2. The defendant's remaining appeal is dismissed.

3. The costs of the lawsuit shall be five minutes for both the first and second instances, and one of them shall be borne by the plaintiff and the other by the defendant.

The defendant shall pay to the plaintiff 17,44,00 won with 25% interest per annum from November 3, 200 to full payment.

2. Purport of appeal

The part of the lower judgment against the Defendant is revoked, and the Plaintiff’s claim against the revocation is dismissed.

The following facts do not conflict between the parties, or can be acknowledged in full view of the results of the fact inquiry about Gap evidence 1, Gap evidence 2-1, Eul evidence 2-1, Eul evidence 1-2, Eul evidence 2-2, Eul evidence 3-1 and Eul evidence 3-2, and the result of the fact inquiry about Eul evidence 1-2, Eul evidence 2-2, Eul evidence 3-1, and Eul evidence 3-2 by the court of the original instance,

A. On July 8, 1997, the Housing Project Mutual Aid Association entered into a housing sale guarantee contract with the Seo River Construction Co., Ltd. (hereinafter referred to as the "Seo River Construction"), with respect to Seo River Construction newly constructed on the land outside 36-8 and six parcels in Nam-dong, Nam-gu, Incheon for the buyers, and issued a housing sale guarantee certificate with respect to "an obligation to compensate" as stated in Article 1, with respect to "an obligation to sell the house due to bankruptcy, etc.", the Housing Sale Guarantee Clause (hereinafter referred to as the "Terms and Conditions of this case") provides that "an association shall pay the down payment and intermediate payment already paid or the obligation to pay the house in accordance with the terms and conditions of this Guarantee, if our members fail to perform the sale of the house in question due to bankruptcy, etc.", and Article 6 (1) provides that "an association shall pay the down payment and the intermediate payment only if the association pays the down payment and the intermediate payment made by the association."

B. On July 31, 1997, the Plaintiff entered into a contract to purchase the second floor 202,00 commercial building in the said Seocho apartment complex (hereinafter referred to as the “instant real estate”) in total amount of KRW 43,610,000, and paid the down payment of KRW 8,722,000, which is a part of the first part of the said day, and the payment of KRW 8,722,00,000, which is a part of the intermediate payment on November 5, 1997, respectively.

C. On May 8, 1998, the construction of the river apartment complex was suspended due to the default on the payment of the debt on May 8, 1998. On September 23, 1998, the Housing Business Mutual Aid Association determined the method of implementing the guarantee performance by the resolution of the board of directors on September 23, 1998, and the non-party Ampi Construction Co., Ltd. completed the inspection of the use of the above Seog apartment complex on September 1, 199.

D. On June 3, 1999, pursuant to Article 5 of the Addenda of the Housing Construction Promotion Act amended by Act No. 5908, Feb. 8, 1999, the Housing Business Mutual Aid Association was changed to the defendant, and the defendant comprehensively succeeded to all the property, rights and obligations of the Housing Business Mutual Aid Association pursuant to Article 6 of the Addenda.

2. Determination:

(a) Occurrence of the surety obligation;

According to the above facts, the construction of Seo River was unable to perform the duty of commercial supply in the above sales contract due to the default, so the defendant who succeeded to the housing project mutual aid association shall be liable to perform the guaranteed obligation under the above housing sales guarantee contract.

B. Judgment on the defendant's assertion

(1) The assertion as to the attribution of the guaranteed claim

The defendant asserts that since the guarantee creditor of the housing sale guarantee contract of this case which the Housing Business Mutual Aid Association and the Seo River Construction are the head of Namdong-gu Incheon Metropolitan City, the plaintiff, the individual buyer, cannot be the guarantee creditor of the above sale guarantee contract.

However, according to the evidence No. 1-1 of this case, the guarantee creditor on the house sale guarantee of this case can be recognized as the head of Namdong-gu Incheon. However, in light of the contents of the above house sale guarantee contract, the old Housing Construction Promotion Act (amended by Act No. 5451 of Dec. 13, 1997), which is the basis law for the establishment of the Housing Business Mutual Aid Association (amended by Presidential Decree No. 15786 of Apr. 30, 1998), etc., the above sale guarantee contract can not be seen as a contract for the above construction of apartment complex under the name of the third party for the purpose of the above construction of apartment complex because it is impossible to complete the construction of apartment complex due to the default of Seo River construction, etc., and the plaintiff's assertion that the above construction guarantee creditor cannot be seen as a contract for the above construction of apartment complex under the name of the above third party, because the housing business mutual aid association could not perform the duty of supply under the contract for the construction of the above apartment complex.

