[Defendant-Appellant] District Housing Association and two others (Attorney Gyeong-sik, Counsel for defendant-appellant)

Defendant (Attorney Han-soo et al., Counsel for defendant-appellant)

October 16, 2012

Suwon District Court Decision 2010Kadan27678 decided January 13, 2012

1. In accordance with the expansion of the claim of the Defendant-Counterclaim Plaintiff’s preliminary counterclaim at the trial, the judgment of the court of first instance is modified as follows.

The Plaintiff (Counterclaim Defendant) shall pay KRW 32,549,366, respectively to the Defendant (Counterclaim Plaintiff) each of the parts of the section 36.48 square meters, 7, 8, 11, 12, and 7 attached Table 1, 2, 3, 3, 4, and 1 among the buildings listed in the attached Table 2 of the real estate list No. 2 attached to the Defendant (Counterclaim Plaintiff) connected each point of the section 53.50 square meters and the table 5, 6, 7, 12, and 5 of the same drawings, which successively connects each point of 36.48 square meters, 7, 8, 11, 12, and 7 of the section 24.48 square meters and the part 8, 9,10, 11, and 8 of the same drawings, which successively connect each point of 25.4 square meters to the Defendant (Counterclaim Plaintiff).

2. Each of the appeals filed by the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff)’s claim for the main counterclaim that has been changed in exchange from the trial of the Plaintiff (Counterclaim Plaintiff) is dismissed.

3. Of the total costs of the lawsuit, the part incurred by the principal lawsuit shall be borne by the Defendant (Counterclaim Plaintiff) and 70% of the part incurred by the counterclaim shall be borne by the Plaintiff (Counterclaim Defendant) and the remainder shall be borne by the Defendant (Counterclaim Plaintiff).

4. The portion paid with the amount under paragraph (1) may be provisionally executed.

1. Purport of claim

A. Purport of the principal claim

The Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) successively connected the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) with each point listed in the attached Table 1, 2, 3, 4, and 1 among the buildings listed in the attached Table 2, the part of the attached Table 5, 6, 7, 12, and 5, each point indicated in the attached Table 5, 7, 8, 11, 12, and 7, and 24.48 square meters, and the part of the portion of the draft draft draft draft draft draft draft draft draft draft draft draft draft draft draft draft draft draft draft draft to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”), which are successively connected with each point of 36.48 square meters, 7, 8, 11, 12, and 7, and each point of 8, 9, 10, 11, and 8, 25.44 square meters (hereinafter “the part of this case”;

B. Claim of the counterclaim

The primary purport of the claim is that the plaintiffs receive KRW 13,946,767 from the defendant, at the same time, they shall carry out each procedure for the registration of ownership transfer for each of 1/3 shares of the buildings listed in the separate sheet 2 attached to the non-party Ledrid Consulting Co., Ltd. on May 28, 2002 (the defendant directly sought the implementation of the procedure for the registration of ownership transfer based on the sale on June 16, 2005 to the plaintiffs in the first instance trial, and the defendant directly sought the implementation of the procedure for the registration of ownership transfer based on the sale on June 16, 2005 to the plaintiff of Ledddrid Consulting's right to claim the ownership transfer from

Preliminary claim: It is as stated in Paragraph 1 of this Article (the defendant sought payment of KRW 76,446,786 from the first instance court and expanded the claim for preliminary counterclaim in the trial court).

2. Purport of appeal

A. The plaintiffs

The part against the plaintiffs in the judgment of the court of first instance shall be revoked. All the defendant's primary and conjunctive counterclaims are dismissed.

B. Defendant

The part of the judgment of the court of first instance against the defendant shall be revoked. The plaintiff's claim of this case shall be dismissed, and the plaintiffs shall be paid KRW 13,946,767 to the defendant, and the plaintiffs shall, at the same time, perform each procedure for the registration of ownership transfer for each of the 1/3 shares of the buildings listed in the attached Table 2 of the real estate list of the attached Table 2 to the non-party Hadd Co., Ltd. on May 28, 2002, and the judgment

1. Determination as to the basic facts and the principal claim

The reasoning for this part of the court's explanation is as stated in Paragraph (1) and Paragraph (2) of Article 420 of the Civil Procedure Act, except for the fact that " Leddrid consulting is currently insolvent," in Paragraph (f) of Paragraph (1) of Article 1 of the part of the judgment of the court of first instance, "Redrid consulting is currently insolvent, since the registration of preservation of ownership in the name of the plaintiffs was completed on the underground shopping mall of this case, it does not take any legal measures against the plaintiffs until now, and it is currently insolvent."

