2010Na5404 Return of down payment

1. The Axik Bank;

Attorney Lee In-bok, Counsel for the defendant-appellant

2. The Korea Stock Exchange;

Plaintiffs, Law Firm 00, Attorney 000

Corporation B

Attorney Lee In-bok, Counsel for the defendant-appellant

Daegu District Court Decision 2009Gahap6961 Decided June 29, 2010

March 2, 2011

March 16, 2011

1. The part concerning the conjunctive claim in the judgment of the first instance shall be revoked;

2. The plaintiffs' preliminary claims are all dismissed.

3. The costs of the lawsuit are assessed against the Plaintiffs.

1. Purport of claim

The defendant shall pay to the plaintiffs 4,373,562,686 won with 20% interest per annum from the following day of delivery of the written application for modification of claim and cause of claim of this case to the day of full payment.

2. Purport of appeal

The same shall apply to the order.

1. Scope of the judgment of this court;

In the first instance court, the plaintiffs filed a claim against the defendant for restitution of unjust enrichment on the defendant's right to claim for restitution of the down payment, etc. which the defendant acquired by C (hereinafter referred to as "C") under the premise that the defendant had been transferred the defendant's real estate purchaser status in the first instance court, and the conjunctive claim for reimbursement of the loan owed to the defendant who acquired by C (hereinafter referred to as "C") again reverts to the defendant. The first instance court dismissed the main claim and accepted the conjunctive claim, and only the defendant appealed against the main claim, the above part of the appeal is limited to the scope of the trial court's judgment.

A. The Defendant transferred a business right to C as an executor of the Daegu 00-Gu 00-Gu 00-dong Multi-Family Housing Construction Project, etc. (hereinafter “instant project”). However, the Defendant cancelled the relevant transfer contract. The Plaintiffs are those who provided loans related to the instant project to the recipient and C.

B. On February 27, 2006, the Defendant borrowed a total of 16 billion won from the Plaintiffs respectively, and thereafter used the above loans to purchase the site necessary for the implementation of the project from around that time.

C. On May 9, 2007, when transferring the instant business right to C with the consent of the plaintiffs, the defendant entered into a contract to transfer or acquire the instant business right (hereinafter referred to as "contract to transfer the business right of this case") with the content that takes over the first loan obligation of this case (including the site of the business), and the main content of the contract is as follows (hereinafter referred to as "A")

C. Foods

Article 3 (Roles and Responsibility of Duties)

1. Roles A

(a) A shall transfer all business rights to B;

(b) A shall enter into a contract in the name of "B" for the real estate stipulated in Article 2 of this Agreement.

(d) A is required to collect all the documents necessary for the completion of the relevant real estate contract and for various kinds of persons and permits so that B may proceed with the project.

2. Roles of B;

(c) Eul shall, after approving the increased loans of the AA Savings Bank, comprehensively take over all of the liabilities of "A" to the A Savings Bank and the E Savings Bank;

Article 4 (Amount of Transfer and Acquisition of Real Estate Development Project and Housing Project Right)

The transfer amount of the above real estate development project and housing project rights shall be KRW 2.2 billion, and Eul shall pay the price to Gap as follows:

1. Contract amount: one hundred and fifty million won - Within twenty days after the contract for the acquisition by transfer;

2. Balance: 2,50,000 won - This PF time after approval for the project.

Article 6 (Termination, etc. of Contracts)

3. In any of the following cases, a notification and request for the termination of a mutual principal contract may be made:

(b) where Eul violates the terms and conditions of this Agreement and it is deemed impracticable to faithfully perform the contract due to its violation, and where Eul delays the payment of the amount of transfer of real estate development projects and housing projects rights.

Matters of special agreement

3. Change of name in the name of B for smooth progress of the business prior to the date of this PP, a written contract in the name of Party A;

(2).

4. The problems arising out of the existing contracts entered into by A shall be the responsibility of A and shall not be applicable to B.

interest shall not be of interest.

D. After that, the Defendant merely received the down payment of KRW 150 million under the above transfer contract from C, but did not receive the remainder of KRW 2 billion. Thus, around August 7, 2008, the Defendant notified C that the transfer contract of this case should be deemed to have been reversed unless the remainder is paid by August 20, 2008.

E. Meanwhile, around May 25, 2007, C took out a loan of a total of KRW 21.5 billion ( KRW 13.5 billion, KRW 2.5 billion, Plaintiff 2.8 billion) from the Plaintiffs, and it actually received the remainder of KRW 5.5 billion after treating the loan of this case from the Defendant as repayment of the debt of this case (hereinafter “the second loan of this case”) and between the Plaintiffs at the time, C did not secure the entire share of the site subject to the project of this case, or lost this interest based on the above loan of this case. Since June 28, 2008, C lost its interest payment during the period of arrears.

