[2] In a case where a reconstruction association sells a house, etc. to its members without following the procedure under Articles 33 through 45 of the former Urban Redevelopment Act, which are applied mutatis mutandis pursuant to Article 44-3 (5) of the former Housing Construction Promotion Act, whether the registration of a housing site and constructed facilities may be made pursuant to Article 40 of the former Urban Redevelopment Act, Article 56 of the former Urban Redevelopment Act, Article 5 of the former Rules on the Disposal of Registration of Urban and Residential Environment Improvement Act, and Article 5 of the

[3] In a case where a reconstruction project is not a reconstruction project accompanying replotting, whether a change in the substantive legal relationship occurs due to the cadastral adjustment implemented under the Cadastral Act after the completion of the housing construction project (negative)

[4] Whether a partner bears acquisition tax, etc. separately for shares exceeding the shares of the transferred site due to the termination or termination of the trust among shares of the apartment house that were sold to a reconstruction association (affirmative in principle)

[5] The case reversing the judgment below that Gap reconstruction association suffered losses from Eul by performing its business in breach of the duty of due care as a good manager, in case where Gap reconstruction association implemented the registration procedure for preservation of ownership of the apartment that Eul purchased pursuant to the delegation contract with Eul and the ownership of the above apartment house exceeds the ownership of the right to a site transferred due to the trust property, and Eul additionally bears acquisition tax, etc. on the excessive part

[2] Where a reconstruction association has sold a new house or building site to its members through the procedures of approval of a management and disposal plan under Articles 33 through 45 of the former Urban Redevelopment Act (repealed by Act No. 6852, Dec. 30, 2002; hereinafter “former Housing Construction Promotion Act”) which are applicable mutatis mutandis under Article 44-3(5) of the former Housing Construction Promotion Act (amended by Act No. 6852, Dec. 30; hereinafter “former Urban Redevelopment Act”) and the procedures of public announcement of the disposal and disposal plan under Articles 33 through 45 of the former Urban Redevelopment Act (amended by Act No. 6852, Dec. 30, 2002; hereinafter “former Urban Redevelopment Act”) or the procedures of public announcement of the sale and disposal plan under Article 5 of the former Housing Construction Promotion Act (amended by Act No. 3065, Apr. 2, 2008; hereinafter “former Urban Redevelopment Act”) or the ownership of a new building site is not publicly notified of the old Housing Construction Promotion Act or new Housing Act.

[3] In the case of a reconstruction project that is not a replotting project that involves replotting, the cadastral adjustment implemented under the Cadastral Act after the completion of the housing construction project cannot be deemed a replotting disposition, as well as there is no change in the substantive legal relationship with the pertinent land.

[4] As to the portion exceeding the share of the right to a site transferred due to the termination or termination of the trust among the share of the right to a site of an apartment building sold by a member to a reconstruction association, the acquisition tax and registration tax shall be borne even if the registration of transfer is completed on any ground of registration, unless it is subject to non-taxation. Thus, even if the reconstruction association completed the registration of transfer by the method of preparing a sales contract, it does not cause any additional

[5] The case reversing the judgment of the court below that Gap reconstruction association suffered losses to Eul additional acquisition tax, etc. by performing its business by preparing a sales contract in violation of the duty of due care of a good manager, in case where Gap reconstruction association's ownership of the above apartment house exceeds the ownership of the right to a site transferred due to the trust property, and Eul additionally bears acquisition tax, etc. due to sale; Gap reconstruction association's registration cannot be made pursuant to the Urban and Residential Environment Improvement Registration Rules, etc. without going through the procedure such as public announcement of sale disposal; it cannot change the substantive relation of the right to a site by means of intellectual adjustment under the Cadastral Act; and Eul's share of the right to a site exceeding the trust share is not bound to bear acquisition tax, etc. separately, regardless of the cause of registration of transfer, on the ground that Eul reconstruction association's duty of care as a good manager, in case of Gap reconstruction association's share of the right to a site exceeding the trust

1. The measure of the court below

The reasoning of the judgment below is as follows. The defendant is the project undertaker of the reconstruction project of Yong-dong apartment complex 75-4, Gangnam-gu, Seoul, and the plaintiff entrusted the defendant with the reconstruction project of 28 Dong-dong apartment complex (hereinafter omitted) for the purpose of rebuilding. Although the ownership of the trust property was 36.86/1 of the initial 30,963, part of the trust property was donated to the Gangnam-gu office for sale and purchase of land to 32.15/17.69, and the plaintiff was not entrusted with the management and disposal plan of the above portion of the land to the plaintiff 70, 101 Dong-dong (hereinafter referred to as "the apartment of this case"), which was reconstructed by the defendant on June 13, 2007. The court below found that the plaintiff's share in the site of this case was transferred to the plaintiff 26,977, 305/167, and the defendant was entrusted with the management and disposal plan of the above part of the building site.

