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

A. Notice of invitation of invitation of the apartment of this case

The Construction Co., Ltd. (hereinafter referred to as the “New Construction Co., Ltd.”) is the implementer and the contractor of the project for newly constructing and selling △△△△△ apartment (hereinafter referred to as the “instant apartment”) of 3 Dosan-si and 2, 245 households on the ground of the land outside the Dosan-si and 2, and it was a construction project for the implementation of the instant apartment (hereinafter referred to as the “instant apartment”). The public announcement was made on July 18, 2006 by obtaining the approval of the public announcement of the recruitment of the apartment of this case from the Asan-si market, the day

B. The instant housing sale guarantee contract, the housing sale trust contract, and the transfer agreement

1) On July 26, 2006, the Plaintiff entered into a housing sale guarantee contract with the prospective occupants of the above apartment as the guarantee creditor, setting the guaranteed amount as 34,547,700,000 won with respect to the apartment of this case and the period from the date of approval for the public announcement for the invitation of occupants to the date of registration of ownership preservation, and issued the house sale guarantee certificate from the Defendant (the certificate No. 6 of this case; hereinafter referred to as "the housing sale guarantee contract of this case"), and the major contents of the housing sale guarantee agreement attached to the above housing sale guarantee contract are as follows.

Article 3 (Contents of Guaranteed Obligations)

The plaintiff is liable for the performance of sale in lots or the refund of the down payment and the part payments paid, if it is impossible for the general public to perform the sale contract due to a guarantee accident pursuant to Article 106 (1) 1 (a) of the Enforcement Decree of the Housing Act.

Article 4 (Payment of Debts Not Subject to Guarantee and Remaining Occupancy Charges, etc.)

(1) The plaintiff shall not discharge his/her guarantee obligation for any of the following obligations:

2. Obligations owed by the principal debtor to a person other than the ordinary contractor under the Rules on Housing Supply, such as payment in kind, name of vehicle, double contract, etc.;

2) On July 25, 2010, the Plaintiff entered into a housing sale trust agreement with the Postal Construction Co., Ltd. with a view to managing and disposing of the instant apartment site and building when the Plaintiff performed a sales guarantee under the said housing sale guarantee agreement (Evidence A4; hereinafter “instant housing sale trust agreement”); between the Postal General Construction Co., Ltd. on July 21, 2006, and between the former Postal General Construction Co., Ltd., under the condition that “if the Postal General Construction becomes unable to continue the business due to inevitable reasons, the Postal General Construction Co., Ltd. bears the guarantee liability against the buyer pursuant to the Housing Construction Ordinance, etc., under the condition that the Postal General Construction Co., Ltd. will transfer the instant apartment site and its ground apartment building as well as all rights related to the instant implementation project (Evidence A5; hereinafter “instant transfer agreement”).

Article 2 (Trust Purpose)

The purpose of this trust is to manage, sell and dispose of trust real estate for the purpose of the sale guarantee (execution or refund) by the plaintiff who has made the sale guarantee pursuant to Article 106 (1) 1 (a) of the Enforcement Decree of the Housing Act when the Postal Construction constructed housing and accessory and welfare facilities on the land for the purpose of performing the sale contract to the buyer, or the Postal Comprehensive Construction is unable to execute the sale contract.

Article 3 (Public Notice of Trust and Trust)

① The comprehensive construction of friendly citizens is entrusted to the Plaintiff with the land, and the Plaintiff acquires it.

(2) The comprehensive construction of friendly citizens and the plaintiff shall make a registration of transfer of ownership and a trust that caused a trust on land without delay after concluding a trust contract, and the building shall make a registration of trust after its completion.

Article 6 (Succession Business, etc.)

(1) Where a comprehensive civil construction project is deemed impracticable for the performance of a sales contract due to dishonor, bankruptcy, company reorganization procedure, application for commencement of composition, etc. and then an application for change of a business entity designated by the plaintiff or the plaintiff is filed, the comprehensive civil construction project shall not raise an objection thereto.

