Plaintiff (Counterclaim Defendant) (Law Firm Dakel, Attorneys Park In-bok et al., Counsel for defendant-appellant)

Defendant-Counterclaim (Law Firm Space, Attorneys Kim Han-Gyeong et al., Counsel for the plaintiff-appellant)

August 28, 2015

Seoul Central District Court Decision 2013Da95382 (main office) decided May 9, 2014, 2013Da232389 (Counterclaim) decided

1. The plaintiff (Counterclaim defendant)'s appeal and the preliminary claim added at the trial and the defendant (Counterclaim plaintiff)'s appeal are all dismissed.

2. The costs of appeal shall be borne by each party.

1. The plaintiff (Counterclaim defendant);

Of the judgment of the first instance court, the part against the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) shall be revoked. The Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) primarily pays to the Plaintiff money calculated at the rate of 20% per annum from the day following the delivery of a copy of the application for purport of the instant claim and modification of the cause of the claim to the Plaintiff, based on the provisional registration completed on July 6, 2006 by the Seoul Central District Court No. 3246, Jul. 6, 2006 (hereinafter “instant real estate”). In addition, the Defendant paid to the Plaintiff money calculated at the rate of 130 million won per annum from the day following the day of complete payment (the Plaintiff added the conjunctive claim at the trial).

2. The defendant;

The part against the defendant in the judgment of the court of first instance shall be revoked. The plaintiff shall implement the procedure for the cancellation of the registration of the right to claim ownership transfer, which was completed by the Seoul Central District Court No. 32466 on July 6, 2006, with respect to the real estate

A principal lawsuit and a counterclaim shall be deemed simultaneously.

1. Facts of recognition;

The reasoning for this Court’s explanation is as follows. Article 1.(b)(2)1 of the reasoning of the judgment of the court of first instance provides that “No. 201” shall be deemed as “No. 202,” and Article 420 of the Civil Procedure Act provides that “No. 11” shall be added to “No. 11”, and this part of the evidence for recognition is identical to that of the judgment of the court of first instance.

2. The assertion and judgment

A. Determination on the main claim

(1) Part on the claim for ownership transfer registration on the ground of the full reservation for sale

(A) The plaintiff's assertion

On or around May 30, 2004 and June 19, 2004, the Plaintiff agreed to exchange between Defendant and △△△△△△△△, and three households with 202, 301, and 302 of the instant real estate. Accordingly, on June 21, 2006, the Plaintiff concluded a pre-sale agreement on the instant real estate and completed the provisional registration stated in the purport of the claim (hereinafter “the instant provisional registration”). Since the Plaintiff exercised the right to complete the pre-sale by serving a duplicate of the instant complaint, the Defendant is liable to implement the principal registration procedure based on the instant provisional registration.

(B) Determination

In full view of the above facts and the purport of Gap evidence No. 11 and the whole arguments, the construction of ○○○ Loan was not completed at the time of entering into a prior sale contract with ○○○○○○○ Loan. The site of this case was established with a sum of the maximum debt amount of 316,000,000 won. ② The plaintiff agreed to exchange 3 bonds with the defendant and △△△△△△△△△ Loan, but the plaintiff did not request the defendant to transfer ownership registration until the expiration of January 25, 2006, when the transfer registration of ownership was possible. ③ The non-party 3 provided the plaintiff with the provisional registration on February 22, 2005 to secure that the non-party 3 received the provisional registration No. 2001, 300,000 won, and the defendant did not complete the provisional registration No. 305,205, and the defendant provided the above provisional disposition No. 3004, Feb. 24, 2005.

The plaintiff's claim for this part of the provisional registration of this case is without merit under the premise that the provisional registration of this case was completed to preserve the order of the claim for ownership transfer registration on the ground of sale reservation.

(2) Part of the claim for ownership transfer registration based on the provisional registration security right

(A) The plaintiff's assertion

Even if the provisional registration of this case is a provisional registration for security, the claims for the purchase-price of △△△△△△△△, the secured debt, remains at KRW 150,00,000 as of November 6, 2009 and damages for delay from January 26, 2006 to November 6, 2009. The Defendant paid KRW 5,000,000 out of the money sold 202 from the Plaintiff on November 6, 2009 to KRW 28,356,164. The Defendant paid KRW 5,00,000 among the money sold to the Plaintiff on November 6, 2009, and ordered Nonparty 1, the purchaser of ○○○○○△△△△△ Loan, the purchaser of 202, set up a collateral security interest of KRW 53,00,000 with respect to the above loan to the Plaintiff.

Therefore, the secured claim is KRW 154,896,734 as of August 3, 2015 [150,000,000 + [5,00,000 + (53,00,000 + 53,00,000 + 28,356,164] x [1 + 5% per annum x (5 + 270/365 days)]. On the other hand, the assessed market value around August 1, 2015 is KRW 150,00,00. Since the amount of the secured claim is higher than the assessed value of the real estate in this case, there is no liquidation amount, and the plaintiff notified the provisional registration of the execution of the secured claim by serving a duplicate of the application for change of the purport of the claim and the cause of the claim in this case.

