[2] Requirements to constitute a bankruptcy claim and whether a simple expectation of the occurrence of a claim constitutes a bankruptcy claim (negative)

[3] In a case where a real estate management trust has been established for the purpose of preserving and managing the ownership of a rental house until the completion of sale in lots, whether the “right of a rental business operator to receive a rental house from a trust company” can be a subject of a deposit (negative in principle), and the validity of a pledge of right to benefit from a trust (=negative)

1. Objects of adjudication of this Court;

According to the records, some of the plaintiffs of the judgment below can be known to the court of final appeal that has lawfully withdrawn the lawsuit. Therefore, in the judgment of the court below, the remaining part of the judgment excluding the part concerning each of the plaintiffs' corresponding real estate and shares as stated in the plaintiff's list in the judgment of the court of final appeal [in particular, from 886.6902/31860 shares in the 886.6902/31860 shares in the Yongsan-gu Seoul Metropolitan City, Ulsan Metropolitan City, Nowon-gu, Seoul Metropolitan City (hereinafter "the apartment site of this case") excluding the part concerning each of the plaintiffs' respective shares in the plaintiff's list in the judgment of the court of final appeal excluding the part concerning each of the plaintiffs' relevant real estate and shares in the judgment

2. On the first ground for appeal

A. Article 21(1) of the Rental Housing Act (wholly amended by Act No. 8966, Mar. 21, 2008; hereinafter “Act”) provides, “Where a rental business operator sells a house constructed with funds from the National Housing Fund or constructs a house on a housing site developed by a public project (hereinafter “public rental housing”) after the expiration of the mandatory rental period, the rental business operator shall first convert the house into sale in lots to the lessee who falls under any of subparagraphs 1 through 5 of Article 60 of the Housing Act among the housing constructed with approval of the project plan pursuant to Article 16 of the Housing Act after the expiration of the mandatory rental period, the said rental business operator may first convert the house into sale in lots to the lessee who resides in the relevant rental house at the time of conversion in lots.” Article 21(1) of the same Act provides, contrary to paragraph (1) of the same Article, requires that the lessee who is a State agency or a corporate lessee to be converted to sale in lots shall be a homeless at the time of conversion in lots.”

In full view of all the circumstances seen below, including the contents and form of the above provisions, the legislative purpose and background of the Act, and relationship with other relevant provisions, Article 21(2) of the Act is reasonable to interpret that Article 21(2) of the Act provides that the lessee who resides in the relevant rental house at the time of conversion for sale in lots is entitled to preferential conversion into lots even if he/she is a housing owner, and that the rental business operator has the obligation to preferential conversion into lots to the lessee.

① Article 21(1) of the Act provides, in principle, the duty of conversion for sale in lots to a lessee of a house without a housing, and thus, in principle, rental housing residing by a lessee of a house at the time of conversion for sale in lots can be sold to a third party, including the lessee, regardless of whether the lessee’s default, bankruptcy, etc. Therefore, if Article 21(2) of the Act is interpreted as the delegation of the right to allow the rental business operator to choose the preferential conversion for sale in lots to a lessee of a house without a housing, it would eventually be an meaningful legislation.

(2) Article 21(3), (4), (1), and (2) of the Act provides that a rental business operator shall apply to the Mayor, etc. for approval of conversion for sale in lots, and in such cases, the Mayor, etc. shall grant approval of conversion for sale in lots within 30 days. Paragraph (7) of the same Article provides that where a lessee fails to comply with conversion for sale in lots for at least six months even after a rental business operator obtained approval for conversion for sale in lots, a rental business operator may sell the relevant rental house to a third party under the conditions as prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs. Article 13(7) of the Enforcement Rule of the Act delegated by the Minister of Land, Transport and Maritime Affairs (wholly amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 19 on June 20, 2008; hereinafter the same shall apply) provides that a rental business operator shall supply the rental house remaining after conversion for sale in lots pursuant to Article 21(7) of the

