2014Da39602 Implementation of procedures for ownership transfer registration

A Stock Company

[Plaintiff-Appellant] LbnB Partners

Attorney Lee In-bok, Justice Lee In-bok, Justice Choi In-bok, Justice Choi In-bok, Justice Choi Jin-hee, Justice Park Young-hee, Justice Park Jong-hee

1. B

2. C

3. D;

4. E.

5. F;

6. G.

Defendants LLC et al. (LLC)

Attorney Hong Sung-hoon, Counsel for the defendant-appellant

Gwangju District Court Decision 2012Na14568 Decided May 23, 2014

May 28, 2015

The judgment of the court below is reversed, and the case is remanded to the Gwangju District Court Panel Division.

The grounds of appeal are examined.

Article 18-2(1) of the former Housing Act (amended by Act No. 11243, Jan. 26, 2012; hereinafter “Housing Act”) provides that “A project operator who has obtained approval of a project plan pursuant to Article 16(2)1 may request the owner of a site (including buildings; hereafter the same shall apply in this Article and Article 18-3) who has failed to secure title to use the site among the relevant housing construction sites according to the following subparagraphs to sell the site at the market price. In such cases, a project operator shall make a request for consultation for the sale of the site at the market price for at least three months before filing a request for sale.” Since such consultation does not impose any restriction on the method or time for consultation, such consultation is no longer made after claiming a right by exercising the right to demand sale (see, e.g., Supreme Court Decision 2010Da97068, Nov. 10, 2011).

Various circumstances should be comprehensively considered (see, e.g., Supreme Court Decision 2011Da101315, 101322, May 9, 2013).

According to the reasoning of the lower judgment, the lower court determined that it is difficult to view that the Plaintiff had made a specific and substantial prior consultation with the Defendants for not less than three months prior to exercising the right to demand sale by serving the notice of the purport and reason for modification of the claim on July 20, 2012.

However, the above determination by the court below is difficult to accept in light of the legal principles as seen earlier.

According to the records, the Plaintiff filed a lawsuit against the Defendants on January 19, 2012, 16 days after obtaining approval of the instant business. The Plaintiff’s claim for sale under Article 18-2 of the Housing Act was to be purchased at KRW 58,082,943 each of the instant real estate on or after 200,000. The Defendants asserted that they failed to meet the requirements for the claim for sale, such as the Plaintiff’s failure to negotiate for sale for more than 3 months, and that development gains should be included in redemption at KRW 10,00,000. The Plaintiff asserted that the transfer of ownership should be made at KRW 50,000,000,000,000,0000 won and KRW 5,000,000,000,000,000,000 won and KRW 20,000,000,000,000,000.

Examining these facts in light of the legal principles as seen earlier, the Plaintiff presented to the Defendants a reasonable basis for the specific sale price and its calculation through a complaint, a preparatory document dated April 13, 2012, and the result of the market price appraisal of the first instance court. Based on this, the Plaintiff endeavored to proceed with the agreement with the Defendants. However, it appears that the Defendants did not properly reach an agreement on the wind that they refuse consultation while collecting a sale price much higher than the market price. As such, the Plaintiff may be deemed to have made a specific and substantial consultation for three months prior to the exercise of the right to demand sale by serving a copy of the claim and the application form for change of the cause of the claim, on July 20, 2012.

Nevertheless, the lower court rejected the Plaintiff’s claim by determining that it cannot be deemed that the Plaintiff had actually consulted with the Defendants for more than three months before exercising the right to demand sale. In so doing, the lower court erred by misapprehending the legal doctrine on the consultation as a requirement for exercising the right to demand sale under Article 18-2 of the Housing Act,

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok

Justices Lee In-bok

Justices Go Young-young

Justices Kim In-young