B. Whether the winner who purchased B apartment is eligible for preferential supply under Article 13(2) of the same Rule (negative)

(c) The case holding that an act of preferential supply of privately-owned apartments by a person who is not a person subject to preferential supply under the same rule may be deemed to violate Article 51 subparagraph 6 of the former Housing Construction Promotion Act (amended by Act No. 4530 of Dec. 8, 192) and Article 47 (1) of the former Housing Construction Promotion Act, but it cannot be recognized without any changes in the indictment

B. According to Article 13 of the same Rule, in order to become a person eligible for preferential supply of privately-owned housing of not more than 85§³, it is necessary to be a person falling under the first priority prior to the date of “not less than 35 years of age and not less than 5 years of age,” and “persons eligible for the first priority” is excluded from “persons falling under the first priority.” Thus, “persons eligible for the second priority” can not be a person eligible for the second priority supply even if a person with no houses is a person with no houses.

C. The case holding that an act of preferential supply of privately-owned apartments by a person who is not a person subject to preferential supply under the same rule may be deemed to violate Article 51 subparagraph 6 of the former Housing Construction Promotion Act (amended by Act No. 4530 of Dec. 8, 192) and Article 47 (1) of the former Housing Construction Promotion Act, but it cannot be recognized without any changes in the indictment.

1. The summary of the facts charged of this case is that the defendant owned B Apartment (Seong-dong 2, 105, 301, 1990) from October 25, 1985 to November 24, 1990, which is the date of public announcement of tenant recruitment, and the defendant is not a homeless householder, despite that he is not a homeless householder, in applying for parcelling-out of C apartment on December 3, 1990, the exclusive area of which is not more than 85 square meters and which is supplied to a homeless householder for not less than five years, in order to purchase the above C apartment with an exclusive area of not less than 85 square meters and is supplied to a homeless householder for five years or more, it shall be deemed as a pent-do-si with an indication of "non-household household with no house for five years or more" and it shall be deemed that the defendant received the winning house by means of preparing and receiving an application for parcelling-out with the exclusive area of C apartment, 84.90 square meters, 4.

2. According to Article 2 subparagraph 7 of the Rules on Housing Supply, the first instance court held that "the owner of a non-family house" means the head of the household where all members including the head of the household do not own the house. In this case, "the head of the household" means the case where the members including the head of the household acquire the house, not the original acquisition of the real estate, under our legal system which takes the form principle as to changes in real rights, and except for the case falling under Article 187 of the Civil Act, the transfer registration of ownership of the house is completed to the members of the household including the head of the household. The defendant was found not guilty of the apartment house of this case for the first half of October 25, 1985 after purchasing the B apartment of this case from the Korea National Housing Corporation and paying the down payment amount of KRW 4,900,000, and after concluding the sale contract, the defendant was not guilty of the apartment house of this case under the name of the Korea National Housing Corporation and the defendant was not registered in the apartment house of this case.

3. The judgment of the court of first instance on the concept of "ownership" is just, and there is no error in the misapprehension of legal principles on the concept of ownership in violation of the Housing Construction Promotion Act, and there is no error in the misapprehension of legal principles on the concept of ownership in violation of the Housing Construction Promotion Act.

Although the defendant was supplied with B apartment in this case, even if the transfer registration of ownership is not completed, the defendant should not be regarded as a non-resident in the case of a violation of Article 51 subparagraph 6 and Article 47 (1) of the Housing Construction Promotion Act (amended by Act No. 4530 of Dec. 8, 1992; hereinafter the same shall apply) even if he did not complete the transfer registration of ownership. However, it cannot be accepted.

4. However, Article 13(2) of the above Rule provides that the tenant selection of a private house shall be based on the order falling under each of the following subparagraphs, but the private house with 50% or less of its construction volume shall be supplied preferentially to the non-household owners (excluding the single-household owners) for 35 years or more but 5 years or more from among the persons falling under the first-order. The first-order deposit shall be the first-order deposit, and the second-year period shall be the one after the deposit of the amount in accordance with the standards set out in the attached Table 2. The second-year period shall be the one after the first-order deposit of the first-order deposit and the first-generation (including the spouse of a householder who is not entered in the same resident registration as the household owners) shall be excluded from the second-class house owners. Accordingly, in order to become the first-class beneficiary of the second-class apartment of this case, it is necessary to be the first-class person who falls under the first-class and the second-class to be supplied.

On the other hand, Article 13(1)1 of the above Rule provides that a person recorded in the list of winners under Article 17(2) of the above Rule (excluding a person selected as an occupant of a rental house which is not premised on sale, such as the old-gu rental housing, or as a person subject to occupancy in the list of winners under Article 17(2) of the above Rule) shall be referred to as "the winner". Article 17(2) provides that a housing bank shall electronically preserve the list of winners notified under the main sentence of paragraph (1) of this Article, and the main sentence of paragraph (1) provides that a project owner shall provide that a person selected as an occupant in the zone where the subscription deposit system is implemented, a person selected as an occupant in the Seoul Special Metropolitan City, Metropolitan City or Do, or a person who has been constructed in the Dong area by the Do governor and his spouse shall without delay notify the Housing Bank of the list of occupants on the business plan. Thus, even if a house is supplied under the previous rule, all persons who have purchased the house shall be referred to as "the winner".

However, if the Defendant purchased the instant B apartment on October 25, 1985, which was supplied by the Korea Housing Corporation as a project undertaker, it is clear that he is not a “person eligible for the first priority” as well as a person who cannot be a “person eligible for the first priority”. Nevertheless, if the Defendant was supplied the instant C apartment by deceit or other unlawful means under the presumption that he is a person eligible for the first priority supply, it can be deemed as a violation of Article 51 subparag. 6 and Article 47(1) of the Housing Construction Promotion Act. However, this cannot be deemed as a violation of Article 51 subparag. 6 and Article 47(1) of the Housing Construction Promotion Act, on the ground that this cannot be deemed as a fact that is not indicated in the facts charged in this case, and therefore, the lower court did not recognize this fact. Accordingly, there is no reason to issue

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Final Young-young (Presiding Justice)