[1] The case holding that the right to sell an apartment under a trust contract belongs to the trustee because the ownership of the apartment is entirely transferred to the trustee inside and outside the country

[2] The case holding that where a truster entrusted with the sale of an apartment unit entrusted by a trustee for the sale of an apartment unit for payment in kind concludes a sales contract for the payment in kind, it is not an act within the scope of the power of representation

[1] The case holding that the right to sell an apartment is also vested in the trustee because the ownership of the apartment under a trust contract has been fully transferred to the trustee inside and outside the country

[2] The case holding that in case where a construction company and a trust company which is a trustee agreed to sell apartment units as joint project undertakers, and a trust company which is a trustee agrees to sell apartment units as joint project undertakers, the construction company which is a joint project proprietor, and a trust company which is a trustee enters into a sales contract using the contract, and the construction company which is a trustee enters into the sales contract, and the trust company which is a trustee, signed the sales contract using the contract, and the trust company which is a trustee, has received the seal of the representative director, and directly received the sales price, if the construction company which is a trustee independently concludes the sales contract and directly receives the sales price, the trust company as a trustee has a reasonable ground to believe that the trust company has the authority to sell the apartment units to the creditor by payment of the bond in kind.

[1] Article 186 of the Civil Act, Article 1 of the Trust Act / [2] Articles 118 and 126 of the Civil Act, Article 1 of the Trust Act

Note Real Estate Trust Co., Ltd. (Law Firm Sejong, Attorneys Lee Ho-ro et al., Counsel for the plaintiff-appellant)

Dispatch Infant Care Center (Attorney Lee Byung-chul, Counsel for the defendant-appellant)

Seoul High Court Decision 2000Na2551 delivered on August 30, 2000

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. Summary of the judgment of the court below

A. Facts of recognition

(1) The defendant sold the forest land of KRW 7,233 square meters to the housing of Ansan-si Co., Ltd. (hereinafter referred to as the "Masan-si"), and paid KRW 100 million out of the price, and the remaining KRW 500 million is agreed to substitute for the management of infant and child-care facilities on the apartment where the housing of Ansan-si is to be constructed. The housing of Ansan-si shall commence new construction with the approval of the business plan in order to newly build and sell two 1,091 square meters above the forest land purchased from the defendant and 1,091 square meters on the land of the same Eup/Myeon located adjacent thereto (hereinafter referred to as the "the apartment of this case"), and began to sell it from March 197.

(2) On May 9, 1997, Ansan Housing entered into a land trust agreement with the Plaintiff for the purpose of financing construction funds, and its main contents are as follows: the apartment building in this case is constructed with the operator of the building in Ansan Housing (Articles 3 and 4 of the Trust Contract and the Special Agreement); the Plaintiff may sell the trust property under the sale price and conditions stipulated in the business plan; the Plaintiff shall bear the construction cost, etc. necessary to carry out the trust business (Articles 8 and 12 of the Trust Contract); and the Plaintiff shall perform the duties of receiving the sales revenue and the fund management; and the Plaintiff shall perform the duties of receiving the sales revenue and supporting the sales of Ansan Housing (Article 8 of the Special Agreement).

(3) In accordance with this trust agreement, on May 19, 197, two parcels of land, the project site of which was the project site, was registered for the transfer of ownership based on trust in the future of the plaintiff, and on May 30, 1996, the competent administrative agency reported the change of the Plaintiff and Ansan Housing to joint project undertakers

(4) The sales contract of the apartment in this case was concluded by the apartment supply contract stating the Plaintiff and the Ansan Housing as the joint project proprietor. In consideration of the convenience of the horse sale business on August 1997, the Plaintiff issued 160 copies of the apartment supply contract with the official seal of the representative director of the Plaintiff and 20 copies of the apartment supply contract without the official seal of the representative director of the Plaintiff (the sales contract for all of the apartment 180 households of this case) to the Ansan Housing. The apartment sale contract of this case was concluded by using it and transferred to the Plaintiff with the sales price. On the other hand, the Plaintiff confirmed the current status of selling the apartment, but did not participate in the sales business.

(5) However, when it is anticipated that, on April 18, 1998, Ansan Housing could not continue to carry out the construction project of the instant apartment on the ground that it was anticipated that it was impossible to carry out the construction project of the instant apartment on the ground that it was difficult for the Defendant to take out the construction project. On the 18th of the same month, when entering into an apartment supply contract with the Plaintiff’s representative director’s seal affixed on the Plaintiff, and the sales contract with respect to eight households among the instant apartment buildings, it agreed to substitute the sale price of the eight households with infant and child childcare facilities as the debt amount of 500 million won, and pursuant to this agreement, it was prepared a deposit sheet to the effect that

(6) After that, on April 30, 1998, under the status of 30 to 35%, the Ansan Housing ceased construction upon the last default of payment, and on May 2, 1998, prepared a construction waiver note and a written waiver of the right to waive all rights related to the apartment project of this case to the Plaintiff.

(b) Markets:

(1) As to the plaintiff's primary claim seeking confirmation that the seller did not have the right and obligation as the buyer to sell the apartment of this case on the ground that the seller is the plaintiff and the Ansan-si did not have the right to dispose of the apartment of this case.

