(영문) 서울남부지방법원 2015. 6. 11. 선고 2014나11623 제1민사부 판결

The judgment of the first instance court is revoked. Defendant B Apartment Building Construction Promotion Committee (hereinafter referred to as “Defendant Promotion Committee”) is:

60,000,000 won to the Plaintiff and the service date of a duplicate of the complaint in this case from April 10, 2003 to the date of service of the Plaintiff.

The Defendants shall pay 5% per annum and 20% per annum from the following day to the day of full payment. Pursuant to the contract concluded on July 8, 201 with respect to No. 104 (hereinafter “instant real estate”) in Yangcheon-gu Seoul, Yangcheon-gu, Seoul, the reservation for purchase and sale of the instant real estate shall be revoked. Defendant C shall implement the procedure for the cancellation of the registration of the right to claim transfer of ownership, which was completed on July 8, 201 by the Seoul Southern Southern District Court No. 32872 on the instant real estate, with respect to the registration of the cancellation of the right to claim transfer of ownership, which was completed on July 8, 2011 by the Defendant Promotion Committee (the Plaintiff added the Plaintiff’s claim on the grounds that U.T. and T acquired the right to claim the return of the right to claim the return of the right

Reasons

1. Facts of recognition;

A. On July 16, 2002, Sung Jin-do Co., Ltd. (hereinafter referred to as "Majin-do Co., Ltd.") opened a briefing session for the project to remove existing houses and build new apartments against owners of housing in Yangcheon-gu Seoul (hereinafter referred to as "project site of this case") and purchased the project site of this case. E Co., Ltd (hereinafter referred to as "E") began to purchase the project site of this case in order to construct an apartment in the project site of this case.

B. In light of the information that the apartment project in this case is being promoted, G and P participated in the apartment project in question and establish a company for reporting profit with H (hereinafter “H”), and purchased part of the land in this case and made a joint registration. On September 2002, E, one of the above apartment project promoting companies, on the ground that the above joint registration has been completed, “E” did not have funds to purchase the project site, and H would provide support of KRW 6 billion. Thus, the right to sell newly built apartment.

In 200 different cases, I clearly expressed the intention to participate in the business, and between I and I, which received it, entered into a sales agency contract where H would act on behalf of the members in connection with the apartment business executed in the project site of this case.

C. G and P made 200 units of right to purchase and sold 200,000 won as 30,000,000 won as 'the membership certificate of association members', which were promised by E'. G, P, and real estate brokers, who were engaged in P, made 6,00,000 won of the site purchase fund. On September 18, 2002, G, P, and P agreed to sell the membership certificate of 30,00,000 won through a neighboring real estate brokerage office. Accordingly, real estate brokers agreed that P, etc. will have real estate brokers, and accordingly, sold the membership certificate from September 18, 200 to September 13, 2004.

D. In light of the contents of the above certificate of membership rights of the union members, it is stated in the upper part that "the reporter is entitled to join the union at the time of recruiting union members in the business site of this case", and it is stated that "in the case of purchasing the certificate of membership rights of the union members even though the owner of the business site of this case is not the owner of the business site of this case, the purchaser and real estate broker who sold the certificate of membership rights of the union members can purchase the certificate of membership rights of the apartment house to be constructed in the business site of this case as a matter of course, and they can purchase the apartment house if they purchase the certificate of membership rights of the union members."

E. I and thirty others organized 'B regional housing association' for the purpose of the apartment project in this case on September 25, 2002, and I were elected as the president of the association. The above B regional housing association was assigned a registration number for the registration of real estate from the head of Yangcheon-gu Seoul Metropolitan Government on October 2, 2002, and was named 'the name.'

On November 1, 2002, the name of the committee was changed to the defendant's promotion committee by opening the general meeting on November 1, 2002, and the representative of the defendant's promotion committee was changed from I to G on the same day.

F. On March 6, 2003, G agreed to jointly implement the instant apartment project, and following that day, E acquired the entire business site of the instant apartment project and the right to operate the instant apartment from G with the help of G during the said joint executor, and decided to jointly implement H and E’s staff J as the president of H, and to establish a “B-1 regional housing association with 435 members, such as the purchaser of the right to subscribe for membership in the instant apartment project in relation to the instant apartment project, and the purchaser of the right to subscribe for membership in the instant apartment project.” On June 28, 2003, the head of Yangcheon-gu Seoul Metropolitan Government decided to grant authorization to establish the establishment of the “B-1 regional housing association with the limit of 287 members as to the land and the building owner of the instant apartment site.

G. After that, on November 11, 2003, the B-1 regional housing association applied for the approval of a new apartment construction project plan to the head of Yangcheon-gu, the final return was made from the head of Yangcheon-gu on February 7, 2004, and the authorization of the establishment of the B-1 regional housing association was revoked on December 2, 2005.

