2017 Gaz. 205020 Building Names (Delivery)

A Regional Housing Association

B (Name B (Name C)

December 7, 2017

February 8, 2018

1. The defendant shall deliver to the plaintiff the real estate stated in the attached Form.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The text shall be as shown in the text.

1. Facts of recognition;

A. On December 4, 2013, the Defendant concluded a sales contract with regard to D and Busan, the E-gu, 33 square meters, F large 9 square meters, and F-based buildings (hereinafter “the instant real estate”) with regard to KRW 180 million. Of the sales price, the Defendant received payment of KRW 18 million on December 2, 2013, and paid KRW 72 million by D, the buyer, by succeeding to the secured obligation established for the purpose of sale.

B. On January 3, 2014, the Defendant completed the registration of the right to claim ownership transfer on the ground of the promise to sell and purchase the instant real estate to D on December 21, 2013.

C. On September 5, 2014, the Plaintiff concluded a sales contract with the Defendant and the instant real estate on September 4, 2014 by paying the down payment of KRW 130 million out of the down payment of KRW 336 million on September 4, 2014, and by paying the balance of KRW 260 million on January 30, 2015. The relevant provisions in the sales contract are as follows, and there is no provision regarding the motive for transfer of ownership other than Article 5.

· An explanation of the real estate mentioned in Article 4 shall be made simultaneously with the payment of the balance.

· If there is a reason to restrict the exercise of ownership, such as a mortgage, superficies, right of lease, etc. established on the said real estate, or if there is any unpaid amount of taxes, public charges and other charges, the seller shall remove the defects and charges, etc. of such rights and transfer the full ownership to

· In the event that the buyer is unable to pay the remainder of the contract by the due date, this contract shall become null and void and the down payment shall not be claimed under this contract.

D. At the time of the conclusion of the instant sales contract, the right to claim the transfer of ownership on the instant real estate was registered, and the right to claim the transfer of ownership on December 31, 2004, set the right to collateral security of KRW 80 million for the mortgagee G with the maximum debt amount of KRW 30 million.

E. On September 4, 2014, the Plaintiff remitted KRW 130 million to the Defendant as down payment, and the Defendant, on September 5, 2014, remitted KRW 18 million among them to D.

F. Meanwhile, on June 2, 2014, the Plaintiff remitted KRW 30 million to D, and on October 30, 2014, the Plaintiff wired KRW 100 million out of the remainder under the name of an international trust (ju) to the Defendant.

G. On November 3, 2014, the Defendant remitted KRW 100 million transferred from an international trust (ju) to I, the Plaintiff’s agent, and I remitted KRW 100 million to D on November 4, 2014.

H. On May 26, 2015, D cancelled the registration of the right to claim transfer of ownership on the instant real estate due to the cancellation on March 4, 2015 of the same year.

I. On January 6, 2015, the Defendant filed a lawsuit seeking registration of cancellation of the right to collateral security with the Busan District Court’s Dong Branch Branch, 2015Kadan443, which had been pending in the said lawsuit. On October 6, 2015, the Plaintiff deposited KRW 80 million with the Defendant or G on October 7, 2015, on the ground that the registration of transfer was completed on the ground of sale on August 10, 2015 as the receipt of registration office with the Busan District Court’s Dong Branch, 75605, which had been pending in the said lawsuit.

(j) On June 21, 2016, the Plaintiff deposited KRW 80 million, and the Defendant received KRW 59 million and KRW 21 million, respectively.

[Ground of recognition] Unsatisfy, Gap 1 to 12 evidence, Gap 1 to 3 evidence (including additional number), the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The sales contract of this case is actually concluded with D, and the plaintiff paid all the purchase price, and the defendant asserts that the defendant has a duty to deliver the real estate contained in the attached Form (hereinafter "the building of this case") among the real estate of this case to the plaintiff.

B. Defendant’s assertion

Although the down payment of KRW 130 million and the down payment of KRW 80 million have been received, the remainder has not been paid. Although an international trust (ju) has remitted KRW 100 million, the representative of the agency requested the return of the real estate so that he/she has mistakenly remitted the money. Furthermore, the Defendant made a promise to sell and purchase the real estate of KRW 200 million and received the down payment of KRW 180 million, but D did not pay the remainder, and the Defendant did not have any obligation owed to D to D as the down payment that was paid by the Plaintiff, by cancelling the pre-sale, and returning all the remainder to D as the down payment that was paid by the Plaintiff.

3. Determination

We examine whether the Plaintiff paid all the purchase price of the instant real estate to the Defendant.

The Defendant also recognized that he received KRW 310 million, totaling KRW 130 million equivalent to the maximum debt amount of the right to collateral security between KRW 100 million and KRW 80 million, out of the remainder of the purchase price of KRW 336 million and the remainder of the down payment of KRW 130 million. The Defendant returned out of the remainder of the remainder the amount of KRW 100 million by mistake of the representative of the agency. However, it is insufficient to recognize that the Defendant returned the remainder of KRW 100 million to the International Trust Co., Ltd., which is the payer, or to Table I, other than the Plaintiff.

Examining whether the Plaintiff can be deemed to have paid KRW 30 million to D on June 2, 2014 as the purchase price of the instant real estate, with regard to the remaining payment of KRW 25 million, the Defendant asserted that D failed to pay any balance and cancelled the purchase and sale reservation and returned the down payment received. However, as seen earlier, the Defendant paid KRW 18 million on the day out of the purchase and sale proceeds of the instant real estate between the Defendant and D, and treated as having paid the remainder of KRW 72 million as having taken over the secured obligation, and there is no balance that D additionally paid to the Defendant, with regard to the cancellation of the purchase and sale promise, and that D did not present any data. In full view of the fact that D received KRW 10 million from the Defendant on September 5, 2014, and received additional KRW 100 million from D and paid KRW 100 million to the Plaintiff on May 2, 2015, the Plaintiff did not take measures to cancel the ownership transfer registration against the Plaintiff on the instant real estate deposit basis of G 1500.

Thus, the defendant is obligated to deliver the building of this case to the plaintiff, since he received 340 million won more than the purchase price under the sales contract of this case from the window.

4. Conclusion

Therefore, the plaintiff's claim is accepted on the ground of the reasons.

Judges Lee Jin-hee

1) On December 2, 2012, the "Register" seems to be a clerical error.