1. According to Articles 19-2 and 31-2 of the Housing Site Development Promotion Act, a person supplied with a housing site developed under the Housing Site Development Promotion Act shall not resell it as it is without using the relevant housing site for the purpose of its use until the transfer of ownership is registered: Provided, That in cases prescribed by Presidential Decree, such restriction may not apply. In cases of resale of the housing site in violation of such restriction, the relevant juristic act becomes null and void and subject to criminal punishment. Meanwhile, according to Article 13-3 of the former Enforcement Decree of the Housing Site Development Promotion Act (amended by Presidential Decree No. 26485, Aug. 11, 2015), the term “cases prescribed by Presidential Decree” in the proviso to Article 19-2 (1) of the Housing Site Development Promotion Act means cases where the consent of the implementor is obtained because the purchaser falls under any of subparagraphs 1 through 9: Cases falling under subparagraphs 1, 2, 5 and 7; cases where the purchaser purchased the housing site from the implementer for the first time to acquire the housing site or manage the housing site (hereinafter referred to subparagraph 1 through consultation).

In full view of the legislative purport, etc. of the Housing Site Development Promotion Act, which aims to contribute to the stabilization of national housing and the improvement of welfare by prescribing special cases concerning the acquisition, development, supply, and management of housing sites necessary for housing construction in order to solve the housing shortage in the urban area, the act of resale of housing sites created under the Act shall be prohibited in principle until the registration of transfer of ownership is completed; Provided, That the purport of the Housing Site Development Promotion Act stipulating that the act of resale should be exceptionally permitted only in cases where it is necessary to give an opportunity to sell ownership of housing sites prior to the registration of ownership transfer or where there is no concern about speculative transactions in light of the purpose of the relevant housing site, the parties to a resale contract, the reasons for conclusion of a resale contract, the resale price, etc., and the requirement that the consent of the implementer shall be obtained is necessary to restrain an application for supply of housing sites for the purpose of acquiring the housing site to the end user of the housing site for the purpose of acquiring the housing site to use the housing site for that purpose. Accordingly, it shall be interpreted that the act of resale of the housing site directly

Therefore, the “agreement of a project implementer” prescribed as a requirement for special exception to the restriction on resale is premised on the fact that a housing site supply contract was concluded with respect to a housing site developed pursuant to the Housing Site Development Promotion Act. Thus, even if a contract for the sale and purchase of a housing site was concluded with the intent to resell the housing site to be supplied in the future before the conclusion of the contract for the sale and purchase of the housing site, it is impossible for the project implementer to consent to the sale and purchase contract for the housing site so that it is null and void and it is reasonable to interpret that the seller is not obliged to cooperate with the procedures of the “project implementer’s consent regarding the housing site to be supplied in the future” (see, e.g., Supreme Court Decision 2016Da229393, Oct. 12, 2017).

2. According to the reasoning of the lower judgment and the evidence duly admitted, the Plaintiff entered into a sales contract with the Defendant on March 31, 2014, with the content that the real estate owned by the Defendant is included in the housing site development project for a zone and that the Defendant would purchase the sales right of the migrants’s housing site to be supplied by the Korea Land and Housing Corporation, which is the implementor of the said project (hereinafter “instant sales contract”). At the time of the instant sales contract, the Plaintiff did not obtain consent from the Korea Land and Housing Corporation as the implementor of the instant contract, and (2) the Defendant entered into a sales contract with the Korea Land and Housing Corporation to be supplied with the migrants’s housing site as stated in the lower judgment (hereinafter “instant sales contract”).

3. Examining these facts in light of the legal principles as seen earlier, the instant sales contract constitutes a contract with the purport to resell the migrants created under the Housing Site Development Promotion Act before the transfer of ownership is registered. Since the instant sales contract was concluded without the consent of the Korea Land and Housing Corporation prior to the conclusion of the sales contract with the Korea Land and Housing Corporation, the executor, and the Defendant is not obliged to cooperate with the application procedure of the resale agreement with regard to the migrants. Although the Defendant received the instant housing site from the Korea Land and Housing Corporation after being supplied with the instant housing site by the instant sales contract, such circumstance alone is insufficient.

Nevertheless, the lower court determined otherwise, that the instant sales contract was in the state of flexible invalidation, which can be retroactively effective upon obtaining the consent of the Korea Land and Housing Corporation after its ex post facto approval, and on that premise, determined that the Defendant is obligated to cooperate to ensure that the instant sales contract can be effective, and that the Plaintiff is obliged to implement the procedure for applying for the consent to resale for change of the name of the buyer in accordance with the instant sales contract.

Therefore, the court below erred by misapprehending the legal principles as to the validity of the resale contract of the migrants who violated Article 19-2 of the Housing Site Development Promotion Act, the interpretation of "the consent of the implementer" as stipulated in the Enforcement Decree of this case, and the validity of the sale contract of the sale of the migrants housing site without the consent, thereby affecting the conclusion of the judgment

4. Therefore, without examining the defendant's remaining grounds of appeal, the part against the defendant among the judgment below against the defendant is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jong-young

Justices Kim Jae-tae

Justices Kim Jae-in