(2) The trust affairs referred to in paragraph (1), designated by the plaintiff or the plaintiff, shall perform the affairs concerning the management, sale and disposal of real estate trusted for the performance of guarantee for sale.

Article 7 (Management, Operation and Disposal of Real Estate in Trust)

(2) In cases falling under Article 6, the plaintiff shall manage, operate, or dispose of trust real estate according to the following methods:

1. Housing construction and incidental services thereto;

2. Sale or disposal of real estate in trust; and

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(3) Where the plaintiff implements a refund or performs sale in lots to a purchaser pursuant to paragraph (2), if the principal of the trust and profits are made, the defendant may dispose of trust property at a reasonable method and price, and pay the amount of disposal of new property in the order falling under any of the following subparagraphs:

1. Taxes, public charges, and various expenses for the performance of trust affairs;

2. Claims of the plaintiff prescribed in Article 12 (2) and (3).

(4) Where there is any remainder under paragraph (3), the truster and beneficiary shall be refunded.

Article 17 (Payment of Expenses)

(1) The following expenses shall be paid by a comprehensive civil construction, and where a plaintiff who guaranteed sale as a result of the failure of comprehensive civil construction to perform a sales contract, implements a guarantee for sale, the plaintiff shall pay such expenses:

1. Taxes, public charges, and registration expenses for the trust property;

2. Design and supervision expenses and construction cost;

3. Fees for defect liability guarantee;

4. Repayment of loans, rental deposit, etc. and interest thereon;

5. Repair, preservation, and improvement expenses of real estate in trust, and fire insurance premiums;

6. Expenses incurred in handling affairs of sale in lots or dispositions.

7. Other expenses equivalent to the following subparagraphs:

(2) Refund in cases where a plaintiff performs refund because a comprehensive construction project operator is unable to perform a contract for sale in lots, and expenses incurred in performing refund shall be deemed expenses incurred in performing trust affairs.

(3) Where the Plaintiff pays expenses under paragraphs (1) and (2), it shall be paid with the trust principal or profits, and where it is impossible to pay them by subrogation at the Plaintiff’s expense

④ In the case of paragraph (3), the Plaintiff may request and receive payment from the General Postal Construction, and if necessary, he may have the Plaintiff deposit a reasonable amount in advance.

Article 18 (Appropriation of Expenses Incurred in Realization of Trust Property)

In the event that the repayment of a loan and its interest belonging to a trust property, loss incurred by the plaintiff without any negligence in the course of performing trust affairs, and other expenses incurred in performing trust affairs, and the plaintiff's substitute payment are insufficient to cover such expenses, a claim may be filed with the friendly general construction, and where the money falls short of this, the method and value deemed reasonable by the plaintiff may be sold

3) In accordance with Article 3 of the Housing Sale Trust Contract for the instant apartment site, the Plaintiff completed the registration of trust under the title of Article 16965 on March 15, 2006 for the Daejeon District Court of Daejeon as the ASEAN Branch Office of Branch of District Court for the settlement of the instant apartment site (the instant apartment site was still completed before the completion of its construction).

(c) Occurrence of a guarantee accident and Plaintiff’s refund performance;

1) On November 2008, when the construction of the instant apartment could no longer proceed with the construction of the instant apartment due to the aggravation of financial standing, the Plaintiff announced the instant apartment on November 12, 2008 that “the execution rate was less than the expected progress rate,” and decided on February 2009 to implement the method of implementing the sales guarantee for the buyers under the instant housing sales guarantee contract.

2) From March 2009 to June 2009, the Plaintiff completed the refund implementation by paying a total of KRW 12 billion to the buyers except for the buyers who were held to have been not liable for guarantee as an abnormal contractor due to false, borrowed name, payment in substitutes, etc.

D. Additional registration of this case

On August 18, 2008, the registration of preservation of ownership was completed in the name of friendly comprehensive construction under the name of friendly comprehensive construction upon the entrustment of registration by Sam-gu Mutual Savings Bank on the apartment of this case, and on August 25, 2008, the registration of preservation of ownership was completed with respect to the above apartment of this case, and on August 25, 2008, the additional registration was completed to the effect that the registration of preservation of ownership was prohibited (hereinafter “the additional registration of this case”).