Each of the above provisions of the Act was newly established in the Act, and it is sufficient for a rental business operator to submit a plan for the conversion of rental housing to the market, etc. along with the documents on the basis of calculation of the conversion price. However, the above provision strengthened control over whether the pre-sale conversion price under the Act and subordinate statutes complies with the standards for calculation of the conversion price for sale from the market, etc., which includes the pre-sale conversion price. Meanwhile, the approved pre-sale conversion price, which is equally applied not only to the pre-sale conversion of rental housing but also to the sale to a third party, was fundamentally prevented the rental business operator from changing the rental housing system into a means for economic interest of rental business operators. As such, under the circumstance where the price has become so long as the price has become so high, it is difficult to present reasonable grounds for a rental business operator

③ At the time of the pre-amended Act by Act No. 7598 of July 13, 2005, the pre-sale conversion right was granted to only the lessee who is the householder of a house without a house. The pre-sale conversion right applied only to the pre-sale conversion right was bound to undergo the pre-sale conversion according to the price demanded by the rental business operator. In particular, there was a closure that is not properly converted for sale due to differences between the rental business operator and the general lessee surrounding the pre-sale conversion price in the case of default and bankruptcy by the rental business operator. Accordingly, the amendment of the pre-amended Act by Act No. 7598 of July 13, 2005, under Article 15(1) of the pre-amended Act, the scope of pre-sale conversion right limited to the pre-existing lessee of a house without a house should be extended to the tenant without a house, and under Article 15(2), the provision related to pre-sale conversion of the pre-sale conversion right should be applied to all lessee residing in the rental house.

④ Article 21(5) of the Act provides that where a rental business operator fails to apply for approval for conversion for sale in lots for at least one year after the lapse of the mandatory period of lease, dishonor, bankruptcy, or other cases prescribed by Presidential Decree, a lessee may directly apply for approval for conversion for sale in lots with the consent of at least 2/3 of the total number of lessees. Paragraph (8) of the same Article provides that where a rental business operator fails to comply with conversion for sale in lots for at least six months after the approval for conversion in lots was granted, a lessee may file a claim for sale according to the conversion for sale in lots approved. Since each of the above provisions of the Act was newly established in this Act, as long as the Act provides that a lessee who is the subject of the exercise of the right to apply for approval for conversion in lots or the right to claim for sale in lots can purchase the relevant rental house regardless of the lessor’s intent by exercising the right to request sale, it is logical to understand that a lessee of a house in lots has a preferential right to purchase in lots.

(5) Article 22(1) of the Act provides that where a rental house for public construction is sold by auction under the Civil Execution Act, a lessee entitled to preferential conversion for sale pursuant to Article 21 of the Act may provide a guarantee under Article 113 of the Civil Execution Act until the date of sale and report a rental business operator’s preferential purchase of a rental house at the same price as the highest bid price, which is the debtor, at the same time as the highest bid price. This is the first clause newly established in order to prevent the lessee’s housing inconvenience and economic loss by expanding the scope of a person entitled to preferential purchase at the time of the amendment in 2005, so that a lessee who has preferential purchase rights can continue to reside after receiving a successful bid of the relevant rental house through the exercise of preferential purchase rights even at the time of the auction of a rental house, and thus, the scope of a person entitled to preferential purchase rights does not discriminate against a lessee and a person entitled to preferential purchase rights should be construed equally.

In addition, Article 16(3) of the Act and Article 13(2)2(b) and (4) of the Enforcement Decree of the Act (wholly amended by Presidential Decree No. 20849, Jun. 20, 2008) provide that, even if the mandatory rental period is within the leased period, where a rental business operator cannot continue to lease due to default, bankruptcy, etc., and where a public construction rental house is converted for sale after obtaining approval from the Mayor, etc. for conversion for sale in lots, "it shall be converted for sale in lots preferentially to lessee who satisfies the requirements under Article 21(1) or (2)." Thus, there are no special circumstances to view that the scope of the right to conversion in lots is different,

