Plaintiff’s missionary Association (Law Firm Rate, Attorneys Seoh-kin et al., Counsel for the plaintiff-appellant)

Defendant church (Attorney Yellow-chul et al., Counsel for the defendant-appellant)

August 10, 2005

Incheon District Court Decision 2003Gahap2969, 2003Gahap4040 decided May 19, 2004

1. The defendant (Counterclaim plaintiff)'s appeal is dismissed.

2. The costs of appeal are assessed against the Defendant-Counterclaim Plaintiff.

The purport of the claim in this lawsuit: The defendant (Counterclaim plaintiff, hereinafter "the defendant") shall be paid KRW 230,000,000 from the plaintiff (the counter defendant; hereinafter "the plaintiff") at the same time, each registration listed in paragraph (1) of attached Table 1 concerning each real estate listed in paragraph (1) of attached Table 1, listed in paragraph (2) of attached Table 1, listed in paragraph (3) of attached Table 1, listed in paragraph (2) of attached Table 2 of the real estate list of attached Table 1, listed in paragraph (2) of attached Table 2 of the real estate list of attached Table 2, and listed in attached Table 47.64/93 of each real estate listed in paragraphs (1) and (2) of attached Table 1, shall be cancelled, and the ownership transfer registration shall be completed on April 14, 202 with respect to each real estate listed in paragraphs (1) and (2).

At the same time with the payment of KRW 94,00,00 from the Plaintiff, the Defendant shall cancel each registration listed in paragraph (1) of the attached Table of Real Estate listed in Paragraph (1) of the attached Table of Real Estate in Paragraph (1) of the attached Table of Real Estate, the registration listed in Paragraph (2) of the attached Table of Real Estate listed in Paragraph (1) of the attached Table of Real Estate in Paragraph (2) of the attached Table of Real Estate in Paragraph (1) of the attached Table of Real Estate, and the registration listed in Paragraph (2) of the attached Table of Real Estate listed in Paragraph (2) of the attached Table of Real Estate in Paragraph (3) of the attached Table of Real Estate. The Defendant shall implement the procedure for ownership transfer registration for shares of 447.64/2,842.93 out of each of the real estate listed in

The purport of the counterclaim and appeal: the plaintiff, the defendant,

A. Each transfer of the three-story 447.64 square meters and 447.64 square meters among the buildings listed in the attached list of real estate in (2) of the attached list;

(b)payment of 49,886,000 won and 20% interest per annum from May 26, 2003 to the date of full payment;

C. From May 26, 2003 to May 26, 2003, the amount calculated by the ratio of KRW 3,866,00 per month to KRW 3,86,00 per month from the date of delivery to the Defendant of the three-story 447.64 square meters and 447.64 square meters among the buildings listed in attached Table (2)

1. Factual basis

The following facts are acknowledged based on Gap evidence 1-1 or Gap evidence 8 (including paper numbers), Gap evidence 11, Eul evidence 1-1 to Eul 4-8 (including paper numbers), Eul evidence 10-1, 2-2, Eul evidence 12-1 and 12-2, and the testimony of non-party 1 of the party witness non-party 1.

A. On December 18, 2001, Nonparty 1 purchased the purchase price at KRW 1,896,00,00 from the Defendant to Nonparty 2, who is the representative of the Defendant, the real estate indicated in the attached Table No. 1 of Real Estate owned by the Defendant (at the time, only the 4th floor aggregate construction was completed, and thereafter the building was constructed as described in the attached Table No. 1) at KRW 1,896,00,000. Nonparty 1 decided to succeed to the down payment at KRW 850,000 by January 1, 202. Nonparty 1 paid the down payment at KRW 189,60,000 and the intermediate payment at KRW 160,40,000, and the remainder of the construction cost at KRW 696,000,000 for each of the above 00 and the intermediate payment at KRW 100,000,000 for the remainder of the construction cost at each of the above 000th and the underground floors.

B. While Nonparty 1 tried to sell the instant building on each floor in order to raise the construction cost as above while carrying out a new construction project, it did not have any way to clearly indicate Nonparty 1’s ownership because the name of the owner of the building at the time was not transferred to Nonparty 1 and the registration of the owner of the building at the time remains the defendant, and the registration of ownership preservation was not complete, and there was no way to externally indicate that the said building was owned by Nonparty 1. Thus, Nonparty 1 requested Nonparty 2, the representative of the defendant, through Nonparty 3, who supported his business, to prepare a letter of delegation to this effect in order to indicate that he had legitimate authority to purchase the said building and sell it. On January 23, 2002, Nonparty 2 requested Nonparty 1 to prepare and deliver it to Nonparty 1 through Nonparty 3 with a certificate of personal seal impression attached.