When two months have elapsed from August 3, 2015 on which the copy of the above application was served, the defendant is obligated to implement the principal registration procedure on the basis of the provisional registration of this case.

(B) Determination

B. As seen below, the secured claim of the provisional registration of this case remains at the rate of 5% per annum from November 7, 2006 to the date of full payment, which is less than 150,00,000,000 won as the market value of the real estate of this case by the Plaintiff’s assertion, and damages for delay calculated from November 7, 2006 to the date of full payment. Therefore, the Plaintiff should pay to the Defendant liquidation money (the amount calculated by subtracting the secured claim amount from the market value of the real estate of this case) under Article 4(1) of the Provisional Registration Security Act.

In addition, the period of liquidation under Article 3(1) of the same Act (two months after the notification of the execution of the security right) shall be calculated from August 3, 2015, along with the date on which the copy of the application for change of the purport of the instant claim and the cause of the claim, stated in the Plaintiff’s notification of the execution of the security right, is served on the Defendant. It is evident that two months have not elapsed as of the date of the closing of argument in this case, and therefore, the Plaintiff’s claim for this portion constitutes a lawsuit

As long as it cannot be readily concluded that the Defendant had no possibility to repay the secured debt of the provisional registration of this case to the Plaintiff before the period of liquidation expires, it is difficult to deem that the Plaintiff is “necessary to claim interest” under Article 251 of the Civil Procedure Act.

The plaintiff's above assertion is without merit without further review.

(3) The portion claiming indemnity

(A) The plaintiff's assertion

The Plaintiff, a person having the right to a provisional registration for the instant real estate, has a legitimate interest in repaying the Defendant’s debt to Nonparty 2 with respect to the instant real estate site. On July 7, 2004, the Plaintiff paid 25,000,000 won, which was received from the Defendant on July 7, 2004, and 105,000,000 won received from Nonparty 1 on November 6, 2009, which was paid by the Plaintiff from Nonparty 1.30,000,000 won.

Therefore, the defendant is obligated to pay to the plaintiff 130,000,000 won as the amount of indemnity, expenses for office management, or unjust enrichment by subrogation as above, and damages for delay.

(B) Determination

1) First, we examine about KRW 25,000,000 on July 7, 2004.

Comprehensively taking account of the evidence Nos. 5 and 12 and the purport of the entire pleadings, the Plaintiff issued to the Defendant a check of KRW 25,00,000 as part of the loans at the above bank, and the Plaintiff issued the said provisional registration on May 28, 2003, on the ground of the pre-sale agreement with the Defendant on May 28, 2003, and completed the registration of the right to claim the transfer of ownership on June 2, 2003. The Defendant obtained a loan of KRW 80,00,00 from the head of the Seoul Livestock Industry Cooperatives on July 7, 2004 after the purchase of △△△△△△△△△△△△△ Loan from the Plaintiff and completing the registration of the transfer of ownership, and the Defendant issued the Plaintiff with a mark of KRW 25,00,000 as part of the loans at the above bank on the same day, and on the same day, revoked the said provisional registration on the same day. Nonparty 2 obtained the maximum debt amount on the instant site on July 24, 300000.

According to the above facts, the above 25,000,000 won, which the plaintiff subrogated, is part of the loan secured by △△△△△△△△△ Group owned by the defendant.

Therefore, the Plaintiff cannot be deemed to have contributed KRW 25,00,000 on its own account.

2) We examine the remainder of KRW 105,000,000 as follows:

As seen earlier, the Defendant’s ownership registration was completed on January 25, 2006, 2002 ○○○○ 202’s loan. Therefore, the Defendant’s sale of ○ 202’s loan and the money received from Nonparty 1 from the buyer is the Defendant’s original, not the Plaintiff. Therefore, the Plaintiff cannot be deemed to have contributed KRW 105,00,000 on its own account.

In addition, on December 6, 2013, the Plaintiff received the sum of KRW 20,300,000 in cash and KRW 110,000,000 in a check from Nonparty 1 on the date of the fifth pleading of the first instance court and March 14, 2014, from Nonparty 1 on March 8, 2014, at KRW 163,000,000 in cash and KRW 89,70,000 in cash and KRW 3,100 in a bank account of its own national bank and used all of the remainder as necessary (in light of the Plaintiff’s legal brief as of December 2, 2013 and March 14, 2014, the evidence submitted by the Plaintiff alone alone is insufficient to recognize that the Plaintiff paid KRW 105,00,00 in cash and KRW 3,100,00 in a bank account of its own national bank.

3) The Plaintiff’s above assertion is without merit to examine further.

