205Na86622 Selling rights

○ ○

Bucheon-si

Law Firm Han River et al.

Attorney Yoon Young-young

1. Defendant 1;

Bucheon-si

Busan District Court Decision 201Na1448 delivered on August 201

Attorney Lee Jae-won

2. The Winter Construction Industry (formerly known as a stock company: the same high speed construction company);

Ansan-si Hoyang-dong 1029 - 9

Park Jong-il of the representative director

Attorney Kim Jong-tae, Counsel for the plaintiff-appellant

Busan District Court Decision 2004Gahap5326 Decided September 9, 2005

April 5, 2007

June 7, 2007

1. The plaintiff's appeal is dismissed.

2. The plaintiff's conjunctive claim expanded from the trial is dismissed.

3. The costs of appeal and the costs of lawsuit arising from the extension of the claim in the trial shall be borne by the plaintiff.

At the same time, Defendant 1 received KRW 276,300,00 from the Plaintiff and attached Form 1 from the Plaintiff

on March 24, 2002, the procedure for the registration of ownership transfer due to the transfer

D. Preliminaryly, the Defendants’ respective Plaintiff KRW 630,700,000, and the instant case

The plaintiff shall pay 20% interest per annum from the day following the service of a copy of the complaint to the day of full payment (the plaintiff).

I extended the claim of the preliminary claim in the trial.

1. Basic facts

A. On April 1, 2002, the Plaintiff newly constructed and sold the Dongyang Construction Industry Co., Ltd. (the trade name at the time of the occurrence of this case was the Dongyang Construction Co., Ltd.; hereinafter referred to as the “Defendant Co., Ltd.”), and deposited KRW 10,000,00 as the deposit money for the application for parcelling-out under the name of Defendant 1, in addition to the application for parcelling-out under the name of the Plaintiff and the husband for parcelling-out, in addition to the application for parcelling-out in the name of the Plaintiff and the Plaintiff’s husband, the Plaintiff loaned the resident registration certificate from the Defendant 1, and deposited KRW 10,00 as the deposit money.

B. As a result of a general public lottery on April 2, 2002 against the subject of parcelling-out, the defendant company won the above apartment complex 102 Dong 301 (hereinafter referred to as "the apartment of this case") with respect to the application for parcelling-out by Defendant 1.

C. On April 4, 2002, the Plaintiff: (a) concluded a sales contract under Defendant 1 with Defendant 1 on a pre-sale basis; (b) concluded the sales contract under Defendant 1’s name; and (c) sought to transfer the sales contract under Defendant 1’s name; (b) but Defendant 1 refused to request the Plaintiff to resolve the price for the change of the purchaser’s name and the tax issues arising therefrom; (c) Defendant 1 expressed his intention not to transfer the ownership of the apartment in this case to the Plaintiff; and (d) concluded the sales contract with the Defendant Company for the apartment in this case with the exclusion of the Plaintiff. At the time, the winners paid the Plaintiff KRW 276,300,000 for the purchase price of the apartment in this case without refund of KRW 10,000,000 for the purchase contract prior to the sale contract, but in the case of the apartment in this case, they substitute it as part of the down payment for the sale contract without refund of KRW 10,000,000.

D. On April 5, 2002, immediately after the sales contract was concluded, Defendant 1 issued a power of delegation to the Plaintiff to receive refund of KRW 10,000,000 from the Plaintiff’s subscription deposit deposited in Defendant 1’s name. The Plaintiff received refund of KRW 10,00,000 from the Defendant Company on the 13th of the same month.

E. After that, Defendant 1 paid the intermediate payment and the balance of the apartment of this case to Defendant Company in accordance with the above sales contract, and completed the registration of ownership transfer on May 24, 2005.

F. Meanwhile, Defendant 1 concluded a contract for sale in lots and discarded it as set forth in the above C, and April 2002.