E. Registration of establishment of the neighboring establishment of the instant case

On January 2, 2009, the defendant completed the registration of creation of a mortgage with the maximum debt amount of KRW 21.8 billion against the 126 households among the apartment buildings of this case, including each real estate listed in the separate sheet, as the Asan Branch of Daejeon District Court No. 213, Jan. 2, 2009, and the above 126 households apartment units as joint collateral.

[Ground of recognition] Evidence Nos. 3 through 9, Evidence No. 10-1, 2, Evidence No. 11 through 15, Evidence No. 16-1, and Evidence No. 17, and the purport of the whole pleadings.

2. Judgment on the main defense of this case

A. Summary of the main defense

In order to preserve the right to claim ownership transfer registration in accordance with the instant housing sale trust contract and the transfer agreement regarding the comprehensive construction for the public interest, the Plaintiff seek against the Defendant for the cancellation of the registration of the establishment of the instant root construction in lieu of the comprehensive construction for the public

In regard to this, the defendant can exercise the right of indemnity against the defendant of the Domin General Construction on the basis of the right of indemnity against the Domin General Construction on the basis of the right of indemnity against the Domin General Construction, and the transfer agreement of this case requires the plaintiff to transfer all ownership of the building of this case to the plaintiff for the same reason as a condition precedent. Since the plaintiff has not fulfilled the obligation of indemnity against the whole 245 households of the apartment of this case, and the plaintiff does not specify the obligation of refund among each real estate listed in the separate sheet, it cannot be deemed that there is the right of claim for ownership transfer registration against the whole real estate listed in the separate sheet, and there is no need for the plaintiff to exercise the right of subrogation for the cancellation of the establishment registration of the Domin General Construction on the Domin General Construction on the ground that the lawsuit of this case is unlawful because there is no preserved claim or there is no need to preserve it.

B. Determination

1) Determination as to the assertion that there is no preserved claim

In the transfer agreement of this case, the purport of the contract of this case is as follows: (a) under the condition that the plaintiff et al. will assume the responsibility for guarantee against the buyer under the housing construction-related Acts and subordinate statutes; (b) the fact that the plaintiff et al. will transfer all rights related to the execution project of this case including the apartment of this case to the plaintiff; (c) even according to the terms and conditions of the above agreement, the plaintiff merely set the terms and conditions of suspending the buyer's liability for guarantee; (d) it cannot be deemed as having set the terms and conditions of suspending the plaintiff's obligation for guarantee; and (e) the purport of the whole pleadings is as follows; (e) the housing sale trust agreement of this case is concluded for the purpose of managing and disposing of the real estate of this case (Article 2 of the trust agreement of this case); and (e) the plaintiff et al. or the person designated by the plaintiff (hereinafter "the plaintiff et al.") to continue to implement the comprehensive construction contract of this case, and thus, it cannot be seen as having been able to cover the expenses of the comprehensive construction contract of this case.

2) Determination on the assertion that there is no need to preserve the claim

A) The obligee may exercise the obligor’s right on behalf of the obligor in order to preserve the obligor’s claim. Thus, in a case where the obligee’s right to preserve and exercise the obligor’s right is closely connected with the obligor’s right to exercise the obligee’s right in subrogation and the obligee’s right to exercise the obligee’s right is likely to be unable to obtain the complete satisfaction of the obligee’s claim unless the obligee exercises the obligee’s right in subrogation of the obligee’s right, barring special circumstances, such as the exercise of the obligee’s right in subrogation of the obligor’s right to exercise the obligee’s right to exercise the obligee’s right to exercise the obligee’s right in subrogation of the obligor’s right to exercise the obligee’s right in subrogation of the obligor’s right to claim, barring special circumstances, such as where the exercise of the obligee’s right in subrogation of the obligor’s right to exercise the obligee’s right to exercise

