2011Na4859 Damage (as such)

A Litigation Trustee of a corporation

Administrator B of the Debtor Rehabilitation Company A

Attorney Park Jae-soo, Counsel for the defendant-appellant 000

Attorney Kim Jae-soo, 000

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3E

4F

5G

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7. I

Defendants 00 Law Firm

Attorney 000

Daegu District Court Decision 2010Gahap9089 Decided July 22, 2011

March 23, 2012

April 20, 2012

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim against the defendants is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendants jointly and severally pay to the plaintiff 425,56,620 won with 20% interest per annum from the day following the day of service of the last copy of the complaint of this case to the day of complete payment. 2. purport of appeal

The same shall apply to the order.

1. Basic facts

The court's explanation on this part is the same as the corresponding part of the reasoning of the judgment of the court of first instance, and thus, this part is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

In the process of concluding the instant contract with the reconstruction association and implementing the housing reconstruction association’s business, the Plaintiff lent KRW 425,566,620 in total to the reconstruction association. However, as the instant contract was lawfully rescinded by exercising the Plaintiff’s right of rescission due to the causes attributable to the reconstruction association, or was rescinded by agreement in accordance with the Plaintiff and the rebuilding association’s intent, the reconstruction association bears the duty of restoration due to the rescission of the instant contract. Therefore, the Defendants who jointly and severally guaranteed the performance of the instant contract are jointly and severally liable to return the said amount lent by the Plaintiff to the reconstruction association and the damages for delay.

B. Determination

(1) Whether the nature of the money paid by the Plaintiff constitutes a loan

(A) The defendants' assertion

The Plaintiff is a joint project proprietor of a reconstruction project and the Plaintiff has revenues from the reconstruction project. As such, the funds paid for the expenses for the implementation of the reconstruction project constitute investments or project costs to be borne by the Plaintiff himself/herself. Therefore, the funds paid by the Plaintiff for the implementation of the project of this case cannot be deemed as loans, regardless of their titles, which are obligated to be repaid by the reconstruction association.

(B) Judgment on the nature of money

If the above facts and the following circumstances acknowledged by the above evidence are combined, the nature of the above money paid by the Plaintiff for the implementation of the project of this case is not the investment but the loans that the reconstruction association should pay to the Plaintiff after the completion of the project of this case.

① Under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the principle subject of the housing reconstruction project shall be determined as a housing reconstruction association, and the head of a Si/Gun/Gu/Housing Corporation, etc. may jointly implement this case if the majority of the members obtain consent. Thus, even if the Plaintiff stated in the instant contract as a public Dong project implementer, the Plaintiff’s actual status is excessive to the Si construction, and the subject of the reconstruction project is

② According to the instant contract, the Plaintiff loaned to the reconstruction association all expenses necessary for the promotion of new art projects, such as design expenses, supervision expenses, authorization and permission expenses, geological survey expenses, preservation registration expenses for the portion of general sale, bonds purchase funds, land purchase funds, etc. (Article 12 of the instant contract). The Plaintiff shall pay KRW 4,00,000 per month within the scope not exceeding 40 months as the operating expenses of the association (Article 13 of the instant contract). It is reasonable to view that the Plaintiff, a contractor, as the main agent of the reconstruction project, has to pay for the first time to the reconstruction association. However, it is reasonable to view that the Plaintiff, as the main agent of the implementation of the reconstruction project, has to pay for the first time to the reconstruction association.

③ The usage of the funds paid by the Plaintiff is not expenses incurred by the construction corporation for performing construction, but expenses incurred in carrying out the instant project, such as expenses incurred in meeting the requirements for authorization, expenses incurred in operating the association, etc., and expenses ultimately are expenses of the nature that the reconstruction association shall reimburse the Plaintiff.

(4) According to the customs of the construction business community, where a construction project is discontinued or abandoned in the middle of the construction project, a new construction business entity ordinarily compensates for the expenses that the existing construction business entity has paid on behalf of the association and the restoration to its original state is delayed in the form of repayment from the association after completion of the project.