2. Determination

However, we cannot accept the above determination by the court below for the following reasons.

A. As to the first ground for appeal

According to the evidence employed by the court below, the defendant was established on December 13, 200 pursuant to the former Housing Construction Promotion Act (amended by Act No. 6852 of Dec. 30, 2002; hereinafter the "former Housing Construction Promotion Act") for the purpose of removing old and poor old apartment units, etc. located in the implementation zone and rebuilding apartment units and ancillary facilities with the area of project implementation of 755-4 large scale 30,963 square meters in Gangnam-gu, Seoul and the defendant started as a reconstruction association approved for the housing construction project under Article 33(1) of the former Housing Construction Promotion Act on August 1, 2002, but started as a reconstruction association approved for the housing construction project plan under Article 33(1) of the former Housing Construction Promotion Act (hereinafter the "Urban Improvement Act"), and the name of the reconstruction and improvement project association was modified on December 30, 202 and completed on July 1, 2003.

However, Article 7 (1) of the Addenda to the Urban Improvement Act (Act No. 6852, Dec. 30, 2002) provides that "the previous Act is in force with the approval of the project plan or the authorization of the project implementation under the previous Act shall be in accordance with the previous Act." As to the reconstruction association which has obtained the approval of the housing construction project plan under the former Housing Construction Promotion Act, the provisions on the approval of the management and disposal plan, which is the implementation method of the reconstruction project under the Urban Improvement Act, and the transfer notification based thereon, as well as the provisions on other detailed procedures and methods of the Urban Improvement Act, shall be excluded. In principle, the involvement of the administrative agency by the approval of the project plan shall be completed, and the members shall acquire the right to purchase, and the rights distribution between the operation of the reconstruction association and the members of the reconstruction association, and the transfer of ownership of the newly-built building or site shall be conducted autonomously under the Civil Act, etc. (see Supreme Court Decision 2009Da78368, Jan. 28, 2010).

Meanwhile, in a case where a reconstruction association has sold a new house or site to its members without following procedures such as the approval of a management and disposal plan and the announcement of a sale disposal plan pursuant thereto under Articles 33 through 45 of the former Urban Redevelopment Act (repealed by Act No. 6852, Dec. 30, 2002; hereinafter “former Urban Redevelopment Act”), which are applicable mutatis mutandis under Article 44-3(5) of the former Housing Construction Promotion Act, or through procedures such as the approval of a management and disposal plan and the publication of a sale disposal plan under the Urban Redevelopment Act, or the sale of a new house or site to its members, the right to the old house or site can be deemed to have been jointly exchanged or modified as a right to the new house or site without having followed such procedures as the announcement or transfer announcement of the approval of the management and disposal plan and the subsequent announcement of the sale disposal plan. However, in a case where the new house or site has been sold to its members, the association members can not be deemed to have acquired a new house or site different from the old house or site by the association regulations or the sale contract.

Therefore, where a reconstruction association under Article 33 through 45 of the former Urban Redevelopment Act, which applies mutatis mutandis pursuant to Article 44-3(5) of the former Housing Construction Promotion Act, has obtained the approval of a management and disposal plan and the notification of the sale in lots, or has gone through the procedures such as the authorization of a management and disposal plan under the Urban Redevelopment Act and the transfer and public notification thereof, etc., it may register the site and constructed facilities in accordance with Article 40 of the former Urban Redevelopment Act and Article 5 of the former Urban Redevelopment Registration Rules (repealed by Supreme Court Regulation No. 1833, Jun. 28, 2003) of the former Urban Redevelopment Act and Article 5 of the former Urban Redevelopment Registration Rules (amended by Supreme Court Regulation No. 1833, Jun. 28, 2003).

