withdrawal, loss of a union member qualification, expulsion, etc. shall be paid to the union member within 30 days from the date on which the refund is requested after deducting the prescribed common contributions from the paid-in amount paid by the union member, but the common contributions to be deducted and the time for refund may be separately determined

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 2 to 6, 10

the purpose of each entry, as a whole, of the entire pleadings, including branch numbers

2. Summary of the plaintiff's assertion

A. Summary of the primary claim

The Plaintiff prepared the instant agreement with the Defendant for the purpose of exchanging the instant apartment with the Defendant as the Defendant’s members without the intention to join the instant apartment. The term contract for the instant agreement is not a membership agreement, but a real estate exchange agreement. However, even though the Plaintiff transferred the ownership of the instant apartment to the Defendant pursuant to the instant agreement, the Defendant transferred the ownership of the instant apartment to K. Therefore, the Defendant was entitled to the claim following the impossibility of implementing the procedure for the registration of ownership transfer, and accordingly, the Defendant was liable to compensate the Plaintiff for the amount of KRW 78,596,891 on behalf of the Defendant at KRW 680,000,000,000 for the Plaintiff’s Industrial Bank of Korea on behalf of the Defendant and KRW 20,000,000,000 for relocation expenses lent to the Plaintiff, KRW 20,000,000,000, KRW 20,0000, KRW 3609,309,369,79,200,361,000

B. Summary of the First Preliminary Claim

Under the premise that the contract under the instant agreement is a real estate exchange contract, even if the Defendant’s previous president L, as alleged by the Defendant, was null and void without going through a resolution of the general meeting of association members, the Defendant, who is the employer, is liable to compensate the Plaintiff for damages arising from L’s tort, insofar as the Plaintiff did not know such fact. Therefore, the Defendant is liable to pay the Plaintiff the above KRW 409,101,740 and damages for delay.

C. Summary of the claim for the second preliminary action added in the trial

Even if the agreement of this case is not an exchange contract, the defendant is obligated to pay the settlement amount to the plaintiff according to the agreement of the association. There was a consensus between the plaintiff and the defendant to evaluate the same value of the instant apartment and the instant apartment. Therefore, the defendant is obligated to pay the settlement amount to the plaintiff, the above 409,101,740 won, and damages for delay.

3. Determination

A. Nature of the contract according to the instant agreement

1) As to the contract based on the instant agreement, the Plaintiff filed the instant claim on the premise that it is a real estate exchange contract, while the Defendant claims that it is a partner subscription contract, first, we examine the nature of the contract based on the instant agreement.

According to the purport of Gap's evidence Nos. 2, 4, 5, Eul evidence Nos. 2, 6, 7, 11 through 14, and 22, and the purport of the whole arguments and arguments, it is stated as follows: "supply apartment: 32 square meters (no additional charge) provided by the cooperative; 32 square meters supplied by the cooperative; 4, 5, and 50,000 won as of May 25, 2007; 50,000 won as of June 13, 2007; 120,000,000 won as of June 18, 2007; 200,000 won as of the loan; 32 square meters supplied by the cooperative; and 32,000,000 won as of the loan; and 200,000 won as of the remainder of the loan; and 200,000 won as of the loan.

Around November 10, 2009, the Plaintiff subrogated to the Defendant for the amount of secured debt for the establishment of a new apartment with the first installment of 32 square meters. On the other hand, the Plaintiff, including the Plaintiff, as a member of the Plaintiff, entered into the agreement with the Defendant on the establishment of a new apartment with the establishment of a new apartment with the first installment of 32 square meters. Meanwhile, the Seoul Central District Court 2010 Gohap36013, which issued a lawsuit seeking confirmation of non-existence of the liability for payment of additional charges, and received a favorable judgment from the Seoul Central District Court 2010 Ga36013 on December 23, 2010 on the ground that the Plaintiff, as a member of the Plaintiff, was demanding the Plaintiff to enter into a new purchase agreement with the Plaintiff on the establishment of a new apartment with the first installment of 32 square meters. The above judgment was finalized at the time, and the Plaintiff asserted that the Plaintiff’s right against the Plaintiff’s member of the Seoul Central District Court 2013.