(2) Whether the instant contract has been rescinded due to the exercise of the Plaintiff’s right to rescind the contract (whether there is a cause attributable to the reconstruction association for the rescission of the instant contract)

On January 5, 2006, one year and four months after the date of application for authorization, the reconstruction association did not meet the resident consent rate requirements, which is the part that the reconstruction association decided not to take responsibility, and thus, the application for authorization of this case was rejected as seen above. However, in full view of the purport of Gap's statement No. 2-3. Eul's statement No. 5-1, and the testimony of the witness of the first instance trial, the plaintiff notified the reconstruction association that it will implement the project by meeting resident consent requirements through the public notice of February 23, 2006, which was presented by the plaintiff notified that the housing reconstruction association should implement the project by being notified of the approval of the project implementation plan to the plaintiff on March 2, 2006, which was 108, which was 206.

According to the above facts, even if the construction period has been delayed in sight because the reconstruction association failed to meet the requirements for residents' consent, the plaintiff notified the reconstruction association to meet the requirements for residents' consent again by setting a deadline, and the reconstruction association satisfies the above requirements after obtaining authorization for modification within the time limit set by the plaintiff, the reasons for the delay in construction cannot be the grounds for cancellation.

In addition, the Plaintiff is unable to continue to implement the construction project because it is impossible to implement the project according to the agreed terms, such as decrease in the number of households at the time of filing an application for re-approval of the project implementation. The Plaintiff asserted to the effect that the cancellation of the instant contract constitutes a case where it is objectively proven (Article 26(2) of the instant contract) and there is no evidence to prove that the Plaintiff was able to implement the project according to the agreed terms due to a significant decrease in the business feasibility at the time of filing an application for re-authorization of the project implementation, and there is no evidence to prove that the Plaintiff was able to implement the project due to the significant decrease in the business feasibility at the time of filing an application for re-authorization of the project implementation plan, and the first instance court’s fact that the number of members of the association was 107 and was unilaterally authorized by the head of the Nam-gu Metropolitan City, Seoul Metropolitan City with the approval of the housing reconstruction project under 135 members of the instant contract without obtaining the consent of the Plaintiff to implement the reconstruction project under the name of 1010 members of the agreement.

Therefore, it cannot be deemed that the instant contract was rescinded due to the Plaintiff’s declaration of intent on April 26, 2006, on the premise that the Plaintiff had the right to rescind the contract, which constitutes grounds for the occurrence of the right to rescind the contract under the instant contract.

(3) Whether the instant contract was lawfully rescinded by agreement

As seen earlier, the Plaintiff’s expression of contract rescission is null and void since the Plaintiff did not have the right to make a contract under the instant contract. However, on July 26, 2006, the reconstruction association sent a public notice stating that the Plaintiff consented to the Plaintiff’s declaration of contract rescission and that the Plaintiff’s loan would be dealt with through consultation with a new construction project selected by the association. In full view of the circumstances at the time, the Plaintiff, the intention of the reconstruction association, and the contents of the public notice thereafter, etc., the purport of the above public notice on July 26, 2006 is recognized that the reconstruction association was obligated to agree to cancel the Plaintiff’s contract and reinstate the loan already received from the Plaintiff. However, if the new construction is selected as a new construction project according to the construction business practice, the new construction project would return the loan against the reconstruction association on behalf of the reconstruction association, and thus, it is interpreted that the new construction project would be settled between the new construction project and the new construction

As to this, the Defendants asserted that the declaration of intent to cancel the agreement of the reconstruction association dated July 26, 2006 was a condition to suspend the selection of a new contractor, but that the said declaration did not take effect since the conditions were not fulfilled since the new contractor was not selected thereafter. However, the circumstance that the new contractor was not selected differently from the expectation of the reconstruction association after the cancellation of the said agreement is merely an unexpected circumstance after the cancellation. In addition, in light of the contents of the said public notice, the selection of the new contractor is only a matter related to the method of return of loans following the cancellation of the instant contract, and it cannot be deemed that the new contractor was considered as a condition of suspension for the effective cancellation of the agreement. Accordingly, the validity of the cancellation of the said agreement cannot be denied.

Therefore, the instant contract was lawfully rescinded according to the Plaintiff’s declaration of intent to cancel the contract on April 26, 2006 and the agreement of the reconstruction association on July 26, 2006, and accordingly, the rebuilding agreement bears the duty to restore to the Plaintiff due to the rescission of the instant contract.

