208Guhap21409 Revocation of a special supply of national housing

00

The head of Jongno-gu Seoul Metropolitan Government

August 2008 8.20

September 24, 2008

1. The Defendant’s revocation of the revocation of the special supply of national housing made to the Plaintiff on December 27, 2007.

2. The costs of lawsuit are assessed against the defendant.

The order is as set forth in the text.

1. Details of the disposition;

A. The Plaintiff, as the Jongno-gu Seoul apartment located in Jongno-gu is incorporated into the park site under the urban planning project, acquired the qualification (occupant) for the sale (hereinafter referred to as the “sale right of this case”) of the apartment 1 bonds that is scheduled to be constructed within the housing site development zone of Songpa-gu Seoul Metropolitan City from the EP Corporation.

나 . A는 2005 . 12 . 경 원고로부터 이 사건 수분양권을 매수하였다고 주장하면서 서울 중앙지방법원 2005카단XXXXX호로 채무자를 원고 , 제3채무자를 에스에이치공사로 하 여 이 사건 수분양권에 관한 처분금지가처분 ( 이하 ' 이 사건 가처분 ' 이라 한다 ) 을 신청 하여 , 2005 . 12 . 19 . 가처분결정을 받았다 .

C. In the process of investigating real estate speculation and illegal trade in the right to move in by the National Tax Service, the head of Seodaemun-gu Tax Office notified the Plaintiff to the EP Corporation and the head of Seoul Special Metropolitan City Mayor on April 13, 2007 as he discovered the fact that A made a provisional disposition against the Plaintiff’s prohibition of disposal on the right to parcel out in this case. On April 20, 2007, the Seoul Special City Mayor notified the Defendant of the above matters.

D. On August 24, 2007, the Defendant notified the Plaintiff of the revocation of the special supply of national housing pursuant to Article 39 of the Housing Act (hereinafter referred to as the “the first decision of this case”), and requested the Plaintiff to withhold the said decision and submit explanatory materials on October 22, 2007, upon receiving the Plaintiff’s objection, filed an accusation against the Plaintiff as a violation of the Housing Act on November 8, 2007. After receiving the explanatory materials from the Plaintiff on November 22, 2007, the Defendant revoked the Plaintiff’s qualification for the special purchase of national housing on the ground that the Plaintiff violated Article 39 of the Housing Act by illegally selling the instant permit to the Plaintiff on December 27, 2007.

[Ground for Recognition] Unsatisfy, Gap evidence 1, Eul evidence 1-1 to 8, each entry

2. Whether the instant disposition is lawful

A. The parties’ assertion

1) The plaintiff's assertion

The Plaintiff did not transfer the sales right of this case to A, but merely borrowed A through A around November 4, 2001 KRW 30,000,000, and offered the sales right of this case as a security. Thus, the instant disposition is unlawful.

2) Defendant’s assertion

The plaintiff illegally reselled the sales right of this case to A, and even if the plaintiff offered the sales right of this case to the plaintiff's assertion for domestic affairs as security, it is included in the transfer under Article 39 of the Housing Act.

(b) Related statutes;

As shown in the attached Form.

(c) Facts of recognition;

The following facts can be acknowledged by integrating the following facts in the absence of dispute between the parties or by combining the above recognized evidences and the evidence of Nos. 2 to 12, Eul's evidence of No. 9-1 to 11, and witness A's witness's testimony with the whole purport of the pleadings.

1) On October 27, 2001, the Plaintiff received KRW 30,000,00 from A around October 27, 2001.

2) On December 2005, A filed an application for the instant provisional disposition with the Plaintiff, and submitted to the court a pre-sale agreement of the instant permit and an apartment sales note prepared with the Plaintiff as a document attached thereto. The said pre-sale agreement and the apartment sales note were written as of November 4, 2001, and the seller’s (contractor) column included the Plaintiff’s address as the Plaintiff’s address in the Eunpyeong-gu Seoul Metropolitan Government xx - x- xari-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-be.

3) From September 22, 1990 to August 8, 2005, the Plaintiff was registered as a resident in Eunpyeong-gu Seoul Metropolitan Government 000 dong 000,000. On August 8, 2005, the Plaintiff transferred to the above Seoul Eunpyeong-gu Seoul Metropolitan Government XX Dong - the PP loan class.

4) The Plaintiff paid A KRW 1,00,000 on June 22, 2007, KRW 11,000 on July 6, 2007, KRW 00, and KRW 00 on July 11, 2007, and filed an application for the cancellation of the instant provisional disposition on July 9, 2007.