(6) The purpose of this Act is to promote the construction of rental housing and to stabilize the residential life of people by prescribing matters necessary for the construction, supply and management of rental housing and the rental housing business (Article 1). To achieve this purpose, the National Housing Fund provides various support, such as the long-term and low-interest preferential use of rental housing in the construction of rental housing in the National Housing Fund and appropriation in the expenditure budget for construction of rental housing (Article 5), ownership of rental business operators by the State, local governments, public enterprises, etc., preferential sale of housing sites (Article 10) and preferential supply of housing unsold in lots or rental housing (Article 12), preferential installation of arterial facilities (Article 13), special recognition of Acts on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (Article 14) and other Acts provide multi-dimensional support, such as mitigation of floor area ratio

The Act prohibits the sale of rental housing (Article 16), the obligation to subscribe to guarantee deposit for lease deposit (Article 17), the restriction on the establishment, etc. of mortgage prior to conversion for sale in lots (Article 18), the standards for the terms and conditions of lease, such as qualifications, methods of selection, lease deposit, rent, etc. of lessees of constructed rental housing, shall be prescribed by Presidential Decree (Article 20), and where a rental house is converted for sale in lots for public construction for which the mandatory period of lease has expired due to the restriction corresponding to the above various support, the Act shall first make a conversion for sale in lots to a lessee without a house, and the matters concerning the method, procedure, price, etc. of such conversion for sale in lots shall be prescribed by Presidential Decree (Article 2

In light of the structure of overall regulations imposing various restrictions on rental business operators with various support in order to achieve the legislative purpose and purpose of this Act, it does not mean that a reasonable pre-sale conversion price should be applied by granting a preferential pre-sale right to a lessee of a house who was excluded from pre-sale conversion in order to rectify the problems arising from the existing laws and regulations in the event of default, bankruptcy, etc. by a rental business operator (see Supreme Court en banc Decision 2009Da97079, Apr. 21, 201).

7) Article 335 of the Housing Lease Protection Act (amended by Act No. 7428, Mar. 31, 2005; hereinafter “Integrated Bankruptcy Act”) provides that when a lessor is declared bankrupt, when a lessee satisfies the requirements for counterclaim under Article 3(1) of the Housing Lease Protection Act, Article 335 of the Housing Lease Protection Act shall be excluded (Article 340(4)), which provides for the trustee in bankruptcy to exercise the right to terminate an executory contract with respect to executory bilateral contract, and Article 340(4) of the Housing Lease Protection Act recognizes the right to preferentially pay the deposit from the proceeds from the sale of the house belonging to the bankrupt estate, and Article 8 of the Housing Lease Protection Act provides for the right to preferential repayment (Article 415 of the Housing Lease Protection Act).

However, in the case of public construction rental housing, it is difficult to deny that there is a certain limit in preventing the lessee's housing default and economic loss in the case of default and bankruptcy due to the limitation of the first priority right of the National Housing Fund and the protection of small-value security deposit. Therefore, it is difficult to readily conclude that the legislation of the Act is a measure to lose balance in the relationship with the bankruptcy creditors, in order to further protect the lessee who is the economically weak.

B. According to the reasoning of the judgment below and the record, the case of Pyeongtaek Ho was transferred from the supplementary intervenor association to register the apartment site of this case within the land annexed to the land readjustment project zone and was registered in the sale ledger of land allotted by the National Housing Fund. The fact that the council of lessees' representatives of this case, including the plaintiffs, directly obtained approval for sale in lots from the head of Ulsanbuk-do, on July 4, 2008, for sale in lots of apartment land in accordance with the first-come-come-served method stipulated in the "Rules on Housing Supply", and the lessee of this case filed a lease commencement of the apartment of this case with the rental business operator provided by the Act for five years. In the process of tenant recruitment, some of the tenants of this case were recruited as the tenant of this case, and the case was filled by the tenant of this case, who was declared bankrupt on December 26, 2006 and was declared bankrupt on April 25, 2008 but did not comply with the tenant's request for sale in lots.