2. The portion changed in the appellate court

A. Determination on the main claim and defense in the counterclaim

The defendant asserts that, on May 28, 2002, the plaintiffs entered into a sales contract on the underground shopping districts of this case, which are non-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-de

On the other hand, it is reasonable to view that the sales contract between the plaintiffs on the underground shopping districts of this case and the Ledrid consulting has been terminated due to the cancellation or implied termination of agreement due to the refusal of performance, on the grounds that the plaintiffs sought delivery of the underground shopping districts of this case from Ledrid consulting on the grounds of the payment of the sale price of the Ledrid consulting, and that Leddrid consulting has not taken any legal measures until eight years have passed since the registration of the plaintiffs' preservation of ownership was completed.

Therefore, since the obligation of the plaintiffs to transfer the ownership of the underground prices of this case to the e-board consulting was terminated by the cancellation of the above sales contract, this part of the defendants' claims and arguments are without merit.

B. Determination on the conjunctive claim and the pertinent assertion among the counterclaim

The defendant paid 97,648,100,000 won out of 1.132 billion won for the building of this case to the plaintiffs. Among them, since the above 97,648,100 won is included to the sale price for the underground shopping districts of this case, the defendant asserted that the plaintiff cannot respond to the plaintiff's request for delivery before receiving the above 97,648,100 won in subrogation of ledrity consulting, which is in insolvent condition, and at the same time, requested the plaintiffs to pay 32,549,366 won each ( = 97,648,100 ± 3,000 won) to the plaintiffs due to the defendant's delivery and redemption of the right to counterclaim.

In addition, in case where the obligor bears several obligations to the same obligee for the same kind of obligation, and the parties did not designate the obligation to be appropriated for the repayment, in accordance with Article 477 of the Civil Act. In particular, according to Article 477 subparagraph 4 of the Civil Act, if the order of statutory appropriation of obligation is equal under Article 477 subparagraph 4 of the Civil Act, it shall be appropriated for the repayment of each obligation in proportion to the amount of the corresponding obligation. Unlike the statutory appropriation of obligation according to the above proportional appropriation of obligation, unlike the above proportional appropriation of obligation, a person who claims that the above obligation has been appropriated for the full amount of the corresponding obligation shall be liable to assert and prove the fact in preference to the legal effect which is more favorable to himself by the court appropriation of obligation, the designation of the appropriation of obligation, or the agreement between the parties on the appropriation of obligation, or the fact that the pertinent obligation has been appropriated for the full amount of the corresponding obligation in preference to the statutory appropriation of obligation shall be appropriated in proportion to the amount of each obligation (see Supreme Court Decision 2003Da27379, Feb. 29, 20197, 27, 2019).

However, comprehensively taking account of the overall purport of the arguments as to Gap evidence 3 and Eul evidence 15, Lebrid consulting paid to the plaintiffs KRW 942 million out of the purchase price of the building of this case 1.132 million. The plaintiffs' order of 201, 202, 203, 204, 205, 204, 301, 401, 402, 404 and 402 among the buildings of this case - 94, 307, 407, 407, 401, 407, 4057, 407, 401 and 404, 607, 307, 401, 407, 407, 407, 404, 501, 507, 407, 504, 507, 401 of the above sectional ownership of this case.

Therefore, as seen earlier, the contract for the sale of the underground prices between the plaintiffs and Ledrid Consulting has already been cancelled, so the plaintiffs are obligated to return to Ledrid Consulting each of the above 97,648,100 won and 32,549,366 won and 1/3 of the above 97,648,100 won as the performance of the duty to restore. The defendants can seek the return of the above amount from the plaintiff by subrogation of Leddrid consulting (the above duty to return to Leddrid consulting was deposited at least 13,1250,00 won as the price for the sale of the underground prices of this case). Accordingly, the plaintiffs' obligation to deliver the above duty to the plaintiffs of Ledrid Consulting to the plaintiffs of Leddrid consulting with the duty of delivery of the above underground prices of this case, and the plaintiffs are obligated to pay the plaintiff's conjunctive price of this case to the defendant at the same time as the defendant's conjunctive price of this case and the defendant's claim for partial extension of the plaintiff's claim for counter.

As to this, the plaintiffs asserted that, in the case of Suwon District Court 2006Gahap4215, the plaintiffs paid 443,427,500 won remaining in the sale price paid by Leddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddds.

3. Conclusion

Therefore, the plaintiffs' claims are accepted as reasonable, and the defendant's main counterclaim is dismissed as it is without merit, and the defendant's main counterclaim expanded in the trial of the court of appeal is accepted as reasonable, and since part of the conclusion is unfair, Article 3 of the judgment of the court of first instance which has different conclusions is accepted as part of the defendant's appeal and it is decided to modify the above Article 3 of the judgment of the court of first instance, and the plaintiff's appeal and the defendant's main counterclaim changed in exchange at the trial of the court of first instance are dismissed, respectively.

[Attachment]

Judges Han Dong-soo (Presiding Judge)