5) The plaintiff's notification of April 13, 2007 to the Seoul Special Metropolitan City Mayor of the Seodaemun Tax Office, the suspect of illegal transfer, and the notification to the defendant on April 20, 2007 to the defendant in the Seoul Special Metropolitan City Mayor, and the first decision of August 24, 2007 to the plaintiff in the defendant in the Seoul Special Metropolitan City and notified the plaintiff or the defendant in the Seodaemun Tax Office or the defendant to the plaintiff in the first decision of August 24, 2007.

there is no evidence to prove that there was such evidence.

6 ) 원고의 주택법위반의 점에 관한 피고의 고발사건에 관하여 , 원고는 2008 . 2 . 14 . 서울서부지방검찰청 ( 2008 형제XXXX호 ) 에서 혐의없음 처분을 받았다 .

7) On September 2005, A, separate from the instant purchase right, was entered into a contract with the company that was seeking to purchase a national housing special supply apartment unit (occupant) for the removal and apartment located in Jung-gu Seoul Metropolitan Government (hereinafter referred to as the "sale right") and received a provisional disposition for prohibition of disposal in relation to the purchase right at issue, A entered into a contract for purchase of the purchase right at issue at the time, and A set up the "contract for purchase of the right to purchase the apartment unit," and set the price for the object of the purchase right at KRW 180,000,000 except for all expenses such as the purchase price of the apartment unit.

D. Determination

1) Whether the offer of security is included in the transfer under Article 39 of the Housing Act

Article 39(1) of the Housing Act provides that a person shall not transfer or take over any certificate or position to which he/she can be supplied with a house shall not include sale and purchase, gift, and all other acts accompanying the change of rights, but shall exclude the case of inheritance or mortgage. However, considering the following as a whole: (a) the purport of the Act and subordinate statutes prohibiting transfer or acquisition as above; (b) explicitly stating that transfer or acquisition is excluded from transfer; (c) the deed or position to which he/she can be supplied with a house cannot be the object of "mortgage under the Civil Act" under the Civil Act; and (d) the Civil Act and the provisional registration security, etc. are regarded as the premise of a security contract for return of the substitute, it is reasonable to view that it does not constitute a pre-sale concluded with a " pure purpose of providing a security" for transfer or acquisition prohibited under Article 39(1) of the Housing Act.

2) Whether the Plaintiff transferred the sales right of this case

In an appeal litigation to seek the revocation of an administrative disposition by asserting the illegality of the administrative disposition, the administrative agency that claims the revocation of the disposition has the burden of proving the legitimacy of the administrative agency's assertion.

However, the following circumstances revealed in the above facts. ① The plaintiff's entry into the contract for purchase and sale and apartment sales on November 4, 2001, which was submitted by the defendant at the time of the application for the disposal of this case, into the plaintiff's address on August 8, 2005. The above contract for purchase and sale and apartment sales and apartment sales were prepared around October 2001 at the time of the initial application for provisional disposition, not around 00, but around 000 won. The above disposal documents were prepared at the time of the first application for provisional disposition, not at the market price of 00,000 won. The defendant's allegation that the above disposal documents were prepared for the creation of security right, not at the 005,000 won. ② The right to purchase the apartment sales and sales can not be seen as a difference between the right to purchase and the right to purchase the apartment sales and the right to purchase 10,000 won.

3. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case is reasonable, and it is so decided as per Disposition.

Judge Han-man of the presiding judge

Judges Full completion

Judge Park Sung-sung

Related Acts and subordinate statutes

Housing Act

Article 39 (Prohibition against Disturbance of Supply Order)

(1) No person shall transfer or take over (referring to sale and purchase, donation, and all other acts accompanying the alteration of a right, but excluding inheritance or mortgage; hereafter the same shall apply in this Article) any deed or status falling under any of the following subparagraphs in order to acquire a supply of housing constructed and supplied under this Act, or to have another person acquire it, nor mediate them, and no person shall acquire a supply of deed, status or housing constructed and supplied under this Act, or have another person acquire it, in whatever way, by fraudulent or other unlawful means:

1. Status capable of acquiring a supply of housing under Article 32;

2. Redeemable housing bonds under Article 69;

3. Certificate of the occupants' savings under Article 75; and

4. Other deed or status capable of acquiring a supply of housing, which is prescribed by the Presidential Decree.

Enforcement Decree of the Housing Act

Article 43 (Certificates, etc. of which Transfer is Prohibited)

(1) The term “those as prescribed by the Presidential Decree” in Article 39 (1) 4 of the Act means those falling under any of the following subparagraphs:

1. A certificate of unauthorized building, a certificate of scheduled removal of a building, or a certificate of removal of a building issued by the head of a Si/Gun/Gu;

2. Status capable of being supplied with a house or confirmation of a person subject to the relocation measures due to the implementation of a public project;