C. After that, Nonparty 1 presented the power of attorney to the Plaintiff who wishes to purchase the above 3 and 4th floor of the building. Nonparty 2’s seal imprint affixed to the proxy form presented by Nonparty 1 was different from that of the certificate of personal seal impression affixed thereto, and the Plaintiff raised an issue. Nonparty 1 again stated the date of preparation as of January 23, 2002 in the above proxy form as of January 23, 200, and then presented this power of attorney to the Plaintiff. Accordingly, on April 14, 2002, the Plaintiff signed the above 3 and 4th floor of the above building to pay the remaining 00th floor of the above 4th floor of the building (including the site area calculated at the ratio of the area exclusively used for the building after reorganization, 465,000,000 won to 30th of the above 40th of the sales site, and the remaining 20th of the sales site amount to be paid from each of the above 200th of the above 30th of the sales site.

D. Nonparty 1 continued to carry out construction of the above building and entered into almost completed construction on June 2002, and the Defendant changed the name of the owner of the above building on June 12, 2002 to Nonparty 1. However, Nonparty 1 did not pay any balance for five months after the date on which the agreement was made to pay the balance of the purchase price, and Nonparty 4, who purchased the underground floor of the above building, did not settle disputes between Nonparty 4 church and the Defendant on June 11, 2002, such as making a provisional disposition to preserve the right to claim ownership transfer registration as to the site of the above building on June 11, 2002. Nonparty 1 and the Defendant did not register the ownership transfer registration of the above building on two parcels of the building site of the above building, to cancel the sale contract on the building under the name of Nonparty 1 and the Defendant on July 21, 2002, and to cancel the sale contract under the name of each of the above Defendants on July 21, 2002.

2. Determination on the main claim

We examine the plaintiff's claim for the registration of transfer among the claims filed by the court of first instance (the plaintiff, while the court of first instance, asserted that the defendant bears the duty to transfer a complete property right which is not limited or charged to the seller of the third and fourth floor among the above buildings, and sought the cancellation of each registration in the attached list (3) and (4) of the real estate in which the third and fourth floor of the above building was completed. The court of first instance judged this as an unlawful lawsuit and dismissed it by the judgment, and the plaintiff did not file an appeal, so the part of the plaintiff's claim for the registration of cancellation does not fall within the scope of the judgment of the court of first instance, and therefore, the part of the claim for the registration

As seen above, it is reasonable to view that the defendant granted the right of representation to the non-party 1 by delivering a power to delegate all the powers regarding the conclusion of the sales contract of the above building to the non-party 1. Under each sales contract which the non-party 1 entered into between the plaintiff and the plaintiff as the representative of the defendant with respect to the third and fourth floors of the above building, the defendant should make a registration of ownership transfer for the third and fourth floors of the building including the right of ownership to the plaintiff if the registration of division of the above building has been made. Until the registration of division has been made, the defendant made a registration of ownership transfer for the share equivalent to the above third and fourth floors among the total building area of the above building and its site, and the defendant did not have a duty of ownership transfer registration for the above third and fourth floors to the plaintiff at the same time after the registration of division was made, and the defendant did not have a duty of ownership transfer registration for the remaining part of the above building and the remaining part of the building's share transfer registration for the non-party 1 to the plaintiff.

As to this, the defendant argues that the above delegation was delivered to the non-party 1 and that since the non-party 1 approved the conclusion of each of the above commercial supply contracts with the plaintiff, since the non-party 2 did not have passed a resolution of the church to approve the conclusion of the above commercial supply contract with the plaintiff, each of the above commercial supply contracts that the plaintiff entered into with the non-party 1 cannot be recognized as effective. However, according to the statement of Eul evidence 8, the defendant's party meeting was held on February 17, 2002 after the non-party 2 prepared the above delegation letter and delivered it to the non-party 1, and the party meeting confirmed the sales contract as of December 18, 2001 between the non-party 1 and the defendant and approved the right of representation of the non-party 2 as to the above disposition of the building, it is reasonable to deem that the non-party 2 delegated the above authority to the non-party 1, and therefore, it is reasonable to deem the defendant's party's assertion to the above opinion.