Furthermore, according to the former Cadastral Act (Abolition by Act No. 974 of Jun. 9, 2009), the former Enforcement Decree of the Cadastral Act (Abolition by Presidential Decree No. 2181 of Dec. 14, 2009), the former Enforcement Rule of the Cadastral Act (Abolition by Ordinance No. 191 of Dec. 14, 2009), the Regulations on the Management of Cadastral Affairs (Rules No. 106 of the Ministry of Land, Transport and Maritime Affairs of Aug. 21, 2009) and other relevant provisions, the project implementer of the above urban development project, etc. shall report to the competent authority on the completion of the project after completion of the project (including urban rearrangement project under the Urban Rearrangement Act), the land category of the land is to be changed, etc. (Article 27(1)4 of the above Enforcement Decree; Article 32(1)4 of the above Enforcement Decree); a land substitution plan having the same effect as a replotting disposition for a project involving replotting; a land substitution certificate for a project not involving land category shall be prepared to the competent authority.

Comprehensively taking account of the above laws and regulations on intellectual reorganization, in a case where a project is not a project involving replotting, such as the reconstruction project in this case, cadastral adjustment implemented under the Cadastral Act after the completion of a housing construction project cannot be deemed a replotting disposition, and thereby, does not cause any change in the substantive legal relationship with respect to the relevant land (see Supreme Court Decision 91Nu9329 delivered on October 27, 192).

Nevertheless, even if the reconstruction project of this case did not go through the procedures such as the authorization of the management and disposal plan and the announcement of the sale disposition, the court below determined that the ownership share can be adjusted by closing the previous cadastral record after the completion of the reconstruction project, preparing a new cadastral record and completing land rearrangement, and that the failure to take such measures violates the duty of due care of the mandatory. Therefore, the court below erred by misapprehending the legal principles on the validity of the registration procedure in the reconstruction project to which the former Housing Construction Promotion Act applies or the cadastral adjustment conducted after the completion of the housing construction project. The ground of appeal assigning this error

B. Regarding ground of appeal No. 2

Acquisition tax is imposed on the purchaser of real estate, etc. [Article 105 (1) of the former Local Tax Act (wholly amended by Act No. 10221, Mar. 31, 2010; hereinafter "the former Local Tax Act"); "acquisition" in acquisition tax means "acquisition, exchange, inheritance, gift, contribution, investment in kind to a corporation, construction, repair, reclamation of public waters, creation of land through reclamation, and any other similar acquisition, which is an original acquisition, acquisition by succession, or acquisition by succession, or without compensation, if any, is registered or recorded in the public register (Article 104 subparagraph 8 of the former Local Tax Act); registration tax imposes on the person to whom the registration is made (Article 124 of the former Local Tax Act); and a person who completes the registration of ownership transfer on real estate shall bear acquisition tax, registration tax, etc. unless it is subject to non-taxation under the Act.

However, if the trust is transferred from the trustee to the truster due to the termination or termination of the trust, the "acquisition" and the "registration" of the acquisition shall not impose the acquisition tax and the registration tax (Article 110 subparagraph 1 (b) and Article 128 subparagraph 1 (b) of the former Local Tax Act).

In light of the aforementioned factual relationship in light of the aforementioned factual relationship, as to the portion exceeding the share of the right to a site transferred due to the termination or termination of the trust among the share of the right to a site of the instant apartment that the Plaintiff purchased from the Defendant, the Plaintiff is bound to bear the acquisition tax and registration tax, etc., even if he completed the registration of transfer due to any reason for registration, unless it is subject to non-taxation. Thus, even if the Defendant completed the registration of transfer by the method of preparing a sales contract

Nevertheless, the court below judged that the plaintiff suffered losses from additional acquisition tax due to the defendant's above business process, which is erroneous in the misapprehension of legal principles as to the obligation to pay acquisition tax and registration tax. The ground of appeal pointing this out has merit.

C. Meanwhile, according to the records, only the defendant appealed against the judgment of the court of first instance which partly accepted a claim for damages due to a tort, and the plaintiff appealed to the claim for damages due to a default. However, since the change in the above claim is changed to a new claim without an obvious declaration of intent to withdraw the previous claim and its form is unclear, the court below has a duty to clarify the change in the claim, i.e., whether it is exchanged or additional (see, e., Supreme Court Decision 94Da6802, May 12, 1995). Next, where the court below cited a claim for damages due to a new default on the ground that it is reasonable, the defendant's appeal should not be dismissed even if the conclusion is identical to the judgment of the court of first instance. If the change in the claim is selective or additional, then the court of first instance should pronounce the new order citing the change in the claim following the cancellation of the judgment (see, e.g., Supreme Court Decision 92Da7023, Sept. 14, 1992).

3. Conclusion

Therefore, the judgment of the court below is reversed, and 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 Cha Han-sung (Presiding Justice)