[입주권명의변경][집39(2)민,333;공1991.7.15.(900),1744]
A. Whether the so-called 15 tenant tenant's right to occupy a residential area is invalid as a juristic act contrary to social order (negative)
B. Whether, in any case, the condition that the seller should live in the sales contract for the occupancy right of the above tenant until the tenant card is issued at the present residence (affirmative)
(c) Requirements for the seller to become an unfair legal act and the burden of proof of assertion in the seller's side;
(d) The case holding that the contract cannot be deemed null and void as it constitutes an unfair legal act solely on the ground that the seller, in a sales contract for the occupancy right of the above tenant, had no experience to predict the occupancy right to have any value in the future, and thus, the right to move in was transferred in a rush manner.
A. 15 or 15 copies of the right of purchase (so-called tenant occupancy right) that a tenant residing in a house in a housing improvement project zone can purchase an apartment house to be newly constructed from the Housing Improvement and Redevelopment Association, and the right of sale (so-called tenant occupancy right) can only be deemed null and void as a juristic act contrary to the social order on the ground that it was conducted for the purpose of speculation.
B. In the sales contract for the right to occupy the above tenant, even if in any case the seller attached the condition that the tenant be living in the present residence until the tenant card is issued, so long as the contractual condition is agreed upon by the free will of the parties to the contract, such condition shall be an agreement that restricts the freedom of residence, and shall not be deemed unconstitutional and invalid as an agreement contrary to social order.
C. In order to invalidate a sales contract as an unfair legal act on the part of the seller, the seller must assert that the sales price was considerably intermittent compared to the real price, and subjectively, the seller was in the status of stuff, rashness, experience, etc., and that the buyer was aware of the above facts.
(d) The case holding that the contract cannot be deemed null and void as it constitutes an unfair legal act solely on the ground that the seller, in a sales contract for the occupancy right of the above tenant, had no experience to predict the occupancy right to have any value in the future, and thus, the right to move in was transferred in a rush manner.
(d)Article 104(b) of the Civil Code; Articles 14 and 103(c) of the Constitution of the Republic of Korea; Articles 188 and 261 of the Civil Procedure Act;
A.B.C. (d) Supreme Court Decision 90Da19787 delivered on May 28, 1991 (dong) c. 63Da681 delivered on August 31, 1964, Supreme Court Decision 80Da2012 delivered on December 22, 1981 (Gong198, 1265) 86Meu563 delivered on September 13, 198
Plaintiff
Defendant-Appellant Park Jae-chul, Counsel for the defendant-appellant
Seoul High Court Decision 90Na32577 delivered on November 23, 1990
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
1. According to the facts duly established by the court below, the defendant was living as a tenant in the housing improvement project zone of the housing improvement redevelopment project zone of non-party 1 in the non-party 1 calendar, and became a participating partner who can purchase at least 35 square meters of apartment units to be newly constructed in the non-party 1 association, and the right to purchase the unit was sold at KRW 9,000,000 and received all the price from the plaintiff.
2. As to the grounds of appeal Nos. 2 and 3
The Plaintiff purchased 15 or more tenants' right to move in from the above non-party partnership and it was conducted for the purpose of speculation. The sales contract between the Plaintiff and the Defendant alone cannot be deemed null and void as a juristic act contrary to social order. In addition, even if in any case the seller attached the condition that the tenant should live in the present place of residence until the issuance of the tenant's card, so long as the contractual condition is agreed upon by the free will of the parties to the contract, such condition is an agreement that restricts the defendant's freedom to move in, and is contrary to the Constitution and the social order, it cannot be deemed null and void as an agreement contrary to social order.
The judgment of the court below to the same purport is justified and correct.
2. Regarding ground of appeal No. 1
In order for a sale contract to be null and void as an unfair juristic act on the part of a seller, the seller must prove that the sale price was considerably intermittent compared to the actual price, and subjectively, the seller was in the status of gambling, rashness, and experience, and that the buyer was aware of the above facts (see, e.g., Supreme Court Decision 63Da681, Aug. 31, 1964; Supreme Court Decision 80Da2012, Dec. 22, 1981; Supreme Court Decision 86Da563, Sept. 13, 198).
According to the records, even according to the defendant's assertion itself, at the time of November 28, 198 when the defendant sold it to the plaintiff, the defendant could receive KRW 9,00,000,00 whose price was reduced to the maximum of KRW 3,50,00 as of May 28, 198 (the defendant's preparatory brief on May 24, 1990) and theory, such as the defendant's theory and theory, it is difficult for the defendant to take a director at a different place, so it was harsh to the defendant's interests, and there was no experience to predict that the right to move into a place has any value in the future, and even if the seller agreed that the right to move into a house should not be additionally required even if the price was increased at the time of the refusal of the right to move into a house, such fact alone cannot be said to be null and void as it constitutes an unfair legal act.
The judgment below to the same purport is correct and there is no error of incomplete deliberation, interpretation and application of statutes, as pointed out in the theory of lawsuit. The arguments are groundless.
3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Choi Jae-ho (Presiding Justice)