(4) Whether the obligation borne by the Defendants as joint and several sureties includes the duty of restitution following the rescission of the instant contract

(A) The Defendants signed and sealed the instant contract as a joint guarantor of the reconstruction association, and Article 7(1) and (3) of the instant contract provides that “The reconstruction association and the Plaintiff shall have all officers and representatives of the reconstruction association as joint and several guarantors in order to guarantee the performance of the instant contract, and the Plaintiff shall be joint and several guarantors, and the joint and several guarantors shall be jointly and severally liable to the reconstruction association and the Plaintiff for the obligations arising from the non-performance of the obligation of the reconstruction association and the Plaintiff, respectively.”

(B) In light of the following circumstances, it is reasonable to view that the obligation, which is the guaranteed obligation to be borne by the Defendants, does not include the duty of restoration due to the cancellation of the contract, in the case of a “liability arising from the breach of the contractual obligation by the reconstruction association” as mentioned above, including the duty of restoration due to the cancellation of the contract.

(1) Since a surety obligation is aimed at securing the discharge of the principal obligation, if the principal obligation which is the subject of the security becomes null and void or cancelled, the surety obligation shall also be null and void, and if the principal obligation is extinguished, the surety obligation shall also be extinguished naturally (in cases where Article 436 of the Civil Act becomes aware of the cause of cancellation of the principal obligation at the time of the surety guarantee contract, even if the principal obligation is cancelled thereafter, the surety obligation shall not be extinguished accordingly, and shall be deemed to bear an independent obligation having the same purpose as the principal obligation. This is not a guarantee, but a separate

In principle, the subsidiary nature of such a guarantee obligation is likewise applicable to the duty to restore the principal obligation due to the rescission of a contract. That is, the principal obligation becomes retroactively extinguished due to the termination of a contract, and the contractual party bears the special obligation to restore the obligation to restore unjust enrichment, and it is reasonable to deem that such duty to restore the obligation to restore is not an obligation to guarantee. However, in a case where a contractual relationship is terminated as a result of the other party’s exercise of the other party’s right to cancel under the statutory or contractual right to cancel due to the cause attributable to the principal obligor, inasmuch as the contractual relationship is extinguished upon the other party’s exercise of the right to cancel under the statutory or contractual right to cancel due to the cause attributable to the principal obligor, the surety is also liable for the duty to restore the principal obligor (see, e.g., Supreme Court Decision 71Da1474, May 9,

Meanwhile, where a contract is terminated upon an agreement between the parties to the contract without any cause attributable to the principal, the principal of the guaranteed obligation shall not be obliged to restore the original obligation due to the cancellation, and it shall not be liable to the principal by expanding the case to such an extent.

② In light of the main contents of the instant contract, the Defendants’ joint and several liability is indirectly compelling the reconstruction association to perform the contractual obligation, and the ultimate contents of joint and several liability as a result of a real cause are realized that the Defendants, a joint and several liability, such as the reconstruction association’s failure to perform the contractual obligation, bear all kinds of liability for damages against the Plaintiff. In this sense, the term “non-performance of contractual obligation” or “non-performance of obligation” is naturally premised on either party’s intention or negligence, and such interpretation seems to conform to the intent of the Plaintiff or the Defendants at the time of the instant contract.

As seen earlier, the instant contract only was rescinded in agreement with the Plaintiff’s declaration of intention of cancellation and the intention of the reconstruction association on it, and it was not rescinded due to the Plaintiff’s intention of rescission of the contract which occurred due to the cause attributable to the reconstruction association. In other words, the instant contract is not attributable to the reconstruction association before the cancellation of the contract, and the contract was terminated after the termination of the contract, so it cannot be deemed as a contractual obligation that the reconstruction association bears due to the cancellation of the contract. Ultimately, it is difficult to view that the reconstruction association failed to perform its contractual obligation.

(5) Sub-committee

Therefore, it is difficult to accept the Plaintiff’s assertion on the premise that the duty to restore the duty of guarantee upon rescission of the instant contract also extends to the Defendants’ liability.

3. Conclusion

Therefore, the plaintiff's claim against the defendants of this case is dismissed as it is without merit, and the judgment of the court of first instance is unfair with different conclusions, and it is revoked and the hearing of the plaintiff against the defendants is dismissed. It is so decided as per Disposition.

Maximum-type (Presiding Judge)

Lee Young-chul

Kim Sang-woo