[2] The time when the project undertaker, who obtained the approval of the project plan under Article 16 (2) 1 of the former Housing Act, can file a claim for sale (=at the time three months have elapsed since the date of the prior consultation)

[3] Whether the validity of the right to demand sale under Article 18-2 (1) of the former Housing Act is lost unless the right to demand sale is exercised within the exercise period (affirmative)

[2] The sale claim under Article 18-2 (1) of the former Housing Act (amended by Act No. 8657 of Oct. 17, 2007) does not require the highest procedure under Article 48 (1) of the Act on the Ownership and Management of Aggregate Buildings. Accordingly, Article 18-2 (1) of the former Housing Act provides that a prior consultation shall be made for a period of not less than three months, Article 48 (4) of the Act on the Ownership and Management of Aggregate Buildings, Article 48-2 (3) of the former Housing Act provides that the exercise period of the sale claim shall apply mutatis mutandis to Article 48 of the Act on the Ownership and Management of Aggregate Buildings, and Article 18-2 (3) of the former Housing Act provides that Article 16 (2) 1 of the former Housing Act shall apply mutatis mutandis to a project proprietor who has obtained approval of a project plan pursuant to Article 16 (2) 1 of the former Housing Act may request a sale from the time three months have elapsed

[3] The purpose of Article 48(4) of the Act on the Ownership and Management of Aggregate Buildings stipulating the period for exercising the right to demand sale is to establish a sales contract as a right to form a right to demand sale and to force the formation of a sale contract by a majority of rebuilding participants. Thus, if the period for exercising the right to demand sale is not limited, the other party to the request for sale is not aware of at any time and his legal status, and the market price of sectional ownership subject to the purchase is at a low time so that he can make a request for sale at no discretion and unfairly infringe on the rights and interests of the other party to the request for sale. Therefore, it is reasonable to deem that the right to demand sale is to protect the legitimate interests of the other party to the request for sale and to promptly determine the legal relationship surrounding reconstruction, and such legal principle also applies to the request for sale under Article 18-2(1) of the former Housing Act.

1. Article 16(2) of the former Housing Act (wholly amended by Act No. 8657, Oct. 17, 2007; hereinafter the same) provides that "a person who intends to obtain approval of a housing construction project plan shall secure ownership in the relevant housing construction site: Provided, That this shall not apply to cases falling under any of the following subparagraphs," and subparagraph 1 of the same Article provides that "a person who intends to obtain approval of a housing construction project plan shall secure the right to use not less than 80/10 of the relevant housing site area as a housing construction project requiring a decision (including cases where a decision is made pursuant to the provisions of Article 17(1)5 of the National Land Planning and Utilization Act) on district unit planning (hereinafter referred to as "district unit planning") under Article 49 of the National Land Planning and Utilization Act

As such, Article 16 (2) 1 of the former Housing Act provides that, in the case of a housing construction project requiring the determination of a district unit plan, only a right to use at least 80/100 of the relevant site area shall be secured by deeming a group of housing construction sites as one lot of land and allowing approval for the housing construction project plan. Here, there is no restriction that a person who intends to obtain approval for the housing construction plan under the former Housing Act shall secure a private ownership or obtain consent from other co-owners in the case of a co-owned land. According to Article 263 of the Civil Act, a co-owner is in a position to use and profit from all co-owned land in the proportion of shares, if a person who intends to obtain approval for the housing construction plan acquires a partial share ownership of a co-owned land among the housing construction sites or obtains a consent to use from a partial co-owner, even if the person fails to obtain consent from other co-owners.

In the above purport, the court below rejected the defendant's assertion that "the right to use the relevant land" as stipulated in Article 16 (2) 1 of the former Housing Act cannot be deemed to be secured in the event that the plaintiff acquired a part of co-owned share ownership without the consent of all other co-owners, and held that the plaintiff secured a right to use the land equivalent to about 35,065 square meters out of about 42,803 square meters in total of the site area of the housing construction project at the time when the plaintiff applied for approval of the housing construction project plan of this case, and there is no error of law in the disposition of approval of the housing construction project of this case, as alleged in the grounds of appeal.

2. Article 18-2 (1) of the former Housing Act provides that "any project undertaker who has obtained approval of a project plan pursuant to Article 16 (2) 1 shall exclude any person who has acquired and continues to hold the ownership of the relevant site ten years prior to the date of determination and notification of the district unit planning zone (including any building; hereafter the same shall apply in this Article and Article 18-3) from the owner of the site for which he/she has failed to secure the title to use among the relevant housing construction sites. In such cases, when calculating the period of ownership of the site, he/she may request that the owner of the site sell the site at the market price. In such cases, when calculating the period of ownership of the site, the period of ownership of the site shall be added up when he/she acquires the ownership from his/her lineal descendant, lineal descendant, and his/her spouse, the period of ownership of the site subject to the request for sale shall be added up to the period of three months or more, and Article 18 (2) of the former Housing Act shall apply mutatis mutandis to the request for sale under Article 18 (3) of the Housing Act.

Meanwhile, the purport of Article 48 (4) of the Aggregate Buildings Act stipulating the period of exercise of the right to request sale is that the right to form a right to request sale is enforced by a majority of rebuilding participants. Thus, if the period of exercise is not limited, the other party to the right to request sale will not be able to make a request for sale at any time, and his legal status is not safe. In addition, in light of the fact that if the period of exercise is not limited, the market price of divided ownership subject to the request for sale will be set at a time so that he can make a request for sale at any time and would unfairly infringe the rights and interests of the other party to the request for sale, it is reasonable to consider that the right to request sale is to protect the legitimate legal interests of the other party to the request for sale and to determine the legal relations surrounding reconstruction as soon as possible, the right to request sale will lose its effect unless it is exercised within the period of exercise (see, e.g., Supreme Court Decisions 200Da11621, Jun. 27, 2000).

In the above purport, the court below is just in holding that the plaintiff's claim for sale against the defendant under Article 18-2 (1) of the former Housing Act does not require the peremptory procedure under Article 48 (1) of the Aggregate Buildings Act, and that the plaintiff exercised the right to demand sale within 2 months after the date of prior consultation and complied with the exercise period of the right to demand sale, and there is no violation of law such as misunderstanding of legal principles as claimed in

3. Therefore, the appeal is 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.

Justices Kim Nung-hwan (Presiding Justice)