2014 Gohap 36219 Damage, etc.

A

1. B

2. C

April 30, 2015

4, 2015

1. The plaintiff's claims against the defendants are all dismissed.

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

The defendants jointly pay to the plaintiff 24,300,000 won with 20% interest per annum from the day after the delivery date of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. The D Regional Housing Association (hereinafter referred to as the “Association”) is a regional housing association established on November 17, 2008 under the Housing Act for the purpose of promoting the business of new construction of a main multi-use apartment in Dongjak-gu Seoul, Dongjak-gu. The Defendant C is a non-official director of the association of this case who controlled the practice of the association, such as recruitment of union members, receipt of union contributions, and management of various documents by assisting the president of the association. The Defendant B was registered as a brokerage assistant at the H’H real estate located in Dongjak-gu Seoul Metropolitan Government, and was requested by the association of this case to recruit union members from the association of this case.

B. Joining the Plaintiff’s association

(1) On January 4, 201, the Plaintiff agreed to join the instant association with I as the introduction of I, and entered into an agreement with Defendant C, who represented the Defendants at the place of the instant association, to pay the Plaintiff a sum of KRW 180,000,000,000, and KRW 10,300,000, and KRW 200,30,000,000, in total, for land registration expenses (hereinafter “the instant subscription money”) (hereinafter referred to as “the instant agreement”).

(2) Pursuant to this, on January 4, 201, the Plaintiff paid the Defendants KRW 100,000,000 out of the subscription money of this case, and KRW 100,300,000 as the check on January 6, 201, and on January 6, 2011, Defendant C received KRW 200,300,000 from the Plaintiff as the partnership contributions upon the Plaintiff’s accession. The Plaintiff prepared and issued a receipt for the custody of the Plaintiff’s union members on June 29, 2009 under the name of the instant association.

(3) Of the above checks paid as the instant subscription money, KRW 103,00,000, out of the said checks were delivered to Defendant C’s sentence as the repayment of the loan obligation to J of the instant union, and KRW 86,000,000 was delivered as the repayment of the service payment obligation to K of the instant union to L or its employee, the representative of K of K Co., Ltd., and KRW 6,000,000,000, by N on January 10, 2011.

The payment system was proposed by Samsung Securities.

C. On January 6, 2011, the Plaintiff transferred KRW 24,000,000 to the I’s account under the pretext of premium related to the conclusion of the instant association subscription agreement (hereinafter the instant additional amount), and I transferred KRW 18,650,000 out of the instant additional amount to the Defendant B’s account on the same day.

D. However, the Plaintiff did not meet the requirements to reside in Seoul for at least six months as of the filing date of the application for authorization to establish a partnership among the requirements necessary for joining the association under the rules of the instant association, and was not eligible to become a member of the instant association. In fact, the Plaintiff did not have been registered on the list of members of the instant association.

E. On February 9, 2012, the Plaintiff filed an application with the instant association for a payment order of KRW 190,300,000,000, deducting the operating expenses of the association from the amount of KRW 200,300,000 (Seoul Central District Court 2012 tea8509) and the payment order was issued on February 21, 2012 and became final and conclusive March 13, 2012. In addition, on March 9, 2012, the Plaintiff loaned the instant association KRW 200,300,000 with interest rate of KRW 10% per annum, and the Plaintiff was issued and issued a notarial deed stating that the instant association is not subject to compulsory execution if the said union fails to perform its repayment obligations.

F. Meanwhile, F, the president of the instant association, was arrested on November 16, 2012, and was indicted on December 5, 2012, and convicted on conviction after being indicted on the charges of committing the following facts: “F, the president of the instant association, embezzled approximately 13 billion won of the funds owned by the instant association, including money received from its members as a contribution, from around December 29, 2005 to October 17, 201, and received an unjust solicitation from the union members to the effect that he/she would be entitled to subscribe for membership, and received money and valuables in relation to the management of the association affairs,” and was arrested on December 16, 2012, and was indicted on December 5, 2012 (Seoul Central District Court Decision 2012Da1701, Seoul High Court 2013No3959, and Supreme Court Decision 1745).

[Reasons for Recognition] In the absence of dispute, Gap evidence Nos. 1, 2, 4 through 10, 29 through 24, Eul evidence Nos. 1 and 1 (including branch numbers in the case of additional numbers), the result of the financial transaction information reply to the new president of this court on February 2, 2015, and the purport of the whole pleadings

2. The plaintiff's assertion

A. In mediating the membership agreement of the association of this case, Defendant B, as a broker, knew the Plaintiff as if he were able to join the association of this case due to the failure to inform the Plaintiff of the qualification requirements under good manager. ② The association of this case did not notify the Plaintiff that it was difficult for the Plaintiff to promote the new construction project normally due to F’s embezzlement. ③ The membership agreement of the association of this case is a contract with the succession of the status of the union member. It does not confirm and supervise who succeeds to the membership agreement of this case and whether the principal succeeded to the membership fee of this case and the additional amount of 200,300,000 won and additional amount of 24,30,000,000 won and additional amount of 204,30,300,000 won, and caused damages to the Plaintiff pursuant to Article 204 of the former Licensed Real Estate Agents Act and Article 30 of the former Licensed Real Estate Agents Act (amended by Act No. 2014, Apr. 27, 2019).

