August 18, 2009 ( Plaintiff 50)

November 10, 2009 ( Plaintiff 17)

2. The costs of lawsuit are assessed against the plaintiffs.

A. As shown in attached Form 2, the Plaintiffs entered into a sales contract for the apartment of this case with the head of Hodon Construction Co., Ltd. (the trade name before the alteration on May 20, 2004: hereinafter referred to as the “the head of decoration Construction”) which is the executor of 270 households of Seocho-dong 1166-1, Seocho-dong, Busan (hereinafter referred to as the “the apartment of this case”) as shown in attached Form 2, and paid the down payment in the same time and manner as shown in attached Form 2.

B. On May 10, 2004, the construction of the defendant decoration entered into a housing sale guarantee contract with the defendant Housing Guarantee Co., Ltd. (hereinafter “Defendant Housing Guarantee Contract”) with the coverage amount of 59,300,000,000 won, May 20, 2004, the date of commencement, and May 31, 2006, the date of pre-use inspection (pre-use inspection). The period from the approval date of the announcement of the recruitment of the guarantee unit to the date of pre-use inspection, and if the construction of the defendant decoration fails to perform the sales contract with the buyer on the apartment of this case due to bankruptcy, etc., the housing sale guarantee contract with the content of the pre-paid down payment and intermediate payment to the buyer who is the guarantee creditor or performing the sales obligation of the apartment of this case (hereinafter “the housing sale guarantee contract of this case”). Accordingly, the defendant Housing Guarantee Co., Ltd. issued the housing sale guarantee contract of this case (number No. 2423, 2004).

【Terms and Conditions of Housing Sale Guarantee, Evidence A No. 2-2】

Article 2 (Establishment of Guaranteed Obligations)

The guaranteed obligation of the guaranteed company shall be effective at the time the principal debtor obtains the approval for the public announcement of invitation of residents within 30 days from the date of issuance of the letter of guarantee, and shall enter into force

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

The surety shall not discharge the surety obligation for any of the following obligations:

3. Occupancy fees paid by a person who signed a housing sale contract before public announcement of invitation;

C. On May 10, 2004, the construction of the defendant decoration was approved by the head of the Dong/Dong in Busan by the announcement of the recruitment of the apartment of this case.

D. After the date of each intermediate payment, the Plaintiffs paid the money in attached Form 3, which is part of intermediate payment, to the designated account of each designated bank, as stated in each intermediate payment contract.

E. On February 19, 2008, the Defendant notified the Plaintiffs of the choice of the method of performance of guarantee in cases where the performance rate verified by the supervisor was not less than 25% compared to the expected progress rate (the actual progress rate of 57.5%, the planning progress rate of 100%).

F. On July 18, 2008, the Defendant notified the Plaintiffs of the execution method of the guarantee that it performed the refund, and the Plaintiffs received notification of the decision of performance of refund, and applied for the payment of refund with the application form. However, on September 1, 2008, the Defendant rejected the Plaintiff’s claim for performance guarantee on the ground that the sales price paid by the Plaintiffs constitutes “the occupancy price paid by the party who entered into a housing sales contract before the public notice of tenant recruitment constitutes the occupancy price paid by the party who entered into the housing sales contract before the public notice

(g)the provisions of the rules on housing supply in connection with the instant case are as follows:

The former Rules on Housing Supply (amended by Ordinance of the Ministry of Construction and Transportation No. 417 of December 28, 2004; hereinafter “former Rules on Housing Supply”)

Article 8 (Procedures for Invitation of Residents)

(1) When a project undertaker intends to recruit occupants, he/she shall open recruitment. In such cases, a project undertaker who is not the State, a local government, the Korea National Housing Corporation, or a local government-invested public corporation shall obtain approval from the Mayor, etc. by submitting the following documents, and a project undertaker who is the State, a local government, the Korea National Housing Corporation

1. Proposal for public announcement of invitation;

(3) Where a project operator intends to recruit residents, he/she shall publish a notice of invitation of residents in a daily newspaper where residents in the housing construction area can easily see, or a notice at a specific place where residents in the housing construction area can easily see: Provided, That where the head of a Si, etc. supply housing with 100 or more households in the Seoul Metropolitan area and Metropolitan City or the head of a Si, etc. deems that there is a concern of speculation and excessive competition

(4) The announcement of a public announcement under the provisions of paragraph (3) shall include the following matters 5 days before the date of receiving the first application. In this case, the head of Si, etc. may have the project proprietor prepare a separate guide after publicly announcing and publicly announcing the matters to be known at the time of concluding a housing supply contract and other necessary matters in addition to the following matters, and then have the applicant for housing supply deliver

1. Above 15. (Omission)

Article 9 (Application for Housing Supply)

(2) A person who intends to file an application for housing supply shall submit the documents falling under each of the following subparagraphs to a project undertaker: Provided, That where an occupant savings institution files an application for housing supply by proxy for the selection of occupants, the submission of an application for housing supply under subparagraph 1 may be omitted, and where the documents attesting that the occupant is a householder under subparagraph 2 or the documents attesting his residence, etc. under subparagraph 10 can be verified by means of electronic management, the occupant savings institution may have them submit at the time of concluding a supply contract without submitting an application for housing supply:

1. Above 10. (Omission)

Article 10 (Methods of Housing Supply)

(1) The methods of housing supply shall be classified into general supply, special supply, and collective supply.