B) In this case, in the event that the Plaintiff did not exercise the right to cancel the registration of creation of a collateral against the Defendant of the Postal Construction, the Plaintiff becomes subject to the transfer of incomplete ownership bearing the burden of collateral security, and it is reasonable to deem that the Plaintiff’s exercise of the right to exercise the right of comprehensive construction by subrogation is necessary to ensure the effectiveness and appropriateness of the implementation of its claim. This part of the Defendant’s assertion is without merit

3. Judgment on the merits

A. The parties' assertion

The plaintiff asserts that the registration of the establishment of the establishment of the neighboring mortgage of this case was completed after the supplementary registration of this case, and that the defendant was actively involved in the act of breach of trust of friendly Construction, and thus, it is null and void. Thus, the defendant is obligated to implement the registration procedure of cancellation of the establishment

Accordingly, the defendant asserts that since the defendant extended part payments to the prospective occupants of the apartment of this case to the prospective occupants, and the prospective occupants agreed to complete the registration of ownership transfer with respect to the apartment to be completed later, the registration of the establishment of the neighboring apartment of this case to the defendant as the collateral security at the time of completing the registration of ownership transfer, the registration of the establishment of the neighboring apartment of this case constitutes "the case with the consent of the prospective occupants" or "the case with the consent of the prospective occupants" or "the case with the joint and several liability for the loan to the prospective occupants at the time of the above part payment loan, the defendant's direct execution of the loan to the prospective occupants who are the project undertaker for the purpose of housing purchase fund and the economic substance are the same as the case with the additional registration under the Housing Act, the registration is valid, i.e., the exceptional reason that the registration is permitted even after the additional registration under the Housing Act, i.e., "the case where the occupants of the relevant apartment of this case receive the loan from the financial institution for housing purchase fund.

B. Determination on the assertion that the registration is invalid against the supplementary registration of prohibited matters

1) Article 40(1) main text of the Housing Act (amended by Act No. 9366 of Jan. 30, 2009) provides that with respect to the housing and site constructed under the Housing Act, the act of establishing a security right, such as mortgage, etc., on the relevant housing and site without the consent of the prospective occupants for the period of 60 days after the date of application for the public announcement of the public announcement of the invitation of occupants shall be restricted (the main text of Article 40(1)): Provided, That in cases prescribed by the Presidential Decree to promote the construction of such housing, the act of exceptionally allowing the establishment of a security right, etc., such as mortgage (the proviso of Article 40(1)), and the purport that the establishment of a limited real right, etc., shall be prohibited against a project proprietor (Article 40(3)), and it shall be null and void if a third party takes over the relevant housing site or housing or has established a limited real right after the date of the public announcement of the invitation of occupants, and the Enforcement Decree of the same Act (amended by Presidential Decree No. 21).

2) In this case, as to the apartment house of this case, after the completion of the additional registration of this case on August 18, 2008, the fact that the establishment registration of the mortgage of this case was completed on January 2, 2009 is as shown in the above 1. D and E. However, in light of the purport of the whole pleadings, the defendant prepared a loan agreement and an agreement with the Domination Construction Co., Ltd. on the loan of this case to the 200 million won, and the above loan of this case to the 200 billion won for the purpose of the above 20 billion won for the purpose of the establishment of the loan of this case to the Domination Construction Co., Ltd., and the 200 million won for the above loan of this case to the defendant as the Domination Construction Co., Ltd., the above loan of this case to the 200 million won for the purpose of the above Domination Construction by the Domination Construction Co., Ltd., the above 2016 billion won for the above loan of this case.