B. In fact, Defendant C failed to meet the Plaintiff’s qualification requirements for membership of the instant case, and the instant Article

The aggregate is a situation where it is difficult for the Plaintiff to normally promote the new apartment construction project due to the F embezzlement, etc., and even though the Plaintiff was unable to perform the instant association membership agreement, which is aimed at succeeding to the status of the union member, but was unable to perform the instant association membership agreement, the Plaintiff could join the instant association in a manner that succeeds to the status of the union member and purchase apartment units, thereby deceiving the Plaintiff to enter into the instant association membership agreement and obtaining the Plaintiff KRW 224,30,000 in total of the subscription money and additional money, the Defendant C is obligated to pay the Plaintiff the above KRW 224,30,000 and delay damages pursuant to Article 750 of the Civil Act.

3. Judgment on Defendant B’s main defense of safety

Defendant B filed the instant lawsuit seeking the payment of the said money against the Defendants, as the Plaintiff did not receive any refund of the said money from the instant association, even though it was prepared and issued a notarial deed for a monetary loan for consumption to the effect that the Plaintiff received a payment order and received compulsory execution in order to refund the said money and the additional money. The instant lawsuit constitutes an abuse of the right of lawsuit, and thus, constitutes an unlawful defense.

On the other hand, the plaintiff received a payment order and a notarial deed for a monetary loan from the union of this case against the plaintiff and the plaintiff's lawsuit against the defendants are different. Thus, just because it is alleged by the defendant, the lawsuit of this case was instituted solely for the purpose of coercing the defendants, and it cannot be viewed as a violation of the principle of good faith or an abuse of power. The defendant's defense is without merit.

4. Determination on the merits of the case

① The Plaintiff is a partner of the instant association, the subject matter of the instant association membership agreement

The issue of whether the Plaintiff satisfies the requirements for membership of the association of this case is the most basic factor in the conclusion of the agreement to join the association of this case. Thus, it is difficult for an intermediary to easily conclude that the broker would not deceive or explain the requirements for membership of the association of this case. ② In addition, the requirements for membership of the association of this case could not be difficult to determine whether the contents of the agreement are simple and objective elements are met solely. ③ At the time of the conclusion of the agreement to join the association of this case, the Plaintiff formed a cover of the term 'Ilstm' in relation to the conclusion of the agreement to join the association of this case, and the Plaintiff also paid the additional amount under the pretext of a premium in relation to the conclusion of the agreement to join the association of this case. In light of such circumstances, the evidence submitted by the Plaintiff alone is insufficient to acknowledge the facts of deception as to the Plaintiff’s head, and there is no evidence to support this part of the Plaintiff’s assertion.

B. Determination on the non-disclosure of the progress of the project

Each statement in Gap evidence Nos. 14 through 18 alone is insufficient to recognize that the instant association was in a situation where it was difficult for the instant association to normally promote the new apartment construction project due to the financial shortage at the time of entering into the instant association’s subscription agreement, and there is no other evidence to acknowledge it otherwise. Rather, in full view of the purport of the entire pleadings, the instant association obtained conditional consent on December 28, 2010 from the Seoul Building Committee for the new apartment construction project, and obtained a loan of KRW 270 billion with the business funds from the financial institution on March 26, 2012 under the guarantee of treatment and construction of a stock company, a contractor, as of June 9, 2012.

Even if the instant association was unable to normally promote the new apartment construction project because it was out of financial difficulties due to the embezzlement, etc. of F, the president of the instant association at the time of entering into the instant association agreement, considering the following circumstances, namely, the point at which the time when the instant association was unable to repay loans that it received in connection with the instant association’s new apartment construction project at maturity on March 26, 2012, and the point at which F was arrested and prosecuted after November 16, 2012, by taking into account the following circumstances, such as: (a) the point at which the time when the instant association was unable to repay the loans that it received in connection with the instant new apartment construction project at maturity; and (b) the point at which the F embezzled the funds of the instant association on or after November 16, 2012, the Defendants

Therefore, the plaintiff's assertion on this part is without merit.

C. Determination on the assertion of deceiving the status of union members

① The agreement to join the association of this case is concluded between the plaintiff and the association of this case. The plaintiff paid the membership fee of this case, which is the consideration for joining the association of this case. ② The receipt prepared and issued by the plaintiff after the plaintiff paid the membership fee of this case to the association of this case. ③ The date on which the above receipt was made was entered retroactively on June 29, 2009. It is difficult to view that the plaintiff and the plaintiff agreed to succeed to the status of the member of the association of this case. ④ Some of the additional amount of this case were paid to the association of this case, which is the consideration for joining the association of this case. However, the plaintiff did not assert that the plaintiff paid the additional amount to the association of this case to the succeeding member of the association of this case, considering the interest of the plaintiff and the financial interest of the succeeding member of the association of this case. However, according to the plaintiff's assertion that the additional amount was not sufficient to recognize the plaintiff's subscription fee of this case.

D. Sub-committee

As above, insofar as the Defendants’ act of deception or illegality is recognized, as alleged by the Plaintiff, the Plaintiff’s assertion is without merit, without further review.

5. Conclusion

Therefore, the plaintiff's claim against the defendants is dismissed as it is without merit. It is so decided as per Disposition.

Judges Presiding Judge;

Judges Jin Jae-Gyeong

Judges Nong-ju