(2) When a project proprietor selects occupants by general supply, he/she shall do so in the order of priority and order (hereinafter referred to as "order of priority, etc.") as provided for in Articles 11 through 13 as of the date of the announcement of invitation of occupants, but by drawing lots

(6) A project undertaker may, where there exist houses remaining after selecting occupants under the provisions of Articles 11 through 13, select occupants on a first-come, first-served basis, notwithstanding the provisions of Article 4.

Article 26 (Payment of Occupancy Charges)

(1) Where a project undertaker supplies housing, occupancy fees received from occupants shall be classified into subscription fees, contract payments, intermediate payments and remainder.

(2) Subscription money for an subdivided housing may be received within the limit of 10 percent of the housing price, 20 percent of the housing price, and part payments, including subscription money, and 60 percent of the housing price.

(3) An offer for rental housing may be received within the limit of 10 percent of the rental deposit, 20 percent of the rental deposit, and part payments, including the subscription money, and 40 percent of the rental deposit.

(4) A contract for occupancy may be received at the following time:

1. Subscription amount;

When recruiting occupants;

2. Contract deposit;

When concluding a contract, the contract shall be concluded within a fixed period of not less than three days after the lapse of five days from the date of being selected as an occupant.

3. Part payments;

When it falls under any of the following items:

(b) In cases of housing units for sale, the following standards shall be applied:

(1) The construction process shall be divided into two or more parts before and after each time it reaches the category of item (a) (i) or (ii): Provided, That where a project undertaker of a housing reconstruction project under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents recruits occupants under Article 7 (3), the time and frequency of receiving part payments may be separately determined by the project undertaker;

(2) In the case of (1), the first intermediate payment shall be received one month after the date of the contract.

4. Balance; and

After the date of usage inspection: Provided, That where a temporary use approval is obtained, any balance excluding the amount equivalent to 10 percent of the total amount of occupancy shall be received on the date of occupancy, and any balance equivalent to 10 percent of the total amount of occupancy may be received after the date of

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 7, 10 through 63, 66 through 121 (including each number), Eul evidence 1 through 4 (including each number), the witness non-party 1's testimony and the purport of the whole pleadings

2. Determination as to the plaintiffs' claims

The plaintiffs seek the money listed in attached Form 2, which is part payments paid by the plaintiffs after the public announcement of recruitment as follows.

A. Determination as to the remaining plaintiffs' claims except for plaintiffs 17 and 26 (Plaintiff 24 of the second instance judgment)

(1) Whether Article 4 subparagraph 3 of the Terms and Conditions of this case is applicable

Article 4 subparagraph 3 of the Terms and Conditions of this case states that "the occupancy price paid by the person who has entered into a housing sale contract before the public announcement for the recruitment of occupants" means the occupancy price paid by several buyers before the public announcement for the recruitment of occupants. Thus, the plaintiffs who entered into a housing sale contract before the public announcement for the recruitment of occupants also after the public announcement for the recruitment of occupants cannot refuse the performance of guaranteed obligations based on the provisions of the above terms and conditions, i.e. the intermediate payment

According to the above basic facts, ① open recruitment shall be made when a project proprietor recruits occupants, and where a house is supplied, a public announcement shall be made on a daily newspaper, etc. not later than five days before the date of first receipt of the application (Article 8(1) and (4)); a person who intends to be supplied a house shall prepare an application in accordance with a specific form and submit it to the project proprietor (Article 9); when a project proprietor selects occupants by general supply, it shall be made in the order and sequence as provided in Articles 11 through 13 as of the date of public announcement of invitation of occupants; (Article 10); the subscription amount shall be received at the time of invitation of occupants; the down payment shall be made within three days after the date of selection of occupants; the down payment shall be made within the period of three days after the date of invitation of occupants; and (2) The purpose of the house sale guarantee system as seen above is that the person who made the payment prior to the public announcement of the housing sale contract and the housing sale price shall not be deemed to be the one who has made the payment prior to the public announcement.