Examining the above facts in light of the legal principles as seen earlier, the Plaintiffs, who reside in the apartment of this case at the time of sale in lots, have the right to preferentially convert the relevant apartment according to Article 21(2) of the Act regardless of whether or not they own the housing, and as long as such Plaintiffs exercise their right to sell after obtaining approval for conversion in lots directly in accordance with the procedures prescribed in Articles 21(5) and (8) of the Act, Defendant bankruptcy trustee, who is the party in charge of the lawsuit, is obligated to implement the procedure for the transfer of ownership of the relevant apartment building and the procedure for the change of purchaser’s name on the sale ledger of land ownership (hereinafter referred to as “sale registration procedure, etc. for apartment buildings, etc.”) on the purchase and sale price of the relevant apartment building based on the sale contract

The reasoning of the judgment of the court below is partially inappropriate, but the conclusion that the defendant bankruptcy trustee is obligated to implement the procedure for the registration of ownership transfer of the relevant apartment building, etc. to the plaintiffs including the "house lessee" is just, and there is no error in the misapprehension of legal principles as to the scope of persons eligible for preferential sale for sale in lots in the case of default of rental business operators and bankruptcy under Article 21 (1)

3. On the second ground for appeal

Article 423 of the Consolidated Bankruptcy Act provides that "a claim on the property that has arisen before the declaration of bankruptcy against the debtor shall be a bankruptcy claim." In this case, a claim that has arisen before the declaration of bankruptcy does not require the specific confirmation of the contents of the claim or the maturity of the claim that has already arrived at the time the declaration of bankruptcy is declared, and at least a major cause of the claim exists before the declaration of bankruptcy, is sufficient, and it does not constitute a bankruptcy claim if it is merely a simple expectation right for

However, according to the reasoning of the judgment below, the plaintiffs who were not the lessee of the apartment of this case can be found to have exercised the right to claim the sale of the apartment of this case against Cho Chang-jo with the approval of conversion for sale in lots directly from the head of Ulsan-do North Korean government in accordance with the newly established provisions of the Act that came into force from June 22, 2008, which was after the declaration of bankruptcy for

Examining the above facts in light of the legal principles as seen earlier, it is clear that the right to claim the registration of ownership transfer of the relevant apartment building, etc. based on the sales contract established by the plaintiffs' exercise of the right to claim the sale does not have arisen before the bankruptcy is declared against the right to claim the sale of the apartment building, etc., and since such a sales contract has not yet been established at the time of the declaration of bankruptcy, there is no room for the application of the right to cancel the contract by the trustee in bankruptcy under Article 335 of the Integrated Bankruptcy Act, premised on

The reasoning of the judgment below is partly inappropriate, but it is just in the conclusion that the plaintiffs' claims such as the plaintiffs' right to claim for ownership transfer registration of the apartment building, etc. of this case against the defendant bankruptcy trustee and the right to cancel the contract by the defendant bankruptcy trustee are unlawful. There is no error of law such as misunderstanding of legal principles as to the requirements for bankruptcy claims under the Consolidated Bankruptcy Act or the right to cancel the contract for bilateral contract not performed by

4. On the third and fourth grounds

A. According to the reasoning of the judgment below, in order to manage and preserve the ownership of the apartment of this case until the completion of conversion for sale in lots, the following facts are revealed: (a) the Defendant trust company entered into a trust contract for managing and preserving the ownership of the apartment of this case with the Defendant trust company; and (b) the beneficiary entered into the trust registration and ownership transfer registration of the building, etc. in the name of the trust company; and (c) the trust principal is a rental business operator; (d) the trust principal is a rental deposit in the apartment of this case and the company; (e) the property acquired by subrogation of the trust real estate; and (e) the trust period is the period from the execution date of the trust contract to the completion date of the conversion for sale in lots; and (e) the beneficiary can apply for the payment, settlement, and cancellation, etc. of the trust fees to the trustee at the time of the termination of the trust contract; and (e) the right of pledge for the purpose of the trust interest of this case is to secure obligations to the Intervenor

B. As long as a sales contract for conversion into parcelling-out has been established between the Plaintiffs and Pyeongtaek-si, the obligation to pay the purchase price based on the pre-sale conversion price to be borne by the Plaintiffs and the obligation to transfer ownership to the instant apartment building, etc. to be borne by Pyeongtaek-si is in a simultaneous performance relationship. Therefore, in order to perform the obligation such as ownership transfer registration, it is necessary to refund the instant apartment that is placed in trust with the Defendant trust company first. However, if the meaning of the “the completion of parcelling-out conversion”, which is the reason for termination of the instant trust contract, is interpreted to have been completed to have fulfilled each of the above obligations under the sales contract, which is the reason for the termination of the instant trust contract, even if the establishment of the sales contract for conversion into parcelling-si was not completed, it would not be possible to refund the instant apartment, and this would result in the result of compelling the Plaintiffs to perform the advance payment of the purchase price. Accordingly, in terms of the smooth performance of the sale into parcelling-out.”

