[가압류이의][공2005.1.1.(217),40]
Whether it is possible to register or seize a site for housing construction for which additional registration of prohibited matters prescribed in Article 32-3 (3) of the former Housing Construction Promotion Act is completed (negative)
The purpose of Article 32-3 of the former Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 2003) is to protect the recipients of housing after the approval of the public announcement of invitation of residents, in principle, to make a supplementary registration of prohibited matters concerning the housing construction site prior to the approval of the public announcement of invitation of residents, and thereafter prohibit the disposal of the housing construction site without the consent of the recipients of housing. Since the effect of a change in real rights by a disposal prohibited from disposal or seizure, provisional seizure, provisional disposition, etc. is denied, with respect to the housing construction site whose supplementary registration of prohibited matters has been completed, registration, seizure, provisional seizure, provisional disposition, etc. on the grounds of disposal prohibited from disposal shall not be allowed.
Article 32-3 of the former Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 2003) (see current Article 40 of the Housing Act)
[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant-appellant-appellee)
Creditors
Pungsan Development Co., Ltd.
Daegu High Court Decision 2004Na125 delivered on July 22, 2004
The judgment below is reversed, and the case is remanded to the Daegu High Court.
The grounds of appeal are examined.
1. Article 32-3 (1) of the former Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 2003; hereinafter referred to as the "Act") provides that "the project undertaker shall not perform an act falling under any of the following subparagraphs without the consent of the person who is supplied with the relevant housing for a period of 60 days from the date of application for approval for the announcement of invitation of residents for the ownership of the relevant housing constructed by the housing construction project after obtaining approval of the project plan under Article 33 (1): Provided, That the same shall not apply to cases prescribed by Presidential Decree in order to promote the construction of the relevant housing or housing site; 2. Where the housing or housing site is constructed by a person who is supplied with the relevant housing or housing site by means of sale or provisional seizure after the date of approval, etc., which is prohibited from disposing of the relevant housing or housing site; 3. The same shall not apply to cases where the project undertaker becomes prohibited from disposing of the relevant housing or housing site by means of sale or provisional seizure after the date of the relevant housing site;
2. However, as the court below duly confirmed, the provisional seizure of this case was made after the additional registration of prohibited matters under Article 32-3 (3) of the Act regarding the real estate of this case was completed, and according to the records, it is clear that the provisional seizure of this case does not fall under the cases prescribed by the Presidential Decree under the proviso of Article 32-3 (4) of the Act. Thus, the provisional seizure of this case is not permitted.
Nevertheless, the court below held that the purpose of the above provision is only invalid in relation to the provisional seizure, etc. made after the above additional registration in order to protect the person who is supplied with the housing, and it does not make absolute invalidation in relation to any other person such as the project undertaker, etc., and therefore, the debtor who does not fall under the person who is supplied with the housing cannot raise an objection to the provisional seizure of this case under the above provision of the law. Thus, the court below erred by misapprehending the legal principles on the interpretation of Article 32-3 (1), (3), and (4) of the Act, which affected the conclusion of the judgment.
3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Ko Hyun-chul (Presiding Justice)