Plaintiff (Law Firm Sejong, Attorneys Choi Ho-ho et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm U&S, Attorneys Jeon Tae-gu et al., Counsel for the defendant-appellant)

March 6, 2013

Seoul Northern District Court Decision 201Gahap4371 Decided May 30, 2012

1. The part against the plaintiff corresponding to the money ordered to be paid under the judgment of the court of first instance shall be revoked.

The defendant shall pay to the plaintiff 58,00,000 won with 5% interest per annum from March 4, 2004 to April 3, 2013, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. Of the total litigation costs, 60% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

4. The part ordering a payment of money under paragraph (1) may be provisionally executed.

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff the amount of KRW 145,00,000 with 5% per annum from March 4, 2004 to the service date of a duplicate of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

1. Facts of recognition;

The following facts are not disputed between the parties, or each entry in Gap evidence Nos. 5, 6, Eul evidence Nos. 1 through 5, and 7 (including a serial number), the testimony of Non-party 2 of the first instance witness, and the fact inquiry into the Korea Land and Housing Corporation in the trial, and the whole purport of the arguments.

A. The Korea Land and Housing Corporation (ever the Korea Land and Housing Corporation) has implemented relocation measures while implementing a housing site development project. The contents were that it grants a house owner, etc. the right to purchase a housing site, apartment house, commercial building, etc. created by the housing site development project within the housing site development zone. In order to purchase a housing site among the above relocation measures, a person subject to relocation measures who meets the selection criteria applies for the sale of a housing site between October 30, 2003 and November 29, 2003, and after confirming the housing site by lot, a contract for sale of a housing site should be concluded with the Korea Land and Housing Corporation from November 20 through 24, 206 to November 24, 2006. In addition, the Korea Land and Housing Corporation allowed a change of the name of the purchaser only once from the conclusion of the sale contract to the transfer of ownership in relation to the resale of the housing site ownership, and the transferor should directly inform the purchaser of the change of the name to the name of the purchaser.

B. On November 2003, the defendant applied for the sale of a housing site to the Korea National Housing Corporation. On February 20, 2004, the plaintiff and the defendant sold the right to purchase the housing site in the future (hereinafter "right to purchase the housing site") to the plaintiff as a brokerage of Nonparty 2, and the defendant sold the right to purchase the housing site in the future as relocation measures to the plaintiff. However, even if the plaintiff resells the right to purchase the housing site to a third party due to the plaintiff, the defendant recognized it and provided necessary documents, such as a certificate of seal impression at the time of transaction (hereinafter "the sales contract of this case"). On the same day, the plaintiff was paid the down payment amount of KRW 20 million,000,000, and the balance of KRW 125,000,000 from March 3, 2004, respectively.

C. Upon receiving any balance from the Plaintiff, the Defendant delivered the Plaintiff documents necessary to secure the right to sell the instant land, including a certificate of personal seal impression, a certified copy of resident registration, a certificate of renunciation of right, and a certificate of transfer of right (hereinafter “instant delivery documents”). The Plaintiff asserted that the instant delivery documents were not received, but there is little possibility that the Plaintiff would have paid the remainder in full without securing the documents necessary to secure the right to sell, and Nonparty 2’s testimony by Nonparty 2, the Plaintiff’s receipt of the instant delivery documents can be sufficiently recognized).

D. On April 28, 2005, the Defendant issued to Nonparty 3 documents, such as a sales contract, a certificate of personal seal impression, and a resident registration certificate concerning the right to sell the instant land at the request of Nonparty 2, claiming that the Defendant was delegated the resale of the instant right by the Plaintiff. At the time, the Defendant confirmed that Nonparty 2 had the delivery documents of this case issued by himself to the Plaintiff, and recovered them, but did not confirm whether the Plaintiff’s power of delegation or the original copy of the instant sales contract was possessed.

E. On September 18, 2006, the Defendant attended the lot of housing site held with the Korea National Housing Corporation and opened the lot number D28 housing site by drawing, and on November 24, 2006, concluded a sales contract with the Korea National Housing Corporation for the said housing site.