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the interpretation of "sale contract completion" as the ground for termination of the trust contract of this case.

C. Article 12-3(1) of the former Rental Housing Act (amended by Act No. 8534, Jul. 19, 2007; hereinafter “former Act”) provides that a rental business operator shall not establish a security right, such as mortgage or provisional registration, prior to the conversion for sale in lots, with respect to a rental house constructed by a housing construction project implemented with approval for a business plan under the Housing Act; and Paragraph (2) of the same Article provides that a rental business operator shall apply for an additional registration with regard to a rental house under paragraph (1) at the same time as an application for registration of ownership preservation, and that a rental business operator shall file an application for establishment of a limited real right, seizure, provisional seizure, provisional disposition, etc. before the conversion for sale in lots, with regard to a rental house under paragraph (1). Paragraph (3) shall be null and void after the date of additional registration under paragraph (2).

The purpose of these regulations is to prohibit rental business operators from taking certain disposals such as the creation of a mortgage on rental housing so that lessees can acquire ownership effective by conversion for sale in the future, and to additionally add the purpose of the prohibition to prevent the third parties from incurring losses due to such disposal restrictions, and to deny the effect of registration, seizure, provisional seizure, provisional disposition, etc. due to the creation of a security right, etc. which is prohibited from disposing of rental housing after additional registration, thereby protecting lessee prior to the creditors of rental business operators.

Meanwhile, Article 12-3(2) of the former Act and Article 9-5(2) of the former Enforcement Decree of the Act (wholly amended by Presidential Decree No. 20849, Jun. 20, 2008) upon delegation by the former Act provide that where a rental business operator is the State, a local government, the Korea National Housing Corporation, or a local government-invested public corporation, or a trust company, etc., an exception to the duty of additional registration of prohibited matters is recognized. This is due to the fact that, in the case of the State, etc., there is no risk of disposal prohibited by default, bankruptcy, or law, and in the case of a general rental business operator, when a trust of a rental house is established, the relevant rental house can be separated from the property rights of the rental business operator, as well as the trustee's own property, and can be seen as having the same effect as the additional

However, if a rental business operator has entrusted a rental house to a trust company for the purpose of preserving and managing the ownership until the completion of sale in lots, and a rental business operator, who is the beneficial interest, grants a rental business operator a right to return the rental house from the trust company to his/her creditor, according to the pledgee’s exercise of the pledge right, the rental business operator may be at risk of not sustaining the ownership of the relevant rental house, and this cannot be deemed unjust in that the trust of the rental house may be changed to a lessee’s preferential right to purchase in lots. Accordingly, in light of the legislative purpose of the additional registration system such as the restriction on disposal in lots and prohibition of the establishment of the mortgage and the purport of the provision recognizing exceptions to the additional registration where the trust is established, the right to receive a refund of the rental house from the trust company cannot be subject to the nature of the right to receive a refund, and the right to receive a refund of the rental house shall not be null and void, unless there are any special circumstances.

Examining the above facts in light of the legal principles as seen earlier, since the trust of this case was established only for the purpose of managing and preserving the ownership of the apartment of this case until the completion of sale for sale in lots, so long as a sale contract for sale in lots was concluded between the plaintiffs and Pyeongtaek Ho, the purpose thereof has been achieved. As long as the trust was terminated, the defendant Korean Investment Trust has a duty to return the rental housing of this case corresponding to the trust principal to Pyeongtaek Chang Ho, which is the beneficiary pursuant to the trust agreement of this case, and since the right pledge established for the purpose of the right to claim the return has no validity, the right pledge established for the purpose of the right to claim the return of this case has no need to obtain the consent of the supplementary intervenors.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the validity of a pledge for trust interest of a rental business operator as otherwise alleged in the ground of appeal.

