Plaintiff (Attorney Lee Jin-jin, Counsel for the plaintiff-appellant)

Defendant (Attorney Yoon Young-young, Counsel for the defendant-appellant)

October 8, 2010

Seoul Western District Court Decision 2009Gahap2200 Decided December 24, 2009

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked.

The defendant shall pay to the plaintiff 30 million won with 5% interest per annum from June 13, 2006 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of full payment.

1. Basic facts

A. On June 3, 2006, the Plaintiff concluded a sales contract to purchase a housing site with an area of less than 330 square meters, or an apartment site with an area of less than 135 square meters, located within an urban development project district of Pyeongtaek New Town No. 3-2, which is executed by E.S., in the new town real estate brokerage office operated by Nonparty 2 (hereinafter “the sales contract of this case”). The Plaintiff concluded a sales contract to purchase the right to E.S. (hereinafter “the sales contract of this case”).

B. On June 3, 2006 and June 5, 2006, the Plaintiff paid the down payment of KRW 10 million on two occasions, and on June 12, 2006, paid the remainder amount of KRW 290 million under the instant sales contract.

C. Around June 7, 2007, E.S. notified Nonparty 1 of the fact that Nonparty 1 reselled the right of sale, which was subject to non-party 1’s decision to be disqualified for the supply of apartment units for sale.

[Ground of recognition] Gap evidence Nos. 3 through 9, 11, non-party 3's testimony, Eul evidence No. 9, each fact-finding with respect to the Seoul Es. Corporation of the court of first instance and the court of first instance, the purport of the whole pleadings as a whole.

2. Judgment on the Plaintiff’s assertion of restitution

A. The parties' assertion

(1) The plaintiff's assertion

The seller of the instant sales contract is the defendant. The defendant's obligation to transfer the ownership of the ownership of the ownership of the ownership of the ownership of the ownership of the ownership of the ownership of the ownership of the ownership of the ownership of the ownership of the ownership of the ownership of the ownership of the ownership of the ownership of the ownership of the ownership of the ownership.

Accordingly, the Plaintiff rescinded the instant sales contract by serving the duplicate of the instant complaint, and the Defendant is obligated to return to the Plaintiff the purchase price of KRW 300 million received from the Plaintiff due to the original impossibility or cancellation of the instant sales contract.

Even if Nonparty 2 entered into the instant sales contract without obtaining the power of representation from the Defendant, it subsequently ratified the instant sales contract by granting receipts to the Plaintiff at the same time as the Defendant received any balance under the instant sales contract from the Plaintiff, and thus, the Defendant is not obliged to pay the Plaintiff the duty to restore the original impossibility or termination of the instant sales contract.

(2) The defendant's assertion

The party to the contract of this case is not only the non-party 2, but also the defendant has not granted the right of representation to the non-party 2 as to the contract of this case. Thus, the defendant cannot respond to the plaintiff's claim for cancellation of the contract of this case

Even if it is not so, the defendant has completed all the obligation as a purchaser under the contract of this case, and even if the defendant is unable to perform his obligation under the contract of this case, there are no causes attributable to the defendant. Thus, the plaintiff cannot respond to the claim of this case.

B. As to who the party to the instant sales contract is the party

(1) Facts of recognition

(A) On May 12, 2006, Nonparty 1 sold to the Defendant or Nonparty 2 the sales right of this case at KRW 240 million (hereinafter the instant first sales contract).

(B) Upon Nonparty 1’s request, the Defendant remitted to Nonparty 4 a total of KRW 50 million, including KRW 10 million on May 12, 2006 and KRW 40 million on May 15, 2006.

(C) The seller’s name and resident registration number are indicated in the sales contract of this case, but the defendant’s seal is not affixed. The seller’s representative’s name and Nonparty 2’s seal is indicated in the seller’s representative’s name and then Nonparty 2’s seal is affixed.