(A) The plaintiff's assertion that the right to sell the apartment of this case is the plaintiff and the Ansan-si did not have the right to dispose of the apartment of this case cannot be acknowledged. Rather, as long as the plaintiff delivered the apartment supply contract of this case in a lump sum, it shall be deemed that the plaintiff granted the right to purchase the apartment of this case on behalf of the plaintiff and the plaintiff to purchase the apartment of this case under the trust agreement of this case, the sale of the apartment of this case is performed by the plaintiff and the plaintiff as joint project undertakers, the apartment supply contract of this case with the official seal of the representative director of the plaintiff and 160 copies of the apartment supply contract of this case are delivered to the Ansan-si, the apartment sale contract of this case is valid since the plaintiff and the plaintiff entered into the apartment sale contract of this case with the apartment of this case as well as the apartment of this case, the apartment of this case were entered into the sale contract of this case with the plaintiff's own right to purchase the apartment of this case on behalf of the plaintiff.

(B) Home Affairs, which correspond to the contents of the apartment supply contract, delegated only the authority to conclude the apartment sale contract with the content of the apartment sale contract, i.e., the authority to conclude the sale contract for the purpose of payment in kind, and it does not grant the authority to conclude the sale contract for the purpose of payment in kind. However, in light of the fact that the apartment supply contract with the official seal of the representative director of the plaintiff was issued with 160 copies of the apartment sale contract for the purpose of payment in kind, and that the apartment sale contract was actually executed independently and directly received the purchase price, and the plaintiff did not participate at all in the sale contract for the apartment of this case. In light of the fact that the apartment sale contract for the purpose of payment in lots was concluded by the apartment supply contract with the official seal of the representative director of the plaintiff and the apartment sale contract for the apartment of this case, the defendant was bound to believe that the construction business of the apartment of this case was in accordance with the apartment sale contract for the purpose of payment in kind and was within the status of the representative of the plaintiff.

(2) Even if the sales contract concluded between the Ansan Housing and the Defendant is valid, the right to receive the sales price under the sales contract is limited to the Plaintiff, so the Defendant is obligated to pay the Plaintiff KRW 498,845,00 to the Plaintiff for confirmation that the Plaintiff had the obligation to pay the sales price of eight households of the instant apartment.

As long as the sales contract concluded by the Ansan Housing and the defendant for the purpose of payment in kind is valid, the defendant is not liable to pay the price to the plaintiff.

2. The judgment of this Court

A. In light of the legal principles and records of the trust relationship with the plaintiff, the apartment of this case should be maintained separately from the trust property of the truster or trustee, and the right to sell the apartment of this case shall also belong to the plaintiff, and the apartment of this case shall be in charge of the sale of the apartment of this case, which is the plaintiff's ownership, is ultimately because the plaintiff entrusted the sale of the apartment of this case to the apartment of this case, which is the plaintiff's ownership, and it shall not be due to the fact that he has the right to sell or dispose of the apartment of this case. Thus, it is extremely exceptional that the plaintiff grants the right to sell the apartment of this case to the apartment of this case to sell or dispose of the apartment of this case, which is the apartment of this case, to the apartment of this case, as the trust property of this case should be clearly distinguished from the trust property of the truster or trustee. In light of the independence of trust property, it is not permissible to provide the apartment of this case in lieu of satisfaction of his own debt to the truster who is not related to trust property.

Therefore, the judgment of the court below that the plaintiff should be deemed to have granted the power of representation for payment of the apartment of this case to the Ansan Housing for the repayment of his/her obligation cannot be said to be erroneous.

However, in light of the records, the court below's finding of facts as to the situation at the time of the sales contract in this case is just, and there is no error of law by misunderstanding the facts contrary to the logical rules and the empirical rules, and if the facts are the same, the court below is just in holding that there is a justifiable reason to believe that the defendant has the right of representation to conclude the sales contract in the same form as this case on behalf of the plaintiff, and there is no error of law such as misunderstanding of legal principles as the omission of judgment, lack of reason, contradiction of reason, and representation, as otherwise alleged in the ground of appeal.

Therefore, the court below accepted the defendant's argument that the contract for sale in this case constitutes an expression agent and rejected the plaintiff's primary claim, and as long as the contract for sale in this case is established as an expression agent, the error of the court below's determination as to the scope of power of representation did not affect the conclusion of the judgment, and therefore, the ground of appeal that criticizes the court below

B. Even according to Article 4(1) of the apartment supply contract of this case, it cannot be deemed that the intermediate payment and the balance under the apartment supply contract of this case must be deposited into the account under the Plaintiff’s name. Therefore, insofar as the payment of intermediate payment and the balance is agreed to have been made in full on the house within Ansan-si due to payment in kind, the validity of the payment cannot be denied. Therefore, the court below’s dismissal of the Plaintiff’s conjunctive claim is justifiable, and there is no error of law by misunderstanding the facts contrary to the empirical rule without any evidence, such as a deviation from the determination of the right to receive the intermediate payment and the balance, a failure in reasoning

The grounds of appeal on this point are also rejected.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)