2016Gahap2433 Collections

Grina Co., Ltd.

A

October 18, 2017

November 15, 2017

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 50 million won with 15% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. On June 24, 2005, the Defendant: (a) concluded a sales contract on June 24, 2005 with the content that ScarA&D Co., Ltd (hereinafter “ScarA”); and (b) ScarD Co., Ltd. (hereinafter “ScarD”); (c) sold 2/3 square meters (175 square meters) of co-ownership shares of Ulsan Metropolitan City B, C, and D 867.5 square meters (2/3 square meters) to 2,600,000 square meters (hereinafter “the instant real property”); and (d) concluded a sales contract with the content that sells the instant real property to 2,60,000 square meters (hereinafter “the instant sales contract”). The main content is as follows.

1. Location of the object of a real estate sales contract: 2/3-5 square meters in shares of co-owners of 867.5 square meters in Ulsan Metropolitan City (262.4 square meters): The defendant shall be the seller, and the buyer shall be the buyer: scardib and one other scarb shall be the buyer, and the sale contract shall be concluded as follows. [Article 1] The sale price 1. The sale price shall be KRW 2,60,000,000 [Article 2]. [Article 2] The sale price shall be KRW 360,000,000 (1,00,000,000): 1. The sale price shall be 30,000,000,000,000 won (2,000,000,0000) at the time of the sale contract; 2.3,000,000,0000,000 won in the above land shall be the buyer, 3,00,000,00,000,000.

B. After concluding the instant sales contract, the Defendant received KRW 1,600,000,000 as down payment from the buyer of the instant sales contract, but did not receive any remainder of KRW 1,600,000 from the buyer.

C. On July 17, 2012, the Defendant concluded a sales contract to sell the instant real estate at the purchase price of KRW 4,000,000,000 (the remainder KRW 1,000,000,000,000, and the remainder payment of KRW 3,000,000,000,000, and on June 30, 2013, the date of the remainder payment and the date of delivery of real estate (hereinafter referred to as “the instant second sales contract”) with ScarD, the buyer of the instant sales contract, and ScarDD, the Defendant and its Defendant, who were the seller, paid the down payment of KRW 1,00,00,00 as the down payment of the instant sales contract, agreed to cover the amount of KRW 2 sales contract as the down payment of the instant sales contract.

D. The Defendant, on January 3, 2014, failed to pay the remainder by June 30, 2013, which is the buyer of the instant sales contract. The Defendant succeeded to the buyer’s status of the instant second sales contract, and the Warsaw succeeds to the status of the buyer of the instant second sales contract. The amount of KRW 1,200,000,000 out of the sales price of the instant real estate increased to KRW 4,200,000,000, which was already received by the Defendant, and KRW 400,000,000,000, which was the intermediate payment, was paid to the Defendant until February 28, 2014, and the remainder of KRW 280,000,000,000, which was the intermediate payment, was paid to the Defendant by 200,000,0000,000 for the intermediate payment under the instant sales contract to the Defendant by 20,014.

E. On March 5, 2014, The Shari Shasaw prepared and delivered to the Defendant the consent and waiver of the sales contract (hereinafter “instant waiver”) with the following terms and conditions.

1. The consent to the cancellation of the contract and the renunciation of the contract 1. The seller of Jung-gu, Jung-gu, C, D2. Sale, and the buyer's indication: the defendant buyer's sales price payment agreement, prepared on January 3, 2014, with respect to the real estate Shari Shari Shari Co., Ltd., which was written on January 3, 2014, shall be cancelled due to the buyer's fault (non-performance of an intermediate payment). In addition, he waives all rights due to the above cancellation.

F. On March 7, 2014, the Defendant concluded a sales contract with the content that the instant real estate was sold to the E Housing Association in the purchase price of KRW 3,200,000,000 (contract deposit of KRW 400,000,000, the balance of KRW 2,800,000,000, the down payment for the contract deposit of KRW 80% at the time of recruitment of the prop consent agreement, and the payment for the remaining payment within three months after authorization for the establishment of the association). However, the instant third sales contract was rescinded due to the delay in payment of the price of the E Housing Association.

G. On April 19, 2017, the Defendant concluded a sales contract (hereinafter “instant sales contract”) with the content that the instant real estate was sold to the E Housing Association by April 19, 2017, by April 4, 2017 (hereinafter “the instant 4 sales contract”). On April 25, 2017, the Defendant concluded a sales contract with the content that the instant real estate was sold to the E Housing Association at KRW 3,240,000,000 for the first remainder of KRW 3,240,000 for the second remainder of KRW 1,100,000 for the second remainder of KRW, and the second remainder of KRW 1,00,000 for the second remainder of KRW 1,20,000 for the second remainder of KRW 1,20,000 for the second remainder of KRW 1,00 for the instant real estate (hereinafter “the ownership transfer registration”). On April 25, 2017.

H. On October 4, 2013, the Plaintiff filed an application for the instant payment order (hereinafter referred to as “instant payment order”) with the U.S. District Court 2013 tea4504 for loans and penalty totaling KRW 800,000,000, and delayed payment damages for the loans and penalty. The instant payment order was finalized on November 19, 2013.