(2) Whether to protect the Plaintiffs in light of the purport of the guarantee system for sale of housing

The plaintiffs claim that, in principle, the defendant's guaranteed liability is widely recognized in light of the purpose of the house sale guarantee system under the Housing Act and the Enforcement Decree of the Housing Act, in order to protect the bona fide buyers who have concluded the sale contract and faithfully paid the sale price. ② The Supreme Court also concluded the sale contract with the housing construction business operator, but even if the housing construction business operator violated Article 18 of the former Rules on Housing Supply that the sale price should be divided into the sale price, the housing business mutual aid association which provided the housing construction business operator's guarantee cannot be exempted from the guarantee liability with the purport of refunding the down payment and the intermediate payment out of the sale price paid in lump sum as prescribed by the above provision (see Supreme Court Decision 98Da26477 delivered on May 28, 199). < Amended by Presidential Decree No. 16358, May 28, 1999; Presidential Decree No. 20650, Mar. 3, 2007>

(4) The purpose of the Rules on Housing Supply is to protect the bona fide buyers who concluded a contract for sale in lots with the housing construction business entity for the pre-sale of housing after the public announcement of invitation of occupants. (2) The system of guarantee for sale in lots is to start construction works after relaxing the recruitment time of occupants in recruiting occupants, while it is prepared to promote the sale in lots due to the existence of the system of guarantee for the occupants, and to ensure the sale in lots for housing, which is established under the Housing Act. (See Supreme Court Decision 2001Da511 delivered on June 9, 202.) The plaintiffs' assertion that the pre-sale in lots should not be regarded as a guarantee for the pre-sale in advance, and that the pre-sale in lots should not be regarded as a guarantee for the pre-sale in advance. (See Supreme Court Decision 2001Da511 delivered on June 9, 202.) The plaintiffs' assertion that the pre-sale in lots should not be regarded as a guarantee for the pre-sale in advance to the housing construction business entity.

(3) Whether the standardized contract of this case is null and void under the Regulation of Standardized Contracts Act

The plaintiffs asserted that Article 6 (2) 2 of the Act on the Regulation of Terms and Conditions applies to "terms and conditions" regulated by the Regulation of Terms and Conditions (hereinafter "Standard Terms and Conditions Regulation Act"), and that if the time of payment of the occupancy price paid by the person who entered into the contract for sale in lots before the announcement of the announcement of the announcement of the invitation of the public does not support the defendant's guarantee liability regardless of whether it is before or after the announcement of the announcement of the invitation of the public announcement, it is invalid pursuant to Article 6 (1), (2) 1, and Article 7 (3) of the Act on the Regulation of Terms and Conditions as it limits the defendant's guarantee liability without reasonable grounds or increases the requirements for the exercise of the right by the number of buyers who are customers subject to the guarantee liability, and therefore, it is difficult for the customers to expect

On the other hand, this case's terms and conditions are the terms and conditions regulated by the Act on the Regulation of Terms and Conditions as they are prepared in advance in order to be the contents of a housing sale guarantee contract that the defendant concludes with a large number of housing construction project undertakers.

However, the above house sale guarantee contract is a "contract for a third party" with the purport that the defendant would refund the down payment and intermediate payment paid by the housing construction project proprietor or complete the apartment of this case in lieu of the project proprietor and supply it to the seller (see Supreme Court Decision 97Da10208 delivered on September 26, 1997) upon the option of the buyer in cases where the guarantee accident occurred due to the default or bankruptcy of the buyer in charge of the housing construction project (see Supreme Court Decision 97Da10208 delivered on September 26, 1997). It is reasonable to view that the parties to the housing sale guarantee contract are decoration construction and the defendant, and the plaintiffs are only the beneficiaries who receive the payment

Therefore, the issue of whether the terms and conditions of this case are unfair shall be determined on the basis of decoration construction as party to the contract and the defendant (it is difficult to see that the plaintiff falls under "customers" as stipulated in Article 2 (3) of the Terms and Conditions Regulation Act), and in light of the economic status of the defendant and decoration construction and the purpose of the sale guarantee system, it cannot be deemed that the terms and conditions of this case unfairly disadvantageous to the decoration construction, and even if considering the interests of the beneficiaries of domestic affairs, it is difficult to recognize the necessity to protect the interests of the plaintiffs, who are the prior buyers, even if considering the interests of the beneficiaries of domestic affairs, and it is difficult to expect the forms of transaction because the sale procedure is detailed in the regulations on housing and housing supply, so it is difficult to see that the plaintiffs' above assertion

(4) Whether there was an implied agreement different from the terms and conditions of the sale guarantee