The following circumstances, i.e., the membership certificate of the association and the agreement of this case, which can be known by adding the purport of the entire argument to the defendant, i.e., the defendant cannot additionally claim the membership fee, additional charges for the association members, etc., instead of selling the 32th square type to the plaintiff, if the plaintiff transferred the ownership of the last apartment of this case to the defendant. (ii) The plaintiff is the membership certificate of the association and the agreement of this case as of June 18, 2007 between the defendant and the defendant.

In light of the above fact that the plaintiff was unable to enter into the housing supply contract (Evidence A5) as a right to directly sign and seal on November 10, 2009 the association members' subscription agreement (Evidence B), and the supply contract of the association members (Evidence B) are stated as documents attached thereto, and it appears to be prepared as a house supply contract (Evidence A5). (4) On April 7, 2012, the plaintiff participated in the procedure for the new apartment house drawing as the defendant's partner and received a certificate of drawing that is stipulated as being used for the storage of the association members. (5) In light of the above fact that the plaintiff was not aware of the ownership of the association members after the previous lawsuit (Seoul Central District Court Decision 2010Na36013, Seoul Central District Court Decision 2013Na2721, May 2008, the plaintiff still lost its ownership or was aware of the ownership of the association members' subscription under the premise that the plaintiff was not entitled to subscribe to the new apartment drawing agreement.

2) As to this, the Plaintiff had already been on June 14, 2007, before the date of preparation of the instant agreement.

According to relevant laws and regulations and the Defendant’s covenant (No. 4), the wife, as the wife, could not acquire the membership of the association by owning a house exceeding 60 square meters. According to the Defendant’s association establishment authorization, the Plaintiff asserted to the effect that the Plaintiff’s membership of the association is nonexistent or null and void, and that only a real estate exchange agreement is valid, because the Plaintiff did not constitute a case of additional recruitment or replacement due to a vacancy in the Defendant association. The Plaintiff did not constitute a case of additional recruitment or replacement due to a vacancy in the Defendant association, and that there was no permission from the head of the association. The Plaintiff did not have the obligation to pay the charge to the Plaintiff.

Article 39 (1) of the former Enforcement Decree of the Housing Act provides that "regional housing association or workplace housing association shall not replace the relevant association members after obtaining authorization for its establishment: Provided, That this shall not apply where the number of union members obtains approval for additional recruitment of union members as prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs to the extent that does not exceed the expected number of household units, and where a vacancy occurs due to any of the following reasons, it shall be filled within the extent that the number of union members is filled, as prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs." The defendant newly joined 42 union members, including the plaintiff, and applied for authorization for modification of the contents of withdrawal of 10 association members, and the head of Dongjak-gu amended approval on August 13, 207.

In addition, Article 38 of the former Enforcement Decree of the Housing Act provides for the requirements for the qualification of a housing association member, and Article 39 of the Enforcement Decree of the Housing Act provides for the replacement and new joining of a housing association member. In light of the content of the provision, it is merely merely a simple regulation, and it cannot be said that it is an effective regulation, and thus, even if the parties agreed to violate the provision,

Since it is not effective (see, e.g., Supreme Court Decision 2011Da7628, Jul. 25, 2013). Even if the Plaintiff’s joining an association violates Article 39 of the former Enforcement Decree of the Housing Act, it cannot be deemed that the Plaintiff’s joining an association constitutes grounds for invalidation.

In addition, according to the evidence and the facts of recognition as seen earlier, the plaintiff shall be deemed to have prepared an application for membership and obtained permission from the president of the partnership. In addition, according to Article 2 of the Agreement, the plaintiff shall be deemed to have agreed to pay the instant contribution in lieu of the charge when entering into the agreement for membership.