H. G falsely speaks that with respect to the instant apartment business, from September 18, 2002 to September 13, 2004, G would have the victims of 185 members of K et al. purchase the membership card to purchase a new apartment that is expected to be a new bamboo if he/she purchased the membership card from the victims of 185 members of K et al. from September 18, 2002, and received 12,516,80,000 won in total as the subscription fee, down payment, and the premium, etc. from them, and acquired it by fraud, as the Seoul Southern District Court was indicted for 2004Da387,401 (combined) and was sentenced to three years of imprisonment by the above court on March 10, 2005, and on this, G appealed appealed appealed appealed as 205No6655.

On July 6, 2005, the above court was sentenced to imprisonment with prison labor and two years and six months, and the above judgment of the appellate court became final and conclusive around that time.

자. 한편, 원고는 G가 운영한 H의 직원이었던 사람으로 '주택조합 가입증명서' 2장 (갑 제9호증의 1, 2, 이하 갑 제9호증의 1을 '원고 명의 제1 가입증명서', 갑 제9호증의2를 '원고 명의 제2 가입증명서'라 하고, 이를 통틀어 '원고 명의 각 가입증명서'라 한다)을 소지하고 있는데, 원고 명의 제1 가입증명서는 '주택조합 가입증명서'라는 제목아래에 '관리번호 00244, 가입일자 2003. 4. 9„ 성명 A(원고), 신청평수 32평형, 신청금액 일금 삼천만원정', 그 아래에 '위와 같이 귀 조합에 가입하였음을 증명하며 위 금액을 영수함', '2003. 4. 9.', '위 신청인 : A', 그 아래에 'B아파트건립추진위원장(날인된인영은 위 명칭과 다른 'B연합주택조합장인'이라는 인장에 의한 것임)'이라고 각 기재되어 있고, 원고 명의 제2 가입증명서는 '관리번호 00245'라고 기재되어 있는 외에 나머지 기재내용은 모두 원고 명의 제1 가입증명서와 동일하며, 원고 명의 각 가입증명서에는 사선이 그어지고 사선 옆에 '회수'라고 기재되어 있다. 또한 원고는 원고 명의각 가입증명서 이외에도 원고 명의 제1 가입증명서와 나머지 기재내용은 동일하고 가입자의 성명만 'A'에서 'U'으로 변경된 주택조합 가입증명서(갑 제10호증의 2, 이하 'U명의 가입증명서'라 한다)와 원고 명의 제2 가입증명서와 나머지 기재내용은 동일하고가입자의 성명만 'A'에서 T'으로 변경된 주택조합 가입증명서(갑 제10호증의 1, 이하'T 명의 가입증명서,라 하고, U 명의 가입증명서와 통틀어 'U, T 명의 각 가입증명서'라 한다)도 소지하고 있다.

E. The Plaintiff’s deposit account in the name of H was transferred to KRW 15 million on March 28, 2003, KRW 30 million on April 8, 2003, and KRW 60 million on April 9, 2003.

(k) On July 8, 2011, the Defendant Promotion Committee entered into a pre-contract with Defendant C to sell and purchase the instant real estate, and on the same day, the Defendant C completed the registration of the right to claim ownership transfer under Article 32872 of the Seoul Southern District Court’s receipt of the said land.

[Ground of recognition] Facts without dispute, Gap evidence 2, 3, 7, Gap evidence 8-35, Gap evidence 9, 10

1, 2, Gap evidence 14, Eul evidence 14, Eul evidence 1, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

(1) The plaintiff's primary assertion

On the other hand, in order to purchase an apartment in relation to the apartment project of this case promoted by the Defendant Promotion Committee, the Plaintiff entered into an agreement to join the association with the Defendant Promotion Committee on April 9, 2003 by paying an aggregate of KRW 60 million as a membership fee to the Defendant Promotion Committee and issuing a certificate of joining each Housing Association. The apartment project of this case was cancelled on or around December 2005. Accordingly, the Plaintiff’s membership agreement was cancelled due to nonperformance. Accordingly, the Defendant Promotion Committee is obliged to pay the Plaintiff the membership fee of KRW 60 million and damages for delay due to the cancellation of the contract or the nonperformance of the contract.

As above, the Defendant Promotion Committee concluded a pre-sale agreement with Defendant C on the instant real estate, the only property of which is the Plaintiff’s sole property, and completed the registration of the right to claim ownership transfer in the future. The pre-sale agreement among the Defendants on the said real estate constitutes a fraudulent act that harms the obligee, including the Plaintiff, and thus, should be revoked. As a result, the Defendant C is obliged to implement the procedure for the cancellation of the provisional registration of the right to claim ownership transfer on the said real estate by restoring to its original state.

