2017Na61586 Return of deposit

A

Esdiba Co., Ltd.

Seoul Central District Court Decision 2017 Ghana501464 Decided August 22, 2017

June 27, 2018

July 16, 2018

1. Of the judgment of the court of first instance, the part against the plaintiff ordering payment in paragraph 2 below shall be revoked.

2. The defendant shall pay to the plaintiff 22,00,000 won with 5% interest per annum from March 1, 2017 to June 9, 2017, and 15% interest per annum from the next day to the day of complete payment.

3. The plaintiff's remaining appeal is dismissed.

4. All costs of the lawsuit are borne by the Defendant.

5. Paragraph 2 can be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 22,00,000 won with 15% interest per annum on March 1, 2017 until the day of full payment.

1. Determination as to the cause of claim

(a) Facts of recognition;

The following facts are either disputed between the parties, or there is no dispute between the parties, and the authenticity of the entire document is presumed to have been established due to the lack of dispute in the stamp image portion of the defendant. The defendant asserts that the employee of the committee for promotion of the non-party 1's name, sub-party 2's name, sub-party 2's name and sub-party 2's name (hereinafter referred to as the "committee for promotion of this case"), but there is no evidence to acknowledge it. However, it can be acknowledged by considering the whole purport of the pleadings

1) The instant promotion committee is a committee that promotes the establishment of the Doo-dong District Housing Association (hereinafter referred to as the “instant association”) for the purpose of implementing the Doo-dong District Housing Association for the main complex construction project (hereinafter referred to as the “instant project”). On June 2015, the Defendant concluded an agency service contract with the instant promotion committee and the Defendant for the provision of services as the agent of the instant project.

2) On April 3, 2016, the Plaintiff joined the instant association as a member between the Defendant and the instant promotion committee, and delegated the business-related affairs of the instant case to the Defendant and the Defendant to act on behalf of the Defendant, and to bear KRW 681,398,000, and to bear KRW 22,00,000,000, the cooperative contributions to the association, and the agent business-related affairs of the instant association (hereinafter referred to as “the affiliate membership and the cooperative agent agreement”).

The contract of this case was entered into, and its main contents are as follows.

Article 7 (Liability for Agency Expenses) (3) The agency expenses shall not be subject to separate accounting procedures for the agency fees as from the date when the plaintiff applied for the joining of the partnership until the time when the plaintiff moved into the partnership, and the plaintiff shall not file any claim or objection, such as the refund thereof, to the promotion committee of this case and the contractor.Article 8 (Refund of Membership's Withdrawal) (1) When the plaintiff intends to withdraw from the partnership, he/she shall file an application in accordance with the prescribed form of the partnership before one month, and only the principal of the union contributions shall be refunded among the union members, and the agency expenses shall not be refunded if he/she has paid the union contributions by a new member who takes over the plaintiff's rights and duties.Third, with respect to the withdrawal of the union members due to gross negligence in the event of a parcelling-out, he/she shall immediately undergo the procedures for refund of the entrance fees and the agency expenses, and the period shall not exceed ten days

3) On the other hand, the instant contract (No. 2) states, separate from the above contract content, that “the above household shall receive district units by December 31, 2016, grant authorization for establishment, and complete refund conditions (including business promotion expenses) upon failure to receive construction deliberation,” and the Defendant’s seal is affixed on the side.

4) The Plaintiff paid 100,139,800 won, totaling KRW 78,139,800, and totaling KRW 22,00,000,00, according to the schedule stipulated in the instant contract.

5) Even after the lapse of December 31, 2016, the Plaintiff did not proceed with the procedures such as receipt of district units and authorization for establishment of cooperatives with respect to the instant business. Around January 2017, the Plaintiff requested the Defendant and the instant promotion committee to refund the association members contributions and agency expenses already paid to the Defendant and the instant promotion committee. Accordingly, the instant promotion committee paid KRW 78,139,800 to the Plaintiff on January 17, 2017, but did not pay KRW 22,00,000 to the Plaintiff.

(b) Markets:

According to the above facts, it is reasonable to view that the Defendant: (a) at the time of entering into the instant contract with the Plaintiff at the time of entering into the instant contract, entered into a special agreement to refund the Plaintiff’s union members’ contributions and the total amount of agency expenses paid by the Plaintiff if the procedures, such as receipt of district unit, authorization for establishment, and receipt of construction deliberation, do not proceed with the instant contract by December 31, 2016; and (b) the procedures, such as receipt of district unit and authorization for establishment, were not underway with respect to the instant project by December 31, 2016 as stipulated in the said special agreement; (c) accordingly, the Defendant is liable to pay the Plaintiff delayed payment of KRW 22,00,000 as the Plaintiff claimed after the date of filing the Plaintiff’s claim for payment; (d) from March 1, 2017 to June 9, 2017, the next day to June 15, 2017, which is the date of delivery of a copy of the complaint of this case.

2.In conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. Since the judgment of the court of first instance is unfair with a different conclusion, the part against the plaintiff falling under the above part of recognition among the judgment of the court of first instance is revoked, and the payment of the above money is ordered to the defendant, and the remaining appeal of the plaintiff is dismissed as it is so decided as per Disposition.

Judges Park Jae-uri, Counsel for the defendant

Judges Yoon Sung-he

Effect of the judge's lectures