(2) The assertion on the attribution of options

Next, the Defendant asserts that, in light of Article 380 of the Civil Code, Article 5 of the Terms and Conditions of Guarantee for Sale of Housing, and the nature of the guaranteed debt of this case that must be uniformly performed to all buyers, the right to choose how to perform the guaranteed debt in any way if the guaranteed accident occurred, is the Housing Business Mutual Aid Association. On the other hand, when the option is exercised, the purpose of the obligation is determined as the selected benefit and the other benefit ceases to exist. Thus, the Housing Business Mutual Aid Association of September 23, 1998, as long as it selects the performance as the method of performing the guaranteed obligation for the instant real estate as the method of performing the guaranteed obligation for the instant real estate on September 23, 1998.

However, according to the evidence 1-2 of this case, Article 5 of the terms and conditions of this case provides that "the above union shall determine the method of performing the guaranteed obligation." However, the terms and conditions of this case do not have any provision about the time of determining the method of performing the construction or the case where the above union does not determine the method of performing the construction. Accordingly, even if the above union delays the exercise of the right of choice, it is difficult to regulate the sale contract without any method, and there is a concern about causing damages such as delayed occupancy time and repayment of the interest of the sale price already paid. Thus, the above terms and conditions of this case are contents unfairly unfavorable to the buyer and thus are null and void (Article 6 (1)-2 of the Regulation of Terms and Conditions). Meanwhile, according to the related provisions of the Housing Construction Promotion Act and the Enforcement Decree of the same Act, the purpose of this case is to protect the buyer, and thus, the association's right to guarantee the sale of housing project can not be asserted to the purchaser of the housing project and the purchaser of the sale price.

(3) Claims and determination as to the withdrawal of choice

In addition, the defendant asserts that even if the right of choice of the obligation to perform the guarantee of this case is the plaintiff, so long as the plaintiff selects the payment of the sale performance by filing a lawsuit to the defendant for the execution of the transfer registration procedure of ownership to the real estate of this case, the contents of the defendant's guarantee obligation becomes final and conclusive as the execution of sale performance. Accordingly, the plaintiff's request for modification of the purport of claim as of January 27, 2001, which is in progress in the court below, and again seeking the payment

However, according to Articles 382(2) and 383(2) of the Civil Act, an expression of intent of choice shall not be withdrawn without the consent of the other party (in cases where a creditor or an obligor is the option holder) or the creditor or obligor (in cases where a third party is the option holder), and the purport of such option is to determine the contents of benefits which are the object of a claim by unilateral declaration of intent of the option holder, if option is exercised, the subject of the claim becomes final and conclusive, and the other party trust in the performance of the obligation or the receipt of the claim. Accordingly, it is necessary to prevent the change of the option at will from causing unexpected damages to the other party if the option is changed at will. Thus, even after the option holder expresses his/her option, it is difficult to attain the objective of the judgment of the court below by selecting the other party, and even if the content of the option is changed, it is difficult to acknowledge that the change of the right of choice is a new one of the plaintiff's claims for reimbursement without the consent of the other party.

3. Conclusion

Therefore, the defendant is obligated to pay damages for delay at a rate of 17,44,00 won (8,722,000 won +8,722,00 won) in total paid to the plaintiff and 6% per annum under the Commercial Act from February 3, 2001 to May 30, 2002, which is the day following the delivery date of the application for modification of the purport of the claim of this case, and 25% per annum from the next day to the day of full payment (the plaintiff is liable to pay damages for delay at a rate of 17,444,00 won from November 3, 200 to the day of the decision of the court of the first instance). Thus, the defendant's contract deposit and part of part of this case, unlike the duty of restoration due to the cancellation of the contract, shall be dismissed for the remainder of the plaintiff's claim for delay payment within the period from the next day to the day of the decision of the court below's rejection of the above purport of this case's claim of this case.

Judges Lee Jae-won (Presiding Judge)