The defendant, on its Internet homepage, posted the plaintiffs themselves as the seller of the sale subject to the guarantee of sale, and has been conducting the guarantee business on the premise that the plaintiffs are the seller of the sale subject to the guarantee of sale, such as demanding the plaintiffs to notify the fact of the occurrence of the guarantee accident and the execution method of the guarantee. Thus, it shall be deemed that the defendant explicitly expressed the plaintiffs' intent to perform the guarantee of sale subject to the guarantee of sale. Since the plaintiffs did not intend to refuse it, it shall be deemed that there was an implied agreement between the plaintiffs and the defendant on the guarantee of sale prior to Article 4 subparagraph 3 of the terms of the sale guarantee of this case

In light of the above facts, the defendant notified the plaintiffs of the choice of the execution method of the guarantee and the execution method to refund to the plaintiffs, and the purport of the whole pleadings as stated in Gap evidence No. 9 (including each number), the defendants' posting of the plaintiffs on their own Internet homepage can be acknowledged. However, in light of the fixed formation of the house sale guarantee contract and mass nature, it is reasonable to consider the appropriateness of the guarantee as to the applicants who want to obtain the guarantee as to whether the project operator obtained the approval of the project plan and the business operator's credit rating, and it does not appear that the defendant was granted the right or duty to review the pre-sale contract, and it appears that the defendant posted the plaintiffs to the guarantee household on the Internet homepage under the premise that the number of buyers on the list of pre-sale applicants submitted the guarantee contract were normal buyers, and it can not be viewed that the defendant's presentation of the notice and data regarding the sale contract can not be acknowledged as being based on the premise that the sale contract was made for the purpose of the pre-sale contract's submission of the list or data to the plaintiffs.

B. Determination as to Plaintiff 17’s claim

(1) Plaintiff 17’s assertion

The plaintiff 17 entered into a contract for sale with construction on May 204, 204, which was after the announcement of this case (the date of May 10, 2004). The plaintiff 17 deposited 10 million won in the bank account of the non-party 4, who actually performed the business in the advanced weather c.P. (the "C.P.," hereinafter) as the contract deposit, and the remaining 1.1 million won was paid in cash, and the contract for sale was prepared on the date of payment, but the date of preparation is retroactive to April 12, 2004. The plaintiff 17 did not fall under the plaintiff 17's obligation to receive 7th anniversary of the contract for sale on May 5, 2004, the plaintiff 200's pre-sale order was prepared on the 7th anniversary of the contract for sale of the apartment house of this case, and the plaintiff 17th anniversary of the contract for sale of the plaintiff 17th anniversary of the contract for sale of this case.

(2) Determination

The Plaintiff’s assertion that the sales contract was concluded on May 1, 2004, that the sales contract was concluded on the 15th anniversary of the above 7th anniversary of the date of the above 7th sale contract. The Plaintiff’s assertion that the sales contract was concluded on the 15th anniversary of the above 7th anniversary of the above 10th anniversary of the 1st anniversary of the 1st anniversary of the 1st anniversary of the 7th anniversary of the 1st anniversary of the 7th anniversary of the 1st anniversary of the 1st anniversary of the 1st anniversary of the 20th anniversary of the 1st anniversary of the 1st anniversary of the 1st anniversary of the 20th anniversary of the 1st anniversary of the 1st anniversary of the 1st anniversary of the 20th anniversary of the 1st anniversary of the 1st anniversary of the 1st anniversary of the 1st anniversary of the 20th anniversary of the 1st anniversary of the 2nd of the 1st anniversary of the 2nd of the 1st sale contract.

C. Determination on Plaintiff 26’s claim

(1) Plaintiff 26’s assertion

The plaintiff 26 resells the right of sale from the non-party 6 who was the first seller after the public announcement of the invitation of the plaintiff. The defendant, after entering into the sale contract after the public announcement of the case, has the obligation to guarantee the sale of the house to the plaintiff 26, and in preliminary cases, even if the plaintiff 26 falls under the buyer in advance, the intermediate payment paid after the public announcement of the invitation of the plaintiff should be protected.

(2) Determination

According to the statement No. 35-1 of the evidence No. 35, the first buyer can recognize the fact that the contract for sale in lots was concluded on April 12, 2004 with respect to the apartment No. 102 Dong apartment house No. 102 prior to the public announcement of the public announcement. Whether the contract for sale in lots is subject to guarantee can prevent the application of the provision that excludes the person who entered into the contract prior to the public announcement of the public announcement of the public announcement from the object of guarantee for sale. Thus, the plaintiff 26 also constitutes a person who entered into the contract for sale in lots before the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement, and the plaintiff's assertion on the premise that the plaintiff 26 concluded the contract for sale in lots after the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement is without merit. Further, as seen above, as long as

3. Conclusion

Thus, the plaintiffs' claims are dismissed for all reasons.

[Attachment]

Judges Cho Jae-sung (Presiding Judge)