D. Article 475 of the Civil Act provides that the obligee may demand the return of the certificate of credit if the obligee fully performs the obligation. However, the right to claim the return of the certificate of credit does not have concurrent performance relationship with the repayment (Supreme Court Decision 2003Da22042 Delivered on August 19, 2005).

According to the reasoning of the judgment below, the court below rejected the defendant Korea Land Trust's simultaneous performance defense on the ground that the obligation to return the beneficiary's certificate and the obligation to return the trust property of the defendant Korea Land Trust are not in the relationship of simultaneous performance, on the ground of the following circumstances: (a) the beneficiary's certificate based on the trust contract of this case can be deemed as falling under the bond certificate, not the securities or

In light of the above legal principles and records, the above judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the duty to return the beneficiary's certificate of beneficial interest and the duty to return the trustee's object of trust.

5. On the fifth ground for appeal

Article 335(1) of the Integrated Bankruptcy Act provides that when both the bankrupt and the other party have not yet completed the performance of a bilateral contract at the time that the bankruptcy is declared bankrupt, the bankruptcy trustee may rescind or terminate the contract, or perform the debtor's obligation and claim the other party's performance of obligation. In the case of paragraph (1), the other party may demand that the bankruptcy trustee cancel or terminate the contract within a reasonable time specified by Article 335(1) of the Integrated Bankruptcy Act and that the other party may demand confirmation as to whether to cancel or terminate the contract or to fulfill the other party's obligation within a reasonable time specified by Article 335(2) of the same Act shall be deemed to have terminated or terminated the contract if the bankruptcy trustee does not confirm within the reasonable time specified by Article 335(1) of the same Act. Even if a party's obligation under the bilateral contract is a debt, it is clear that Article 335 of the Integrated Bankruptcy Act is applicable only to the other party's obligation under ordinary bankruptcy proceedings (see Supreme Court Decision 2

According to the reasoning of the judgment below and the records, the supplementary intervenor association entered into a contract for the construction cost of KRW 100,803,926,00 with the land annexed to the land annexed to the land annexed to the land annexed to the land annexed to the land annexed to the land of this case and entered into such contract in principle that the construction cost shall be paid in recompense for development outlay. Accordingly, the supplementary intervenor association entered into a contract for the land annexed to the land annexed to the land annexed to the land annexed to the land annexed to the land annexed to the land of this case and entered into a change of the purchaser's name on the sale ledger of land equal to 316,530 square meters of the above construction price among the land annexed to the land annexed to the land annexed to the land of this case. In the process, the supplementary intervenor association entered into a contract for the construction of the apartment of this case or actively cooperate in receiving the loan from the land annexed to the land annexed to the land annexed to the land of this case, but did not obtain a definite reply from the trustee in bankruptcy or the bankruptcy.

If the facts are as above, the supplementary intervenor association should be deemed to fully perform the obligation of the contractor by transferring the land allotted by the authorities in recompense for development outlay equivalent to the same amount to the contractor in lieu of the payment of the construction price in accordance with the terms and conditions of the contract in this case. In this case, the contract in this case cannot be deemed to be a bilateral contract which is not performed by both parties at the time of the declaration of bankruptcy, and therefore, Article 335 of the Integrated Accounting Act does not have room

Therefore, the court below erred in holding that the contract of this case between Pyeongtaek Ho and a supplementary intervenor's association constitutes a bilateral contract not performed by both parties at the time when the contractor's bankruptcy is declared, and that the contract of this case was rescinded pursuant to Article 335 (2) of the Integrated Dosan Act. However, the court below rejected the defendants' defense disputing the validity of the plaintiffs' exercise of the plaintiffs' right to sell the apartment site of this case on the ground that it was impossible to return the apartment site of this case to the supplementary intervenor's association in accordance with the prohibition of separate disposal of an aggregate building, notwithstanding the cancellation of the contract of this case. Thus, this error of the court below did not affect the conclusion of the judgment. The ground of appeal on this part

6. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the Intervenor and the remainder are assessed against the Defendants. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: omitted

Justices Park Poe-dae (Presiding Justice)