2015Na56895 Requests for the implementation of change of title

A

B

Busan District Court Decision 2015Da43243 Decided November 18, 2015

June 30, 2016

July 21, 2016

1. The part of the judgment of the first instance against the plaintiff shall be revoked.

2. On September 25, 2009, the Defendant shall implement the procedure for filing an application for consent to resale with the Korea Land and Housing Corporation on the sale contract between Gangseo-gu Busan Metropolitan Government E-gi 267m (a lot number D, a designated-use shop) and the Plaintiff for the change of the name of the buyer on the grounds of the sale contract.

3. All costs of the lawsuit shall be borne by the defendant.

1. The primary purport of the claim and appeal

As stated in the Disposition 1 and 2 (the plaintiff sought implementation of the procedure for change in the name of the buyer around the first instance court, implementation of the procedure for the first instance court's consent of resale, and implementation of the procedure for change in the name of the buyer on the condition of consent of resale, but only implementation of the procedure for the first instance court's consent of resale was reduced, and accordingly, the purport of appeal was reduced accordingly).

2. Preliminary purport of claim

The defendant shall pay the plaintiff 82,578,600 won with 5% interest per annum from March 31, 2015 to November 2, 2015 and 15% interest per annum from the next day to the day of complete payment.

1. Facts of recognition;

The following facts are not disputed between the parties, or acknowledged in accordance with the purport of Gap evidence Nos. 1 through 7, and 10 as a whole.

A. From around 2003, the Korea Land and Housing Corporation implemented a district development project for F members of Gangseo-gu Busan Metropolitan Government (hereinafter “instant development project”), and the housing owned by the defendant was included in the project area.

B. On September 25, 2009, the Plaintiff concluded a sales contract with the Defendant for the right to sell housing sites (hereinafter referred to as the “right to sell housing sites”) with respect to the housing sites to be supplied when the Defendant is selected as a person eligible for supply of the unsettled housing sites from the Korea Land and Housing Corporation in the future. The Plaintiff paid the purchase price in full to the Defendant around that time.

C. On February 16, 2015, the Defendant was selected as a person to be supplied with a multi-resident housing site and entered into a sales contract with the Korea Land Corporation and the land specified in Paragraph 2 of the Disposition (hereinafter “instant real estate”) with the purchase price of KRW 225,786,00 on March 9, 2015 (hereinafter “instant sales contract”).

D. On March 5, 2015, the Plaintiff transferred KRW 22,578,600 to the Korea Land and Housing Corporation under the name of the Defendant’s name as the contract bond set in the instant sales contract.

2. The assertion and judgment

A. The parties' assertion

(1) The plaintiff's assertion

In the first place, according to the Housing Site Development Promotion Act and the Enforcement Decree thereof, the right to sell housing construction sites supplied according to the execution of relocation measures may be reselled with the consent of the project implementer. Even if the project implementer did not consent to the sale contract of this case, the above contract is in a state of dynamic invalidation, and the defendant is obligated to implement the procedure for applying for the consent to resell so that the consent of the Korea Land and Housing Corporation is

Preliminaryly, if the sales contract of this case is null and void on a conclusive basis, the Defendant is obligated to pay the Plaintiff the total amount of KRW 82,578,600, and interest and delay damages for the sales contract of this case, since the Defendant obtained unjust enrichment equivalent to KRW 22,578,600, which the Plaintiff paid on behalf of the Plaintiff, as the sales contract of this case was made.

(2) The defendant's assertion

The sales contract of the instant sales right was concluded before the Defendant was selected as a person to be supplied with the housing site of migrants and was concluded prior to the occurrence of the sales right. At that time, the resale of the sales right was not possible, and there was no individual and specific prior consent of the Korea Land and Housing Corporation regarding the said sale. Therefore, the sales contract of the instant sales right is null

B. Relevant statutes

A person shall be appointed.

C. Determination

(1) We examine whether the sales contract of this case was null and void since it was concluded before the time of resale.