Therefore, the plaintiff's assertion that only a real estate exchange contract of this case is valid on the premise that the membership contract of this case is nonexistent or null and void is without merit.

B. Determination as to the primary claim and the primary claim

As seen earlier, the Plaintiff’s primary claim on the ground that the agreement under the instant agreement constitutes a tort to enter into a real estate exchange contract without the resolution of the general meeting, and the Plaintiff’s primary claim on the ground that the Defendant association committed an illegal act to enter into a real estate exchange contract without the resolution of the general meeting is without merit.

C. Determination as to the second preliminary claim

1) The Defendant’s covenant provides that “a person who has lost the status of a partner due to withdrawal, deprivation of qualification, expulsion, etc. shall be paid within 30 days from the date of the claim for refund the balance calculated by deducting the prescribed amount of common contributions from the amount paid by the partner, but may separately determine the period of common contributions and the period of refund to be deducted by the resolution at a general meeting or at the board of directors (Article 12(4) of the Code of Association), and the Plaintiff’s status as a partner upon the Defendant’s notice of the loss of membership on September 6,

As seen above, the defendant is obligated to pay to the plaintiff the settlement amount after deducting common contributions from the plaintiff's paid-in amount, as stipulated in the above union rules.

2) We examine the specific amount of settlement.

A) On the other hand, in lieu of paying the Plaintiff’s contributions to the Defendant in cash, the Plaintiff was to transfer the ownership of the instant last resort and join the Defendant as the Defendant’s members. The fact that the Plaintiff agreed to have no additional charges related to the joining of the association and the supply of the instant apartment through the instant agreement is as seen earlier. According to the evidence No. 5, the housing supply contract (Evidence No. 5) entered into between the Plaintiff and the Defendant around 2008 is included in the total sale amount, the term payment amount, and the unpaid amount, and there is no indication of any amount. The Plaintiff should be deemed to have paid the contributions to the Plaintiff by transferring the ownership of the instant last resort to the Defendant.

Then, comprehensively taking account of the overall purport of the arguments as to the amount of money paid by the Plaintiff from the Plaintiff’s membership in the housing supply contract concluded with the Defendant and other association members in the housing supply contract concluded between the Defendant and the business district, M, the owner of the instant agreement, together with the Plaintiff, set at KRW 220,00,000,000 in the total housing supply contract concluded with the Defendant. Meanwhile, the 302 lessee N, the 302 lessee of the G Manmanyion, purchased G Manyion No. 302 from the O, and purchased KRW 220,000,000 in the housing supply contract concluded between the Defendant and the N at the time, and purchased KRW 20,000 in the total housing supply contract concluded with the Defendant and the other union members in the business district, M, the owner of the instant agreement with the Plaintiff, as well as KRW 220,000 in the total housing supply contract entered into with the Defendant as the Defendant.

The facts of sale can be acknowledged, and according to the above facts of recognition, the last session of this case is assessed as 220,000,000 won, and the ownership of the defendant is transferred to the defendant as payment in lieu of the union members' obligation to pay the contributions. Accordingly, it is reasonable to view that the amount the plaintiff paid to the defendant in the qualification of union members is KRW 220,00,000.

The Plaintiff asserted to the effect that, at the time of the preparation of the instant agreement, there was an agreement with the Defendant that the Plaintiff would equally evaluate the value of the instant apartment, and thus, the Plaintiff’s contribution paid to KRW 680,000,000 shall be deemed as KRW 680,000. However, there is no evidence to acknowledge the fact of agreement as alleged by the Plaintiff, and as seen earlier, the amount paid by the members of the Plaintiff shall be deemed as the amount indicated in the housing supply contract entered into between the members and the Defendant around 2008. The Defendant cannot be deemed as the sales price at the time of sale to a third party on or around June 2013 after the completion of the registration of ownership preservation on the instant apartment.