F. On January 17, 2008, the defendant prepared a sales contract and a contract for succession of the right and duty of land to the non-party 1 who purchased the right and duty of sale in this case from the non-party 3, and confirmed the transfer of the right and duty of sale by visiting the Korea National Housing Corporation, and completed all procedures for change of the name of the purchaser of the above housing site. As a result, the name of the purchaser was changed in the non-party 1's name

2. Defendant’s liability to refund the purchase price

A. Determination on the cause of the claim

According to the above facts, the defendant is obligated to complete the procedure for changing the name of the buyer with respect to the instant housing site in accordance with the sales contract of this case, and since the defendant completed the procedure for changing the name of the buyer with respect to the instant housing site to Nonparty 1, the execution of the procedure for changing the name of the buyer was impossible in the future of the plaintiff by social norms, the plaintiff may cancel the sales contract of this case on the ground of impossibility of performance. On the other hand, the fact that the complaint of this case, which stated the plaintiff's declaration of intent to cancel, was delivered to the defendant is apparent in the record, so the sales contract of this case was lawfully rescinded. Accordingly, the defendant is obligated to return the purchase price of this case to the plaintiff following the cancellation, barring any special circumstance, to the plaintiff, the amount of KRW 145,00,

B. Judgment on the defendant's argument

(1) The Defendant, upon receiving any balance from the Plaintiff, provided all documents that the Plaintiff alone could perform the procedure for changing the name of the buyer, such as the instant documents for the delivery of this case. Thus, the Defendant asserted that all obligations under the instant sales contract were fulfilled.

The plaintiff does not have any evidence to acknowledge that only the documents issued by the defendant can independently perform the procedure for changing the name of the buyer (as seen earlier, in order to change the name of the buyer, it can be recognized that the subject and the transferee of the housing site visit the buyer and the transferee to the buyer, and that the transferee cannot take the procedure for changing the name alone without attending the transferor). Even if the plaintiff can independently take the procedure for changing the name of the buyer, the defendant's act, i.e., the defendant's act is impossible to perform the contract of this case due to the defendant's act of changing the name of the buyer in the third party, and therefore, the defendant is liable for nonperformance. Therefore, the above argument by the defendant is without merit.

(2) In concluding the instant sales contract with the Plaintiff, the Defendant agreed with the special agreement that “if the Plaintiff resells the instant sales right to a third party, the Plaintiff recognized the transaction and actively cooperate with the documents, such as a certificate of seal imprint at the time of transaction.” Nonparty 2 believed that Nonparty 2 had the right to dispose of the instant sales right on behalf of the Plaintiff to Nonparty 3 on behalf of the Plaintiff, and issued documents, such as a sales contract, a certificate of seal imprint, a resident registration certificate, etc., to Nonparty 3, and completed the procedure for changing the name of the buyer to Nonparty 1 who acquired the instant sales right from Nonparty 3. Thus, the Defendant’s act constitutes a repayment of the claim under Article 470 of the Civil Act or an expression representation under Article 125, 126, or 129 of the Civil Act.

The facts that Nonparty 2 did not possess the Plaintiff’s power of delegation and the sales contract delivered by Nonparty 2, and only delivered the documents of this case to the Plaintiff, as seen earlier, cannot be deemed as a quasi-Possessor of a claim. Nonparty 2 cannot be deemed as a quasi-Possessor of a claim, and there is no negligence or there is no justifiable reason for believing that Nonparty 2 had the right of representation, and there is no other evidence to acknowledge this otherwise. Accordingly, this part of the Defendant’s assertion is without merit.

(3) Lastly, the defendant asserts that the defendant's liability should be considerably restricted since the plaintiff's failure to properly manage the delivery documents of this case from the defendant occurred due to gross negligence.

On the other hand, if the plaintiff properly managed the delivery document of this case without being entrusted to the non-party 2, it seems that the defendant trusted the non-party 2 and did not complete the procedure for the change of the name of the purchaser in the non-party 1. ② The plaintiff was aware of the date and time of the lot of housing site, the period of the contract for the sale of housing lots, and the timing of the change of the name of the purchaser, as long as the plaintiff paid the purchase price in full and purchased the right of the sale in the non-party 1. However, after the conclusion of the contract of this case, the procedure for the change of the name of the purchaser in the non-party 1 is over four years until the execution of the procedure for the change of the name of the purchaser in the non-party 1 (the period until the execution of the procedure for the change of the name of the purchaser in the non-party 1 is more than one year). The defendant was not obliged to make any effort or legal measures to secure the right of sale in the non-party 1's name.

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 58,00,000 won (145,000,000 won x 40%) and damages for delay calculated by the rate of 5% per annum as stipulated by the Civil Act from March 4, 2004 to April 3, 2013, which is the date of the decision that the defendant's dispute is a considerable amount of appeal from March 4, 2004, and 20% per annum as stipulated by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment. Thus, the plaintiff's claim of this case is accepted within the above scope of recognition, and the remaining claims shall be dismissed as it has no reason.

Therefore, the part of the part against the plaintiff of the judgment of the court of first instance which partially different conclusions is unfair, and thus, the appeal by the plaintiff is partially accepted and the defendant is revoked and the defendant is ordered to pay the above amount. Since the remaining part of the judgment of the court of first instance is legitimate, the plaintiff's appeal against this is dismissed as it is without merit. It

Judges Kim Jong-soo (Presiding Judge)