As to this, the plaintiff asserts to the effect that the establishment of mortgage right is invalid because the Enforcement Decree of the Housing Act does not have any ground for establishing mortgage right on the unbuilt building, so long as the apartment building of this case was an independent building that can have completed the registration of establishment of mortgage right, it shall be deemed that it has the registration ability to complete the registration of establishment of mortgage right, which is a limited real right, and Article 40 (1) of the Housing Act prohibits the establishment of limited real right on the "construction" regardless of whether the construction is completed or not, and the above prohibition provision is more effective if it is possible to establish limited real right, etc. as an independent building before the completion of construction, and this part of the plaintiff's assertion is not acceptable [the case where the establishment of limited real right, etc. is allowed after the completion of construction of the house of this case] under the proviso of Article 40 (5) of the Enforcement Decree of the Housing Act (the case where the establishment of limited real right, etc. is not allowed after the completion of construction of the house of this case as stated in the revised Enforcement Decree No. 361 of the Housing Construction Promotion Act,". 201.

3) Furthermore, even if the registration of the establishment of a mortgage in the vicinity of the instant housing does not fall under an exception under the Enforcement Decree of the said Housing Act, it was impossible to continue the instant construction project due to the aggravation of financial standing (1. c. 1 in the foregoing). The Plaintiff was transferred all rights related to the instant implementation project against the friendly Construction in accordance with the instant housing sale trust agreement and the transfer agreement (2. b. 1 in the foregoing), and the Plaintiff was the one who completed the implementation of the sales guarantee under the said contract by the method of repayment as of the date of the closing of argument in the instant case. Thus, the obligation to transfer the ownership of the instant apartment to the remaining buyers of the friendly Construction (a non-ordinary contractor who was refused to implement the refund from the Plaintiff) was de facto impossible, and there was no more prospective occupants in the instant apartment.

Meanwhile, the Housing Act does not explicitly stipulate that "if a prospective occupant does not exist, the prospective occupant does not have any additional registration," but Article 40 (5) of the Housing Act provides for the prohibition items after the date of additional registration under Article 40 (5) of the Housing Act is intended to protect prospective occupants (see Supreme Court Decision 2004Da46649, Nov. 26, 2004). In light of the above normative purpose, "where the prospective occupant does not exist any longer after the additional registration of prohibited items," the necessity of additional registration becomes extinct, and accordingly, the registered rules of the Supreme Court also provides that "where a prospective occupant has entered into a contract for sale in lots pursuant to the public notice of tenant recruitment, but there is no prospective resident in the relevant house due to the invalidation or cancellation of the sales contract later, the project owner may file an application for cancellation of additional registration prohibition items attached to a document evidencing such fact."

Therefore, even if the establishment registration of the establishment of the neighboring mortgage of this case was completed after the supplementary registration of this case, it is reasonable to view that the registration was valid in accordance with the substantive relationship as the grounds for cancellation of the above supplementary registration occurred thereafter.

C. Determination on the assertion that the invalidation is contrary to the public order and good morals

1) In order to become null and void by an anti-social legal act, the act of the seller's breach of trust and the act of the mortgagee's active participation in the seller's breach of trust is not sufficient to say that the mortgagee is aware of the sale of the object to another person, and at least the sale of the object should be the extent to which the contract is concluded by requesting the settlement of mortgage or inducing the mortgagee to do so (see Supreme Court Decision 97Da26524, Feb. 10, 1998, etc.).

2) On November 12, 2008, the Minister of Health and Welfare became unable to continue the execution project of the instant apartment complex, and the obligation to complete the registration of ownership transfer on the instant apartment pursuant to the instant housing sale trust agreement and a transfer agreement was established against the Plaintiff (Article 2-2-2) (Article 1-2). The Defendant completed the registration of ownership transfer on January 2, 2009. The fact that the registration of the instant apartment site was completed in the name of the Plaintiff on March 15, 2006 is recognized as follows: (b) and (e) the fact that the registration of the instant apartment site was completed in the name of the Plaintiff on March 15, 2006; and (c) the Defendant was fully aware that the instant apartment site was concluded between the Defendant and the Plaintiff by inspecting the land register for the instant apartment site at the time of collective payment loan to the buyer. However, the above recognition alone is insufficient to recognize that the Defendant did not have any other reason to recognize that there was a lack of sufficient evidence to acknowledge this part of the Plaintiff’s act of breach of trust.

4. Conclusion

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

[Attachment List omitted]

Judges Egypt (Presiding Judge)