6. On May 10, 2002, Defendant 1 filed an application for provisional disposition prohibiting the alteration of the title of apartment units with Defendant 1 as the debtor, Defendant 1 as the third debtor, and Defendant 1 from the above subsidiary branch branch court of the Incheon District Court for provisional disposition prohibiting the alteration of the title of apartment units, in addition to sending a letter of proof that the Plaintiff was awarded a prize of lending the name of Defendant 1 to the Plaintiff and that he was to receive the transfer from Defendant 1. Upon Defendant 1’s request, Defendant 1 should not perform any act of disposal on the right to sell apartment units, and Defendant Company should not perform the provisional disposition regarding the right to sell apartment units of this case. Upon Defendant 1’s request, Defendant 1 should not be allowed to change the title of the contract on the right to sell apartment units of this case. Defendant Company should not be allowed to obtain the provisional disposition of this case from Defendant 1 on September 24, 2004 with Defendant 1 as the debtor and Defendant Company as the third debtor.

G. At present, the registration of ownership transfer was completed in Defendant 1’s name with respect to the instant apartment.

【Partial Appellants of 【A-1, A-5, A10, A12, A16, A-16, A-1-2, B-1-3, B-4, A-7, B-1, B-2, and B-5 evidence 1, 2-1 through 3, and 5-1, 2, and 6 of A-5, respectively, and the statements in the order of Kim Jong-tae of the first instance court, and the purport of the whole pleadings.

2. The cause of the claim and the judgment thereof

A. Judgment as to the primary cause of claim (1) Plaintiff’s assertion

The Plaintiff asserts as follows as the primary cause of the instant claim. (A) The instant application for parcelling-out was made by the Plaintiff after the Plaintiff was leased the name of Defendant 1 to the Plaintiff, and at the time, Defendant 1 lent only the name to the Plaintiff. As such, the right to parcel out arising from the winning of the instant application for parcelling-out has the Plaintiff from the beginning, and as long as Defendant 1 voluntarily concluded a contract for parcelling-out with Defendant Company and paid the parcelling-out price and received the ownership transfer registration of the instant real estate, Defendant 1 is liable to implement the procedure for the registration of ownership transfer of the instant real estate at the same time as Defendant 1 received the payment from the Plaintiff to the Defendant Company. (b) Even if not, Defendant 1 and Defendant 1 agreed to transfer the right to parcel out the instant apartment, Defendant 1 violated this agreement and takes the ownership of the instant real estate, and thus Defendant 1 is liable to perform the obligation to register ownership transfer of the instant real estate at the same time, at the same time, to the Plaintiff.

(2) According to the above facts, the application for parcelling-out in this case may be recognized as being made pursuant to the agreement to lend the apartment under the name of the plaintiff to the defendant 1, who was aware of the opportunity for the plaintiff to apply for parcelling-out in his or her name to the defendant company (hereinafter referred to as "the agreement to lend the name of this case"). However, as such, the plaintiff made the application for parcelling-out in this case by lending the name from the defendant 1, the above fact that the plaintiff made the contract for parcelling-out in this case by lending the name of this case from the defendant 1 shall be included in the agreement to lease the name of this case in the name of the defendant 1 and the agreement to receive the right of parcelling-out from the defendant 1 after the conclusion of the contract for parcelling-out in this case is won and the right to buy-out can not be immediately reverted to the plaintiff. Thus, the plaintiff's claim on the premise that the right to buy-out in this case belongs to the plaintiff from the initial right to buy-out in this case.

In full view of all the circumstances revealed in the argument of this case, such as the above facts, the nature of the application for parcelling-out, and the circumstance of lending the ownership of the application for parcelling-out between the plaintiff and the defendant 1, it is reasonable to view that when the plaintiff loaned his resident registration certificate from the defendant 1 to apply for parcelling-out and agreed to accept it by the defendant 1, the plaintiff and the defendant 1 entered into a contract for parcelling-out under the name of the defendant 1 where the plaintiff applied for the application for parcelling-out in the name of the defendant 1, at least in the future, continuously entered into the contract in the name of the defendant 1, and