In addition, at the time when Nonparty 2 prepared and delivered the above letter of delegation to Nonparty 1, the Defendant already used the underground floor of the above building in accordance with the terms stipulated in the sales contract on the above building which the Defendant concluded with Nonparty 1, but the N.S. D. D. D., because it is inappropriate to move into two churches in one building, the part on the ground of the above building is delegated with the authority to sell it to another church under the condition that it shall not be sold to the other church. However, Nonparty 1 concluded each of the above commercial supply contracts with Nonparty 2 for selling the above building 3 and 4 floors to the Plaintiff who is a church in violation of these conditions beyond the scope of the right of representation granted by himself. However, there is no evidence to support that the Defendant limited the right of representation on the condition that the Defendant delegated all the rights to sell the above building to Nonparty 1 as alleged by the Defendant. Therefore, the above assertion by the Defendant is without merit.

Furthermore, at the time of concluding the above commercial building supply contract, the defendant used the 3 and 4th floor of the above building as an educational center, and violated the contract by occupying the above 3 and 4th floor without full payment even though the plaintiff could move in in in full with the remaining 3 and 4th floor from May 26, 2002, and on this ground, the defendant did not have any obligation to respond to the plaintiff's request. Then, according to the witness's testimony, although the plaintiff promised to use the above 3 and 4th floor as an educational center at the time of signing the above commercial building supply contract, the plaintiff's promise to use the above 3 and 4th floor as an educational center at the time of signing the above commercial building supply contract, but it cannot be deemed that the plaintiff used the remaining 4th floor for the purpose of non-party 2's original cancellation of the contract, and it cannot be deemed that the plaintiff used the above 20th floor for the purpose of non-party 3's cancellation of the contract, and it cannot be viewed as the defendant's testimony 1 and 2nd.

In addition, the defendant asserts that since the defendant and the non-party 1 rescinded an agreement on the sales contract of the above building at the beginning of July 2003, each of the above shopping district supply contracts between the plaintiff and the non-party 1 became invalid. However, as long as the non-party 1 signed each of the above shopping district supply contracts on behalf of the defendant on behalf of the defendant, the conclusion of the contract is effective to the defendant, who is the principal, and thus, even if the legal relationship between the defendant and the non-party 1 changes thereafter, it cannot affect the validity of each of the above

In addition, the defendant is obligated to pay value-added tax on the price under the above commercial building supply contract. Since this obligation is concurrently performed with the defendant's obligation to pay value-added tax, the defendant asserts that the defendant has the obligation to pay the share transfer registration on the 3 and 4th floor of the above building only with payment and repayment of value-added tax. According to the evidence No. 1-1 and No. 2 of the above commercial building supply contract, it is recognized that the above contract states "the cost for supplying the commercial building is separate from value-added tax." If there is an agreement between the parties to the transaction to bear value-added tax, the business owner can claim the amount equivalent to value-added tax from the person who receives the supply pursuant to the agreement and such agreement can be made in an implied form (see Supreme Court Decisions 9Da3984, Nov. 12, 1999; 2002Da38284, Nov. 22, 2002; 2003Da45314, etc., the above part of the above supply contract between the plaintiff and the defendant's share supply.

Therefore, at the same time, the Defendant is obliged to receive KRW 324,00,000 from the Plaintiff (230,000 + KRW 94,000 + KRW 94,00,000). With respect to shares of 447.64/2,843 out of each of the real estate listed in the Schedule of Real Estate (1) and (2), the procedures for the registration of ownership transfer for sale on April 14, 2002, and the ownership transfer for shares of 447.64/2,842.93 out of each of the real estate listed in the Schedule of Real Estate (1) and (2) are liable to implement each procedure for the registration of ownership transfer for sale on April 23, 202.

3. Judgment on the counterclaim

The defendant asserts that the plaintiff occupied the 3 and 4th floor of the above building owned by the defendant from May 26, 2002 without permission, and sought unjust enrichment equivalent to the amount of rent until delivery is completed.

However, as seen above, each of the above commercial building supply contracts between the plaintiff and the non-party 1, who is the representative of the defendant, is valid, and as long as the plaintiff takes over the 3 and the 4th floor of the above building from the non-party 3 who supported the non-party 1's business as stipulated in the contract, the plaintiff shall possess it as legitimate authority. Therefore, the defendant's request for extradition and the claim for return of unjust

4. Conclusion

Therefore, the plaintiff's claim for each transfer registration is justified, and the counterclaim is dismissed as it is without merit, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.

[Attachment List of Real Estate]

Judges Kim Young-tae (Presiding Judge) Kim Jong-ho