I. On January 21, 2015, the Plaintiff, based on the original copy of the instant payment order, concluded a sale and purchase contract with the Defendant, who was the garnishee on June 24, 2005, and 578 square meters (175 square meters) of co-ownership share of 2/3,000,000 won paid on June 24, 2005, and 250,000,000 won paid on July 19, 2005, and 50,000,000 won paid on July 19, 2005, and 50,000,000 won, and filed an application with the Defendant for the said collection order from the court to the amount claimed (10,000,000 won, 50,000,000 won, and 251,205,000 won and 25,01,00 won.

[Ground of recognition] Facts without dispute, Gap's evidence 1 through 4, 7 through 13, Eul's evidence 3, 4, and 5 (including serial numbers), the inquiry and reply of the E-Housing Association of this Court, and the purport of the whole pleadings

2. Determination

A. The parties' assertion

1) The plaintiff's assertion

A) The Defendant is obligated to pay to the Plaintiff KRW 500,000,000, and damages for delay, in accordance with the instant order for correction.

B) The Defendant asserts that the claim subject to the collection order of this case was extinguished and the execution of the contract of this case was impossible by the Defendant. However, since the contract of this case became effective by transferring the real estate of this case to the E Housing Association with double assignment, the Defendant is obligated to pay the Defendant the sum of KRW 1,000,000 as a penalty for breach of contract to Akrosaw who is the purchaser of the contract of this case. If the Defendant transferred the real estate of this case to E Housing Association under an agreement with Akroas, the Defendant’s act constitutes a fraudulent act, and thus, the Defendant’s act constitutes a fraudulent act. Thus, the Defendant should at least return the amount equivalent to the down payment to the Plaintiff.

2) The defendant's assertion

According to Paragraph 5 of the instant contract, if Akroa Sha fails to observe the time limit for the payment of intermediate payment, the instant contract is automatically terminated. Although Akrosaw passed on February 28, 2014, the intermediate payment payment payment date stipulated in the instant contract was not made to the Defendant, the Defendant was not paid an intermediate payment of KRW 400,000. In this case, Akroas consented to the rescission of the instant contract by accepting the Defendant’s demand for the rescission of the contract in accordance with Paragraph 5 of the instant contract, and the Defendant prepared a written waiver of this case with the purport that all rights following the rescission of the instant contract are renounced, and delivered it to the Defendant. Accordingly, Akroas's claim for penalty, down payment, and intermediate payment against the Defendant by Akroas was extinguished. Thus, there is no claim for seizure under the instant collection order.

B. Determination

1) Determination as to the cause of claim

According to the above facts, the defendant is obligated to pay to the plaintiff, a collection creditor, KRW 500,000,000 and delay damages, unless there are other special circumstances.

2) Judgment as to the defendant's non-existence of seized claim

According to Paragraph 5 of the contract of this case, if the Shari fails to observe the time limit for the intermediate payment as stipulated in the contract of this case, the contract of this case is automatically terminated. Despite the fact that Shari has passed on February 28, 2014, which is the time limit for the intermediate payment as stipulated in the contract of this case, Shari failed to pay the Defendant an intermediate payment of KRW 400,000,000, which is the time limit for the intermediate payment as stipulated in the contract of this case, and Rari agreed to cancel the contract of this case by accepting the defendant's request for the rescission of contract in accordance with Paragraph 5 of the contract of this case, and delivered it to the defendant. Accordingly, according to the above facts of recognition, since Sariari did not prepare and deliver the waiver order of this case to the defendant around March 5, 2014, which is the time limit for the contract of this case to the defendant's intermediate payment and its obligation to return the contract of this case to the defendant's 3rd Housing Association.

As to this, the plaintiff did not waive the claim to return 1,00,000 won of the down payment to the defendant under the contract of this case by drawing up the shower 1,00,000 under the contract of this case, and since the court agreed to return the down payment of 1,00,000,000 won under the contract of this case on behalf of the defendant, as the court agreed to return the down payment under the above contract of this case to the shower Doro Doro Doro Doro Doro Doro Doro Doro Doro Doro al., and it is hard to view that the court's order to return the down payment of 0,000 won was written in collusion with the defendant E-Housing 's Association to pay the down payment of 00,000 won to the defendant 1,000,000 won, it is hard to view that there is no other evidence to acknowledge the down payment of 0,000,000 won of the E-Co.

3) Whether the preparation of the written waiver of this case constitutes a fraudulent act

The Plaintiff asserted that, if the Shari had agreed with the Defendant sold the instant real estate to the E-Housing Association, the act of the Shari’s act constitutes a fraudulent act. However, as seen earlier, the Shari failed to perform the obligation to pay part payments on the date of payment of part payments as stipulated in the instant contract, and the instant contract should have been automatically terminated in accordance with Paragraph 5 of the instant contract due to the reasons attributable to the Shariari. As such, even if the Shari allowed the instant real estate sale to the Defendant E-Housing Association, it is difficult to view it as a fraudulent act detrimental to the Shari’s creditor. Accordingly, it is difficult to accept the Plaintiff’s assertion on this part.

4) Sub-committee

Therefore, the claim for collection of this case should not be deemed as having been extinguished by the claim for seizure of this case. Therefore, the plaintiff's claim for collection of this case should not be justified.

2. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges in the future;

Judge Lee Jong-soo

Judge Lee Jong-chul

1) The term “instant contract” refers to the instant contract.

2) The term “PF lending date” appears to mean the PF lending date.