F. From December 2, 2006 to September 2008, the Defendant was notified of the cancellation of the contract between the seller on the ground of non-payment of the balance of the purchase and sale from the seller in the business site. From September 22, 2008 to December 18, 2008, the Defendant filed a lawsuit claiming the return of the total amount of seven contract deposit, etc. (the total amount of KRW 4,373,562,686) against the seller, and won the total of KRW 1.19 billion. However, the Plaintiffs’ claim against the winning claim was seized [the amount of KRW 2,831,879,430, the claimed amount was KRW 2,879, KRW 430, KRW 209, KRW 209, KRW 485, KRW 4855, KRW 209, KRW 2005, KRW 1536, KRW 13636, respectively.15].

A. The plaintiffs

After the cancellation of the business right transfer contract between the defendant and C after the second loan of this case, the acquisition of the first loan of this case became retroactively null and void, and the repayment of the first loan of 16 billion won at the time of the second loan of this case is merely a refund for the extension of payment period. Thus, the defendant is obligated to pay to the plaintiffs the amount of 4,373,562,686 won as part of the first loan of this case as the principal claim amount of 16 billion won (the plaintiff's assertion is that C acquired the first loan of this case to the plaintiffs by the assumption of obligation under the business right transfer contract of this case, and the repayment of 16 billion won out of the second loan of this case is merely a exchange, and merely merely a repayment settlement of the second loan of 16 billion won against the plaintiffs, the plaintiff's first loan of this case continues to exist while being changed from the debtor to C to the defendant, and the defendant's obligation of this case becomes retroactively null and void due to the cancellation of the business right transfer contract of this case.

B. Defendant

If the first loan obligation of this case was extinguished by the settlement of repayment at the time of the second loan, even if the business right transfer contract of this case was cancelled thereafter, the Defendant’s obligation is not restored, and even if the first loan obligation of this case was not extinguished, the obligation of this case should only be performed by the Defendant’s return and redemption of the above 00 land, etc., which had already been completed the registration of ownership transfer to C.

4. Determination

A. First, we examine whether the first loan claim by the assumption of the obligation and replacement of the plaintiffs' assertion continued to exist while maintaining its identity with the change of the debtor.

In the instant business right transfer contract, C agreed to comprehensively acquire the Defendant’s obligations against the Plaintiffs, and the first loan was repaid by the second loan, and C actually received only the remainder of 5.5 billion won after deducting the first loan. The fact that the Plaintiffs consented to the transfer contract of the instant business right is as seen earlier.

However, such circumstance alone is insufficient to recognize that C acquired the first loan obligation or the second loan constitutes a substitution, and there is no other evidence to acknowledge it.

Rather, according to the above quoted evidence and the purport of the argument, the first loan of this case is 16 billion won in total with the loan principal, 6 months due, interest rate of 11% per annum, and 25% per annum. The second loan of this case is 21.5 billion won in total with project financing between the plaintiffs and C, 7 months in time limit of loan, 25% per annum (Plaintiff 1) or 22% per annum, and it is difficult to see that the first loan of this case and the second loan of this case were transferred with the loan of this case as the first loan of this case and the second loan of this case, and it is hard to see that the first loan of this case was transferred with the loan of this case as the first loan of this case and the second loan of this case, and the second loan of this case was transferred with the loan of this case as the first loan of this case and the second loan of this case and the second loan of this case.

B. Home Affairs, as alleged by the plaintiffs, the primary loan obligation of this case was accepted and continued to exist in C while maintaining the identity, and even if the contract for the transfer of the business right of this case was rescinded by the defendant and C, the retroactive termination due to the cancellation is merely a contract with the party to the contract, and the contract between one party and the third party is not null and void. Thus, even if C took over the intentional loan obligation between the plaintiffs and the party under the contract for the transfer of the business right of this case, it cannot be deemed that the defendant is retroactively null and void due to the retroactive effect of the termination of the contract, and the obligation of the loan is not to be borne again by the defendant (if the contract for the transfer of the business right of this case was lawfully rescinded, the defendant is obliged to pay 16 billion won upon the rescission of the contract, and the defendant is obliged to return the interest of 16 billion won which has been discharged by C to C on behalf of the party to the contract, and thus the plaintiffs can seek the duty of restoration by subrogation of C).

C. Therefore, the plaintiffs' assertions on the premise that the defendant's primary loan obligation has been repaid through the assumption of the assumption of the obligation of this case, substitution and rescission of the contract of transfer of business right of this case are without merit. 5. conclusion is without merit.

Therefore, the part of the plaintiffs' preliminary claim appealed by the defendant is dismissed as it is without merit. Since the judgment of the court of first instance with different conclusions is unfair, the part of the preliminary claim among the judgment of the court of first instance is revoked and all of the plaintiffs' claims are dismissed. It is so decided as per Disposition.

Red-face (Presiding Judge)

Freeboard Kim

x. Jark Sick Number