[2] Where the terms and conditions of guarantee for the sale of housing excludes "the amount paid by the person who entered into a contract for the sale of housing before the public announcement for the recruitment of occupants" from the subject of guarantee liability, the case holding that the "the amount paid by the person who entered into the contract for the sale of housing before the public announcement for the recruitment of occupants" shall be interpreted as the whole amount of the occupancy payment paid by the person who entered into the contract for the sale of housing

[3] Party to a housing unit sale guarantee contract (=party to a housing unit sale guarantee contract with the project owner and the Korea Housing Guarantee Company), and whether the buyer constitutes a "customer" under Article 2 (3) of the former Act on the Regulation of Terms and Conditions (negative)

[4] The case holding that in a case where the terms and conditions of a housing sale guarantee agreement excludes "the occupancy amount paid by a person who entered into a housing sale contract before the public notice of the invitation of occupants from the scope of the guaranteed obligation, such terms and conditions cannot be deemed null and void because they are unfairly unfavorable to the customer, or difficult for the customer to anticipate it, or the scope of liability of

[2] The case holding that in case where the standardized contract for the sale of housing is excluded from the scope of guarantee obligation, the person who signed the contract for the sale of housing prior to the public announcement of the invitation of occupants, in light of the fact that it is difficult to regard the person who signed the contract for the sale of housing prior to the public announcement of the invitation of occupants as the person who signed the contract for the sale of housing prior to the public announcement of the invitation of occupants according to the procedure and method stipulated in the standardized contract for the sale of housing, it shall be interpreted as the whole of the occupancy amount paid by the person who signed the contract for the sale of housing prior to the announcement of the invitation

[3] In the former Act on the Regulation of Terms and Conditions (amended by Act No. 10169, Mar. 22, 2010; hereinafter “former Act”), “customers” refers to one of the parties to a contract who has proposed terms and conditions to be the terms and conditions to the business operator (Article 2(3)), and in the case where a business operator who constructs housing under the former Housing Act (amended by Act No. 9405, Feb. 3, 2009) becomes unable to perform a sales contract due to bankruptcy, etc., the Korea Housing Guarantee Co., Ltd. is a contract for a third party on condition that the business operator is liable for the performance of the relevant house or the refund of the down payment and the intermediate payment paid by the buyer. Thus, the parties to the housing sales guarantee contract is the Korea Housing Guarantee Co., Ltd., and the buyer is merely the beneficiary who receives benefits by expressing his/her intent to pay the proceeds (request for the performance of guarantee obligation) to the Korea Housing Guarantee Co., Ltd. upon the fulfillment of the above conditions.

[4] The case holding that in a case where the standardized contract for the sale of housing was excluded from the scope of guarantee liability under the standardized contract for the contract for the sale of housing, the issue of whether the standardized contract provision falls under Article 6 (2) 1 and 2, and Article 7 subparagraph 3 of the former Act on the Regulation of Terms and Conditions (amended by Act No. 10169, Mar. 22, 2010) shall be determined on the basis of average and typical profits of the business entity who is the party to the contract for the sale of housing, and the above unlawful housing sale contract should be prohibited under the relevant law, and the business entity must bear disadvantage due to the above standardized contract provision, and the fact that the business entity needs to protect the buyer, as a matter of course, does not necessarily receive the benefit of guarantee, it cannot be deemed null and void since the standardized contract provision is unfairly unfavorable to the customer, or the customer cannot expect it, or the scope of liability of the corporation is unreasonably limited.

1. Regarding ground of appeal No. 1

General terms and conditions shall be interpreted fairly and reasonably in light of the purpose and purpose of the terms and conditions in accordance with the principle of trust and good faith, and shall be interpreted objectively and uniformly based on the average customer's interests, without considering the intended purpose and intent of each party to the contract (see, e.g., Supreme Court Decisions 2008Da81633, May 28, 2009; 2010Da45777, Nov. 25, 2010). In particular, in cases where the content of the contract has a significant impact on the other party's legal status as the content of the contract prepared by one party, it shall be interpreted more strictly in light of the purport of Articles 6(1) and 7(2) of the former Act on the Regulation of Terms and Conditions (amended by Act No. 10169, Mar. 22, 2010; hereinafter referred to as the "former Terms and Conditions Regulation Act").

According to the facts acknowledged by the court below, the defendant, on May 10, 2004, excluded the "the occupancy amount paid by the person who entered into a housing sale contract prior to the public notice of tenant recruitment" from the subject of the guaranteed liability under Article 4 subparagraph 3 of the Housing Sale Guarantee Clause (hereinafter referred to as the "Terms and Conditions of this case") of the Housing Sale Guarantee Clause (hereinafter referred to as the "Terms and Conditions of this case") which consists of the two units of apartment units 270 Dong Dong-dong, Busan-dong, 1166-1, Seocho-dong, Busan (hereinafter referred to as "the apartment units of this case") among the construction of decoration Co., Ltd. (the trade name before the change of May 20, 2004):

The language and text of the provision of this case, the former Housing Act (amended by Act No. 9405, Feb. 3, 2009; hereinafter the same shall apply) and the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 21159, Dec. 9, 2008; hereinafter the same shall apply) provide for the defendant's guarantee system for sale of housing in accordance with the procedures and methods prescribed by the former Housing Act for the public announcement of sale in lots, and its purpose is to protect the number of bona fide buyers who have paid the sale price (see Supreme Court Decisions 200Da18790, May 8, 200; 201Da511, Sept. 6, 2002; hereinafter the same shall apply). Thus, it is difficult for the person to acquire the housing first sale in lots from the date of public announcement of invitation of sale in lots to the public, and it is difficult for the public to acquire the ownership of the housing at the same time after the public announcement of sale in lots.