B. Determination on the counterclaim

(1) Determination as to the cause of claim

(A) Defendant’s assertion

The secured obligation of △△△△△△△△, the secured obligation of the provisional registration of this case, as well as the obligation for delay in payment of the purchase price of KRW 150,00,000,000, ① repayment of KRW 25,000 on July 7, 2004, ② repayment of KRW 163,00,000 on November 6, 2009, ③ repayment of KRW 163,000 on July 6, 2009, ③ from July 2006 to November 2009, the Plaintiff leased KRW 202 on July 200, which was received from Nonparty 4 without permission, to KRW 50,000 on monthly rent of KRW 20,50,000 on a set-off of the total amount of unjust enrichment equivalent to the monthly rent of KRW 20,500. Therefore, the Plaintiff is obligated to cancel the provisional registration of this case to the Defendant.

(B) Determination on the due date for payment of the purchase price claim, which is the secured claim

In full view of the facts acknowledged as mentioned in paragraph (1) and the purport of the entire pleadings, it is reasonable to deem that the Defendant entered into a pre-sale contract to secure payment, by entering into an agreement to pay KRW 150,000,000 until the Plaintiff is able to register the ownership transfer of the instant real estate pursuant to the Building Act or the Registration of Real Estate Act.

Therefore, the payment date of the above purchase price was reached on January 25, 2006 when the plaintiff could complete the registration of ownership transfer of the real estate of this case.

(C) Determination on the extinction and scope of the secured claim

1) First of all, we examine the assertion on reimbursement of KRW 25,000,000 on July 7, 2004.

In light of the facts acknowledged earlier and the circumstances that the Defendant renounced the benefit of time before the maturity of January 25, 2006, which is the time limit for payment of the above purchase price claims, and even if it appears that there is no reason to repay the said benefit first, it is reasonable to deem that KRW 25,00,000 as of July 7, 200, was delivered to the Plaintiff under the agreement of the Plaintiff and the Defendant for the cancellation of provisional registration of the above Nonparty 2, and was delivered to Nonparty 2.

This part of the defendant's argument is without merit.

2) We examine the assertion on reimbursement of KRW 163,00,000 on November 6, 2009.

Comprehensively taking account of the overall purport of evidence Nos. 7 through 9 and Nos. 9-1 and 2-2, the Defendant paid 110,000,000 won to the Plaintiff on Nov. 6, 2009 for the payment of the above purchase-price claim, and the remainder of 53,000,000 won to the Plaintiff through Nonparty 1 through the purchaser of ○○○ Art 202, and the remainder of 53,00,000 won to ○○ Art 202.

This part of the defendant's argument is justified.

On November 6, 2009, the Plaintiff asserts that KRW 105,000,000, out of the money received from the above non-party 1 on November 6, 2009, was repaid to the Defendant's obligation against non-party 2, not to pay the above purchase price. However, the obligation against non-party 2 is not sufficient for the Plaintiff to pay at will, and as seen earlier, it is inconsistent with the Plaintiff's argument on the fifth day of pleading and the eighth day of pleading.

The plaintiff's above assertion is without merit.

3) We examine the allegation of set-off with the claim for return of unjust enrichment.

Comprehensively taking account of the overall purport of evidence Nos. 7 and 8 of evidence Nos. 7 and 8, the defendant, around 2006, accepted the plaintiff's request that the non-party 4 was living together with the plaintiff's employee No. 202 because he did not see that the plaintiff's employee Non-party 4 was able to use ○○○ Art loan 202, and the non-party 1 was the wife of the non-party 4.

According to the above facts of recognition, it is reasonable to view that the defendant granted ○○ 202 lending to the plaintiff or his family members, who had been employed by the plaintiff or the plaintiff, ○○ 202. Meanwhile, the person who incurred a loss equivalent to monthly rent, not the defendant, but the above non-party 4. Therefore, the defendant cannot seek against the plaintiff the amount equivalent to the monthly rent of the allegation as unjust enrichment.

This part of the defendant's argument is without merit without further review.

4) If so, the remaining amount of the Defendant’s obligation to pay the purchase price to the Plaintiff as of November 6, 2009 is KRW 15,356,164 as follows:

【Calculation Form】

(1) 150,00,000 won + 150,000,000 won 】 [3 years (from January 26, 2006 to January 25, 2009) + 285 days/365 days (from January 26, 2009 to November 6, 2009)] 】 5% per annum x 178,356,164 won (less than won)

(2) Residual amount: 15,356,164 won = 178,356,164 won - 163,000,000 won for repayment made on November 6, 2009

(2) Sub-determination

The Defendant is obligated to pay to the Plaintiff 15,356,164 won and damages for delay calculated at the rate of 5% per annum from November 7, 2009 to the date of full payment. As long as the obligation to pay the purchase price guaranteed by the provisional registration of this case is not fully repaid, the Defendant cannot seek cancellation of the provisional registration of this case against the Plaintiff.

3. Conclusion

The plaintiff's main and main claims and the defendant's counterclaims are all dismissed as they are without merit. The judgment of the court of first instance is just, and the plaintiff and the defendant's appeal are all dismissed as they are without merit, and the plaintiff's supplementary main claims are also dismissed as they are without merit. It is so decided as per Disposition.

[Attachment]

Judges Han-hee (Presiding Judge)