1. According to Articles 19-2 and 31-2 of the former Housing Site Development Promotion Act (amended by Act No. 10303, May 17, 2010; hereinafter referred to as the "Housing Site Development Promotion Act"), a person supplied with a housing site created pursuant to the Housing Site Development Promotion Act may not resell the relevant housing site as it is without using it for the purpose of its use until the transfer of ownership is registered: Provided, That this restriction may not apply in cases prescribed by Presidential Decree. If a person resells the housing site in violation of such restriction, the relevant juristic act shall be 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. 23113, Aug. 30, 201) (hereinafter referred to as the "Enforcement Decree of the Housing Site Development Promotion Act"), where the purchaser purchased the housing site from the implementer under subparagraphs 1 through 9 or acquired the consent of the implementer under the proviso to Article 19-2 (1).

In full view of the legislative purport of the Housing Site Development Promotion Act with the aim of contributing 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 resolve the housing shortage in the relevant provisions, the provisions of the Enforcement Decree of the Housing Site Development Promotion Act, and the legislative purport of the Housing Site Development Promotion Act, etc., in principle, shall be prohibited by the Housing Site Development Promotion Act as a matter of principle until the registration of ownership transfer. However, in light of the circumstances of the supply of housing sites, if it is necessary to give an opportunity to sell the housing site right before the registration of ownership transfer or if there is no concern about speculative transactions in light of the use of the housing site concerned, the parties to a resale contract, the reason for conclusion, and the resale price, etc., which requires the consent of the project operator, it is necessary to restrain an application for supply of housing sites for the purpose of acquiring the housing site for the purpose of acquiring the housing site to be supplied to the actual users who intend to use the housing site for that purpose. Accordingly, it is interpreted to prevent the contract from

Therefore, the phrase “the consent of the implementer” as the 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 under the Housing Site Development Promotion Act. Even if a contract for the sale and purchase of a housing site was concluded prior to the conclusion of the said contract, it is impossible for the 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 consent of the implementer” regarding the housing site that is to be supplied to the seller (see, e.g., Supreme Court Decisions 2016Da229393, Oct. 12, 2017; 2016Da229409 (Counterclaim).

2. The reasoning of the lower judgment and the evidence duly admitted reveals the following: (1) On September 25, 2009, the Plaintiff entered into a sales contract with the Defendant to purchase the sales right of migrants’ housing site to be supplied by the Korea Land and Housing Corporation (hereinafter “instant sales contract”) to the Defendant as the housing owned by the Defendant was incorporated into the Cdistrict development project; and (2) at the time of the instant sales contract, the Plaintiff did not obtain consent from the Korea Land and Housing Corporation (hereinafter “instant sales contract”); and (2) on the other hand, the Defendant was notified of the supply of the former housing site on December 29, 2014, and concluded a sales contract with the Korea Land and Housing Corporation to be supplied with the former housing site (hereinafter “instant housing site”) as indicated 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, 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.

Chief Justice Park Jong-young

Justices Kim Jae-tae

Justices Kim Jae-in