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 terms.

2. Regarding ground of appeal No. 2

The term "customers" in the former Terms and Conditions Regulation Act refers to one of the parties to a contract who has been proposed to include terms and conditions in a contract from a business operator (Article 2(3)), and where a business operator who constructs housing pursuant to the former Housing Act becomes unable to perform a contract for sale due to bankruptcy, etc., the contract is for a third party with which the defendant assumes responsibility for performing the contract deposit and the refund of intermediate payment paid by the buyer (see Supreme Court Decisions 97Da10208 delivered on September 26, 1997; 2005Da68783 delivered on May 12, 2006; 2005Da68783 delivered on May 12, 2006, the parties to the housing sale guarantee contract are the parties to the contract and the defendant, and if the above conditions are fulfilled, the parties to the contract can only receive the defendant's declaration of intent of profit (request for the performance of the guarantee obligation) and it cannot be determined unfairly as the average terms and conditions of the contract of this case.

The above legal principles and the purport of the house sale guarantee system mentioned above, the business entity is a business entity that constructs housing after obtaining approval of a business plan under related Acts and subordinate statutes, such as the former Housing Act, and is in a position to carry out the business accordingly. The disadvantage suffered by the business entity due to the terms and conditions of this case is merely a violation of the relevant Acts and subordinate statutes, such as the former supply regulations, and the contract for house sale is subject to restrictions on the conclusion of such house sale contract by failing to obtain a guarantee. As such, illegal housing sale contract should be prohibited under the relevant Acts and subordinate statutes such as the former supply regulations, and the above restrictions must be naturally accepted. The defendant is a corporation established pursuant to the Housing Act to protect housing construction contractors, promote housing construction, contribute to improvement of housing welfare, etc. (Article 76 (1) of the former Housing Act), and the same house sale guarantee system as in this case is based on Article 77 (1) 1 of the same Act, and thus, it cannot be viewed that the defendant's guarantee or its interest cannot be seen as being unfairly restricted to the above.

In the same purport, the judgment of the court below that the standardized contract provision of this case is not null and void is just, and there is no error in the misapprehension of legal principles as to Article 6 (1), (2) 1 and 2, and Article 7 (3) of the former Standardized Contract Regulation Act as alleged in the ground of appeal.

3. As to the third ground for appeal

In light of the records, the selection of evidence and the recognition of facts belong to the discretionary authority of a fact-finding court unless they are against logical and empirical rules. In light of the records, the court below is justified in holding that there is no evidence to acknowledge that the defendant was aware of the prior sale of decoration construction around February 2005, as alleged by the plaintiffs, at the latest, and there is no error of law such as misconception of facts against the rules of evidence as alleged in the grounds for appeal. The remaining grounds for appeal that differs from the premise are without merit.

4. As to the fourth ground for appeal

The court below determined that the defendant's act of notifying the plaintiffs of the choice of the method of implementing the guarantee or notifying the plaintiffs of the method of implementing the guarantee payment, and if the defendant entered the information about the plaintiffs in the defendant's Internet homepage seller's inquiry screen and searched the information about the plaintiffs, the plaintiffs also can be confirmed as "household with the issuance of the guarantee". The defendant received the additional guarantee fee from the soon construction around January 2005 and received the amount calculated as the object of the guarantee for the whole unit unit, including the apartment unit that the plaintiffs purchased in lots, as a fee, but in full view of the circumstances known by the evidence of employment, the defendant's act of posting the plaintiffs on the Internet homepage or receiving the guarantee fee for the whole unit unit from the construction of the so-called decoration was merely based on the premise that the purchaser on the list submitted by the so-called Construction is a normal buyer, and it seems that the defendant's notification to the plaintiffs of the occurrence of the guarantee accident and the method of implementing the guarantee payment cannot be seen as taking precedence over the terms and conditions of this case against the whole purchaser.

In light of the records, the above fact-finding and judgment of the court below are just, and there is no violation of the rules of evidence or incomplete hearing as alleged in the grounds of appeal.

5. Ground of appeal No. 5

In light of the records, it is justified that the court below recognized that Plaintiff 13 entered into the sales contract of this case before May 10, 2004 where the intermediate payment loan was made by Plaintiff 13 on the grounds as stated in its holding, and there is no violation of the rules of evidence or incomplete deliberation as otherwise alleged in the ground of appeal.

6. Conclusion

Therefore, all appeals are dismissed, and the 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 Lee In-bok (Presiding Justice)