(D) The Plaintiff and Nonparty 2’s employees Nonparty 5 were present at the conclusion site of the instant sales contract, and the Defendant and Nonparty 2 were not present.

(E) On June 3, 2006, the Plaintiff paid 2 million won out of the down payment of KRW 10 million under the instant sales contract to Nonparty 5, which was the date of the contract, on June 3, 2006, and remitted the remaining down payment of KRW 8 million to the Defendant’s account on June 5, 2006.

(F) On June 12, 2006, the Plaintiff paid the remainder of KRW 290 million under the instant sales contract to the Defendant or Nonparty 2. The Defendant or Nonparty 2 paid the remainder of KRW 190 million to Nonparty 1 in the same place.

(G) On June 12, 2006, the Defendant prepared and issued a receipt to the Plaintiff that received the remainder KRW 290 million under the instant sales contract.

[Ground of recognition] Gap evidence Nos. 1 through 9, 11, non-party 3's testimony, Eul evidence No. 9, and each fact-finding with respect to Seoul SP Corporation at the court of the first instance and the court of the first instance, the result of each financial transaction submission order with the Korean bank and the Korean bank, the purport of the whole pleadings as a whole.

(2) Determination:

In full view of the facts established above and the following circumstances, the seller of the instant sales contract is the defendant, and the evidence submitted by the defendant alone is insufficient to recognize that the party to the instant sales contract is Nonparty 2, not the defendant, and there is no other evidence to prove otherwise.

(A) Although the Defendant’s seal is not affixed to the buyer’s column of the instant sales contract, the Defendant’s name and the Defendant’s resident registration number are indicated in the buyer’s column, and Nonparty 2 is indicated as the seller’s agent.

(B) On June 12, 2006, the Defendant attended the place of payment of the remainder under the instant sales contract and prepared and delivered a receipt (Evidence A6) for the payment of the remainder of the instant sales contract to the Plaintiff.

(C) The Defendant asserted that, upon Nonparty 2’s request, the remainder of the instant sales contract was temporarily present at the place of payment of the remainder of the instant sales contract for the purpose of lending the remainder of the instant sales contract to Nonparty 2, and that it did not attend the said balance payment site as the party to the sales contract. However, the Defendant’s assertion that a monetary lending and lending relationship was conducted for the purpose of financing funds between the Plaintiff and several minutes in the situation where the payment of the balance of the sales contract was made at the same time.

(D) The Defendant asserts that Nonparty 2 lent KRW 50 million to Nonparty 2 on May 12, 2006 and KRW 1900 million on June 12, 2006. However, if the Defendant’s assertion was not only accurately consistent with the purchase price under the first sale contract, Nonparty 2 entered into the first sale contract under the circumstances where he did not have any money, and that Nonparty 2 entered into the first sale contract of this case in light of the form and process of concluding the first sale contract or the real estate sale contract.

(E) The Defendant directly transferred KRW 8 million out of the down payment under the instant sales contract from the Plaintiff, and the above KRW 8 million from the Defendant’s payment to Nonparty 2 as interest for KRW 50 million from May 12, 2006 to June 5, 2006, the amount is too large.

(F) According to the evidence Nos. 3 and 8 of this case, it is recognized that Nonparty 2 forged the Plaintiff’s name stated in the seller’s column of the sales contract of this case from the Seoul Western District Court on October 19, 2009. However, in light of the above summary order’s circumstance that, rather than the disadvantage of Nonparty 2 under the above summary order, it is much more likely that the Defendant’s benefit from the Defendant’s exemption of the obligation under the sales contract of this case is much more than the disadvantage of the above summary order, the above summary order alone is insufficient to recognize the Defendant’s assertion that Nonparty 2 is not the Defendant.

C. Judgment on the Plaintiff’s assertion

Before examining whether the power of representation exists in relation to the instant sales contract to Nonparty 2, and whether the Defendant ratified Nonparty 2’s act of acting as an agent, it is necessary to examine whether the instant sales contract becomes null and void as an original impossibility, or whether there exists any nonperformance of obligation, impossibility of performance, or any cause attributable to it in relation to the instant sales contract.