The subject matter of the sale contract of this case is the right of sale to the housing site of migrants to be supplied by the Defendant from the Korea Land and Housing Corporation as the housing owned by the Defendant is incorporated into the development project area of this case. It is reasonable to view that the above sale contract is the condition or content of performing the contract that the sale contract of this case would normally take place in the future. However, since the Korea Land and Housing Corporation was fulfilled the condition by designating the Defendant as the subject of supply of the housing site of migrants, the sale contract of this case

In addition, Article 19-2(1) of the Housing Site Development Promotion Act prohibits the “person who is supplied with a housing site” from resale before the registration of ownership transfer, but the instant real estate is a housing construction site supplied in accordance with the implementation of relocation measures, and may not be subject to the provisions on restriction on resale subject to the consent of the project implementer under the proviso to the same paragraph and Article 13-3 subparag. 1 of Enforcement Decree of the Housing Site Development Promotion Act. In particular, insofar as resale is permitted only to the case of a person who is supplied with a housing site for the first time from the project implementer, the said special exception does not constitute the right to purchase the housing site before the transfer of ownership, and thus, it does not constitute a limitation to the possibility of resale

(2) We examine whether the sales contract of this case was invalid as it was concluded without the consent of the Korea Land and Housing Corporation.

The main text of Article 19-2(1) of the Housing Site Development Promotion Act prohibits, in principle, the resale prior to the registration of transfer of ownership on a housing site created under the above Act, and prescribing that the implementer’s consent should be obtained by exceptionally allowing the resale under the proviso of the same Article and Article 13-3 of the Enforcement Decree of the same Act is necessary to minimize the side effects arising from the restriction of fundamental rights prescribed by the Constitution, etc. by providing the original purpose of supplying the housing site to the persons who lose their place of residence in the national policy by providing a new place of residence to those who lose their place of residence, but to supply the housing site to the

This is because it is necessary for the implementer to take part in the change of the name or verify and examine the requirements for the sale of the housing site. If the application of the provision on the restriction on resale before the supply of the housing site is excluded and no restriction is imposed, the act of resale before the supply of the housing site may be abused to avoid the application of the provision on the restriction on resale of the housing site. Therefore, the legislative purpose of the Housing Site Development Promotion Act, such as the prevention of real estate speculation and the protection of the persons subject to the restriction on resale, which is to protect the persons subject to the restriction on resale, shall be applied not only to the resale conducted after

Therefore, in order for the sales contract of this case to be valid, the consent of the operator should be obtained, and it is examined whether the resale contract of this case has no validity until the consent of the operator is obtained.

① Interpretation that a contract under the premise of the consent of a project executor should be null and void even if the contract is based on the premise of the consent of the project executor, and it is very unreasonable in light of the reality of transaction. Transactions such as sale and purchase of real estate in this case are formed by the agreement between the seller and the purchaser in accordance with the market principle formed by transaction at the same point as supply and demand. After the agreement between the sale and purchase, it is possible to apply for the consent of the project executor. Even if such agreement is reached, it is only impossible to demand the other party to whom the agreement will be agreed before and after the agreement is reached. The consent to resale of a housing site by the Korea Land and Housing Corporation is made between the buyer and transferee, and the Korea Land and Housing Corporation. In this case, the Korea Land and Housing Corporation requires a seal of approval in accordance with the Real Estate Registration Special Measures Act (Evidence 3). However, according to Articles 4 and 3(1) of the Real Estate Registration Special Measures Act, the agreement between the parties to the contract, the purpose of the contract, the date of the contract, and the subject-matter.