However, according to the evidence mentioned above, the plaintiff 1 and the defendant 1, who was the one of the following problems, did not discuss the issue of profit distribution, such as the amount of the price to be given and received, and how to deal with the issue of burden of capital gains tax due to the transfer of ownership (the defendant 1 could not have easily predicted that it would actually become the winning, so it seems that the plaintiff 1 did not have any need to prepare for the problems that may arise in the name of the purchaser or to demand the price for the sale under the name of the plaintiff 1, 202. The plaintiff 1 demanded the price under the name of the plaintiff 1 and the defendant 1 to sell the housing under the name of the plaintiff 1 and the sale contract under the name of the plaintiff 1, and the plaintiff 1's agreement to sell the housing under the name of the plaintiff 1 and the plaintiff 1 to sell the housing under the name of the contract for sale under the name of the plaintiff 1 and it is difficult to find that the plaintiff 1's agreement to sell the housing under the above name of the plaintiff 1 and the plaintiff 1.

In addition to the above criminal acts, the agreement between the Plaintiff and the Defendant 1 on the title transfer of the apartment house can be cancelled or the contract for the supply of the housing already concluded by the Minister of Construction and Transportation or the project undertaker pursuant to Article 47(2) of the same Act. Thus, it is difficult to force Defendant 1 to enter into the name transfer agreement and the contract for the sale of the apartment house up to the judicial effect of the Plaintiff, based on the title transfer agreement between the Plaintiff and the Defendant 1. The agreement for the sale of the apartment house up to the name transfer under the name of the Plaintiff 4 and the title transfer agreement for the purpose of the sale of the apartment house up to the conclusion of the above title transfer agreement is invalid, unless there are special circumstances. However, the agreement for the sale of the apartment house up to the name transfer agreement between the Plaintiff and the Defendant 2 cannot be viewed as an intermediate right for the purpose of the sale of the apartment house up to the name transfer agreement and the agreement for the sale of the apartment house up to the expiration of the title transfer agreement.

B. The plaintiff is obligated to pay 630,700,000 won, which is the amount calculated by deducting the sale price from the market price of the real estate in this case, the damage suffered by the plaintiff, as compensation for non-performance of the obligation to transfer the ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership of ownership.

(2) However, as determined earlier, insofar as the agreement on the title transfer, including the agreement on the title transfer between the Plaintiff and Defendant 1, was legally rescinded or terminated on April 4, 2002 by Defendant 1, Defendant 1 did not bear an obligation to transfer the right to sell to the Plaintiff, and the Defendant Company also has any obligation to receive an application for the change of the name of the Plaintiff’s buyer.

Therefore, it cannot be viewed that Defendant 1 sought damages from nonperformance on the premise of this premise, and the Plaintiff’s assertion as to the conjunctive cause of claim against the Defendant Company seeking damages from tort is without merit.

3. Conclusion

Therefore, all of the plaintiff's main and conjunctive claims of this case shall be dismissed as they are without merit, and the judgment of the court of first instance on the remainder except for the conjunctive claims expanded in the trial is just, and thus, the plaintiff's appeal is dismissed, and the plaintiff's conjunctive claims expanded in the trial are also dismissed. It is so decided as per Disposition.

Judges Choi Jae-sik

Kim Dong-dong Kim

Judges Dochan Latl Do-

1) When Defendant 1 pays down payment of KRW 27,600,000 to Defendant 1, the Plaintiff uses KRW 10,000,000 deposited by the Plaintiff and uses KRW 10,000.

Although it is alleged that only the amount was paid to the Defendant Company, the testimony of the first instance witness Kim Tae-tae alone is not sufficient to recognize this.

If evidence No. 1-2 and No. 6 were stated in each statement of evidence No. 1-2 and No. 6, the purport of the whole pleadings is examined as the above basic facts.

It can only be recognized that Defendant 1 paid the full amount of KRW 27,600,000 to the Defendant Company on April 4, 2002.

(A) The Plaintiff asserted that the seal of the receiving bank was affixed on April 6, 2002, but the receiving bank received bank, on April 6, 2002.

on April 04, 2002, some of the members of the Council.