(1) As to whether the Defendant’s obligation to perform is a primary impossibility

Although Article 39 (1) 4 of the former Housing Act (amended by Act No. 9405 of Feb. 3, 2009; hereinafter the same), Article 43 (1) 2 of the Enforcement Decree of the Housing Act (amended by Act No. 9405 of Feb. 3, 2009); however, the relevant provisions of the former Housing Act, etc. are merely a mere regulation, not an effective regulation, and thus, the Defendant’s obligation pursuant to the instant sales contract cannot be deemed as an original impossibility solely on the ground that the above provisions were violated.

(2) As to the defendant's default or non-performanceability

In light of the circumstances, etc. of the object of the instant sales contract, which is a kind of expectation right for the right to purchase in the future, not the right to purchase in the future, the seller of the instant sales contract is sufficient to transfer the right to purchase in the future and is not responsible for the buyer’s acquisition of the right to purchase in the future. In such a case, the seller in such a case will transfer documents related to the right to purchase in the first place to the buyer to complete the fulfillment of the obligation under the sales contract for the right to purchase in the future, and the risk from failure to acquire the right to purchase in the purchase in the future will be fully borne by the buyer.

However, in full view of each of the statements and arguments set forth in subparagraphs 1 through 3 above, it can be acknowledged that the defendant transferred documents related to the ownership of the instant water delivered by Nonparty 1, the prospective purchaser, such as the transfer of obstacles, etc. and the removal contract, to the plaintiff. The evidence submitted by the defendant alone is insufficient to recognize that the defendant did not complete the obligation as the seller of the instant sales contract, or that the above obligation of the defendant was subsequently impossible, and there is no other evidence to acknowledge otherwise.

In addition, even if the obligation of the defendant under the instant sales contract was subsequently impossible, there is a cause attributable to the debtor to cancel the contract with the debtor, and the evidence submitted by the plaintiff alone is insufficient to recognize the existence of a cause attributable to the defendant in relation to the impossibility of performance of the defendant under the instant sales contract, and there is no other evidence to prove otherwise.

(d) Conclusion

As above, inasmuch as it cannot be recognized that the Defendant did not perform the obligation under the instant sales contract, or that the Defendant’s obligation was in the original or ex post facto impossibility, the Plaintiff’s claim for the refund of the purchase price paid by the Plaintiff on the premise of restitution is without merit without further review.

3. Determination on the Plaintiff’s assertion of unjust enrichment or tort

A. The parties' assertion

(1) The plaintiff's assertion

Even if the Defendant is not a seller of the instant sales contract, it received the instant sales price from the Plaintiff and made unjust enrichment, or in collusion with Nonparty 2, 5, etc., deceiving the Plaintiff as if the parties to the instant sales contract were themselves not Nonparty 2, thereby inducing the Plaintiff to conclude the instant sales contract, thereby obtaining the amount equivalent to the sales price from the Plaintiff.

Therefore, the defendant is obligated to return the purchase price received from the plaintiff to the defendant or compensate the plaintiff for the damages caused by the conclusion of the contract of this case.

(2) The defendant's assertion

The Defendant is not able to comply with the Plaintiff’s claim on the grounds that the Defendant unjust enrichment from the Plaintiff or deceptiond the Plaintiff regarding the conclusion of the instant sales contract.

(b) Markets:

As seen above, the seller of the sales contract of this case is not Nonparty 2 but Defendant more than Nonparty 2, and the Plaintiff’s unjust enrichment or claim for damages on the premise that Nonparty 2 is the seller of the sales contract of this case is without merit.

4. Conclusion

The plaintiff's claim of this case is dismissed as it is without merit. The judgment of the court of first instance is just and the plaintiff's appeal is eventually without merit, and it is dismissed as per Disposition.

Judge crude oil (Presiding Judge)