② If the resale contract is deemed null and void before the consent of the implementer, the agreement between the parties is merely merely a prior consultation at the preparation stage for the conclusion of the contract and a new contract after the consent. However, since the agreement between the parties to the relevant housing site and the proceeds thereof is not different from the actual contents of the resale contract, the conclusion of the resale contract before the consent is recognized, but if the agreement can achieve the objective of preventing speculative transactions by failing to take place until the consent to enter into force of the contract, requesting the parties to the contract again to enter into the resale contract after the consent is made through unnecessary double procedures. In addition, even if one party refuses the contract after the consent, it may result in adverse effects that undermine the trust and good faith of the transaction order because it is not the way to seek the implementation of the initial agreement. As such, the interpretation that only can expect the seller's good faith cooperation and that no legal protection measure can be taken is contrary to the purport of the relevant provision allowing resale.

③ Article 2 of the sales contract of the instant sales right provides that “The seller and the buyer shall actively cooperate in all procedures in the exercise of their rights, and the seller shall deliver all necessary documents until the transfer registration of ownership and deliver the real estate to the buyer by actively cooperating with the registration procedure.” Thus, the Plaintiff and the Defendant planned to cooperate with the Korea Land and Housing Corporation in the application procedure for consent to resale of the said sales contract.

④ The main text of Article 19-2(1) of the Housing Site Development Promotion Act prohibits, in principle, the resale prior to the transfer registration of ownership on a housing site created under the aforementioned Act. Meanwhile, the proviso of the said Act and Article 13-3 subparag. 1 of the Enforcement Decree thereof provide that the same shall not apply to migrants’ housing site, providing land, etc. necessary for the implementation of public projects, thereby providing alternative housing sites to those migrants who lose their base of livelihood as part of living compensation, but generally taking into account the fact that the development of alternative housing site requires considerable time, thereby enabling them to resell the housing site to be supplied in the future even before the transfer registration of ownership and allowing the end users to be supplied with the housing site. However, if the resale becomes null and void before obtaining the consent of the implementor, migrantss are unable to resell the right to sell the housing site, and thus are placed in an unstable position for a considerable period of time, and this would distort the purport of the law that permits resale as special cases.

In full view of such various circumstances, a resale contract, such as the sale of the instant parcelling-out right, takes effect only with the consent of the implementer, and is null and void as well as with the in personam effect, before obtaining the consent, and is a contract that excludes or destroys the consent from the beginning. However, in the case of a resale contract premised on obtaining the consent, there is no room to deem such contract as null and void with the final invalidation. However, in the case of a resale contract based on the premise that the consent would otherwise be obtained, it does not differ from the case of conclusive invalidation that the validity of the resale contract is not taken place as a complete juristic act until obtaining the consent. Once obtaining the consent, it is reasonable to view that the resale contract is retroactively valid, and it is deemed that there is a state of dynamic invalidation finalized when obtaining the consent or making it impossible to obtain the consent (see, e.g., Supreme Court Decisions 95Nu8966, Jan. 26, 196; 90Da1243, Jan. 12, 1991).

Therefore, in a case where a resale contract is concluded on a re-sale housing site (including the case where a re-sale housing site is confirmed after a contract for the right of sale was concluded) between the parties who concluded a contract, both parties to a contract are obligated to jointly apply for the consent of the implementor, and both parties to the contract are obliged to seek the performance of their duty of cooperation by litigation against the parties who did not cooperate in the procedure for filing an application for consent by violating such duty (see, e.g., Supreme Court en banc Decision 90Da12243, Dec. 24, 191).

(3) Sub-decisions

Therefore, the Defendant is obligated to implement the procedure for applying for resale agreement to change the name of the buyer of the sales contract for the instant real estate in accordance with the sales contract for the instant real estate (the Plaintiff’s primary assertion is accepted, and thus the conjunctive assertion is not judged separately).

3. Conclusion

If so, the plaintiff's primary claim is reasonable, and the judgment of the court of first instance is unfair, so the plaintiff's appeal is accepted and the judgment of the court of first instance is revoked and the plaintiff's primary claim is accepted.

The presiding judge and the highest judge;

Judges Yang Sung-won

Judges Senior Superintendent;