(2) The plaintiff's conjunctive assertion

In order to purchase apartment houses related to the apartment project of this case promoted by the defendant's promotion committee, U, T paid 30 million won in total to the defendant's promotion committee in April 9, 2003 and entered into an agreement to join the association with the defendant's promotion committee on April 9, 2003 by issuing the certificate of joining the association. Since the apartment project of this case was cancelled on December 2005, U and T cancelled the above membership agreement for reasons of non-performance, and thereafter notified the defendant's promotion committee of transfer of all rights such as the right to claim for refund of membership fees in accordance with the termination of the contract with the defendant's promotion committee. Thus, the defendant's promotion committee is obliged to pay the plaintiff the amount of 60 million won in total due to restitution or non-performance due to the cancellation of the contract.

B. The defendants' assertion

The certificate of joining each housing association held by the plaintiff is not authenticly prepared between the defendant promotion committee and the defendant promotion committee, and G prepares the above certificate of joining on behalf of the defendant promotion committee.

It does not mean that the defendant promotion committee has received membership fees from the plaintiff, U, or T. Therefore, the defendant promotion committee cannot be deemed to have concluded an membership agreement with the plaintiff, U, or T. Therefore, the defendant promotion committee does not bear the obligation to return membership fees against the party to the membership agreement, U, or T, claiming that the defendant promotion committee received the right from the party to the membership agreement, U, or T.

Even if Defendant Promotion Committee bears the obligation to return membership fees to the Plaintiff, the pre-sale promise between the Defendants regarding the instant real estate is to secure the existing loan obligations owed by Defendant C, and does not constitute fraudulent act.

3.Flag

First, the defendant promotion committee issued a certificate of joining the association to the plaintiff, U, and T, and entered that the certificate of joining the association was prepared as of April 9, 2003, as of whether the plaintiff's subscription was entered into with the plaintiff, U, T', and G was the representative of the defendant promotion committee at the time of the formation of each subscription certificate. The fact that the sum of the 60 million won was transferred from the deposit account in the plaintiff's name to the H deposit account from March 28, 2003 to April 9, 2003, the 200 million won was stated as follows: Gap's 2,3,7, evidence No. 8-28, 33, 35, Gap's apartment, 10-1, 2, 14, 15, 13, 2, 18, 2, 31, 2, 30, 2, 30, 2, 10, 10, 2, and 3.

Although the act was decided as the representative's reduction, each of the above certificates of entry of this case is difficult to be deemed as the name of the defendant's promotion committee's establishment of each subscription certificate, because it is not the personal seal of G at the time when the representative of the defendant's promotion committee was not the representative of G, but the seal is the president of the "Bllied Housing Association", and ② H began to sell membership cards from September 18, 202, before the defendant's promotion committee was established or it was the representative of the promotion committee's committee's establishment, and was sentenced to criminal punishment for deceiving many victims from around September 13, 200 to acquiring money under a large amount of expenses for joining the association. Each of the above certificates of entry of this case is prepared as of April 9, 203 as of the above crime No. 4 of G's above crime period, and it is difficult to see that the plaintiff was actually aware that it was an unlawful member's right to deposit money from the defendant's 2's general account.

Around September 206, the Korea-U.S. General Construction prepared a list of victims of preferential rights to join the association in order to report to the general meeting of the committee for the Emergency Countermeasures against the District Housing Association in September 2006. Although the plaintiff stated that he/she purchased the rights to join the association, it is not stated that the plaintiff himself/herself purchased the rights to join the association, and that G had been present as a witness at the first instance court of this case and exchanged the rights to join the association in the form of book to the purchaser after the authorization for the establishment of the District Housing Association for the first instance, and it is difficult to view that the plaintiff or U.S. General Construction did not have the rights to join the association in the form of book, and it is difficult to conclude that the plaintiff or U.S. General Construction deposited money for the purpose of joining the association of the first instance and issuance of the certificate to the committee for the first instance court for the first instance of this case without any specific evidence that the plaintiff had been issued the certificate under his/her name and issuance of the certificate under his/her name.

Therefore, without any need to examine the remainder of the Plaintiff’s primary and conjunctive claims on the premise that the Plaintiff or U.T. paid a membership fee to the Defendant Promotion Committee and issued a certificate of joining each of the instant housing group, and the Defendant Promotion Committee entered into a partnership agreement with the Defendant.

4.In conclusion

Therefore, the plaintiff's primary claim against the defendants is dismissed as it is without merit. The judgment of the court of first instance is just, and the plaintiff's appeal against the defendants is all dismissed, and the plaintiff's preliminary claim against the defendants added in the trial is all dismissed. It is so decided as per Disposition.

Judges

Judges Kim Il-tae, Counsel for the defendant

Judge Lee Jin-jin

Judges Lee Jae-eng

심급 사건

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