B) The Defendant asserts that the amount of subrogated amount of KRW 78,596,891 should be deducted from the settlement amount of KRW 220,000 to the Plaintiff. Thus, the Defendant’s subrogation of KRW 78,596,891 in order to cancel the right to collateral security under the name of the Industrial Bank of Korea established by the instant resolution is as seen earlier. As such, the Defendant’s settlement amount to be returned to the Plaintiff is 141,403,109, which deducts the amount of subrogated amount of KRW 78,596,891 from the amount of KRW 220,000,000,00 (=220,000,000 - KRW 78,596,891).

Next, the Defendant asserts that the Plaintiff’s claim for moving expenses against the Plaintiff is offset against the Plaintiff’s claim for the above settlement amount against the Defendant. The Defendant lent KRW 50,000,000 to the Plaintiff as of May 25, 2007, KRW 100 million as of June 13, 2007, KRW 20,000 as of June 13, 2007, and KRW 50,000 as of June 5, 200, respectively, to the Plaintiff, and the Plaintiff’s claim for the return of the loan reaches the due date for payment on September 6, 2012, which lost the Plaintiff’s status as the Defendant’s partner. Meanwhile, the Defendant’s protocol was followed.

According to Article 12(4) of the CC, the period of repayment of the Plaintiff’s claim prohibited from the settlement of accounts is the date following the lapse of 30 days from the time the Plaintiff requested the refund of the settlement amount. Thus, the Defendant may waive and set off the benefits arising from the claim as of September 6, 2012 so long as the period of repayment of the automatic claim comes due, and the two claims are extinguished retroactively from the due date of payment of the automatic claim. The amount of the Defendant’s loan principal and interest on the Plaintiff’s claim against the Plaintiff is KRW 170,000,000, and among them, KRW 20,000,000 and KRW 5,235,616 (“20,000,000,000 won”) from June 13, 2007 to September 6, 2012, the Defendant expressed its intent to set off the principal and interest on the Plaintiff’s loan to KRW 360,000,000,0000.

3) Ultimately, since the Defendant did not remain in the settlement amount to be paid to the Plaintiff, the Plaintiff’s second preliminary claim seeking the settlement amount against the Defendant is without merit.

4. Conclusion

If so, the plaintiff's primary claim and the primary claim are all reasonable, they shall be dismissed. The judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit, and the second preliminary claim added in the trial is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge's objection to judge

Judges Kim Jong-woo

Judges Hong Sung-chul

(i) Article 38 (Qualifications for Members);

(1) Persons eligible for membership in a housing association under Article 32 of the Act shall be as follows:

1. In cases of members of a regional housing association, persons meeting the following requirements:

(a) A person who fails to own a house from the date of application for authorization for the establishment of a housing association (where the relevant housing construction site is located in an overheated speculative district under Article 41 of the Act, referring to the date one year prior to the date of application for authorization for the establishment of a housing association) to the date possible to move into the relevant housing association (including where the relevant housing construction site is in the position prescribed by the Ordinance of the Ministry of Land, Transport and Maritime Affairs in consideration of the type of housing, methods of selecting occupants, etc.; hereafter the same shall apply in this subparagraph) or owns a house with an exclusive residential area of not more than 60 square meters (including the spouse of a household member including the head of a household (including the head of a household who is not registered in the same resident registration card as the head of a household and a household member who has the same household as his/her spouse who is not registered in the same

(b) A person who has resided in an area under subparagraph 11 (a) of Article 2 of the Act for at least six months as of the date of applying for authorization to establish

2) Since the Defendant lent 170,000,000 won to the Plaintiff and lent 20,000,000 won to the Plaintiff at an annual interest rate of 5%, the gold sources claimed by the Plaintiff shall be 429,101,740 won (=680,000 won - 78,596,891 won - 170,000,000 won - 2,301,369 won) but the Plaintiff seeks 409,101,740 won as it further deducteds 20,000,000 won.