Suwon District Court 201Kadan48230, 20122.20

Requests for cancellation of ownership transfer registration corresponding to illegal consideration

Since the ownership transfer registration that was completed on the ground of the instant sales contract that is null and void as a juristic act in anti-social order constitutes illegal consideration, the request for cancellation of ownership transfer registration cannot be accepted.

2013Na5065 Registration, etc. for cancellation of ownership

Appellant-Appellant

United StatesA

1. BB fisheries cooperatives;

2. Korea;

3. FF Saemaul Savings Depository;

Suwon District Court Decision 201Gadan48230 Decided February 20, 2013

October 11, 2013

November 22, 2013

1. The part against the defendant in the judgment of the first instance against the Republic of Korea is revoked, and the plaintiff's claim against the defendant is dismissed.

2. The Plaintiff’s appeal against Defendant BBB fisheries cooperatives and FF Saemaul Fund is dismissed in entirety.

3. The plaintiff's total litigation costs incurred between the plaintiff and the defendant Republic of Korea and each appeal costs incurred against defendant BB fisheries cooperatives and FF Saemaul Savings Depository shall be borne respectively by the plaintiff.

1. Purport of claim

With respect to the real estate listed in the attached list to the Plaintiff, Defendant BB fisheries cooperatives implement the procedure for registration of cancellation of the registration of the establishment of the neighboring establishment that was completed on October 15, 2010 by the Gu District Court, the Gu District Court, the Gu District Court, the riri registry, and the Defendant Republic of Korea performed the procedure for registration of cancellation of the registration of seizure that was completed on July 26, 201 by the Gui District Court, the Gui District Court, the 17585, and Defendant FF Saemaul Bank, the Gui District Court, the riri registry, and the Gui District Court, the Doi District Court, the 3523, the registration of cancellation of the ownership transfer that was completed on December 1

2. Purport of appeal

A. The plaintiff

Of the judgment of the court of first instance, the part regarding Defendant BB fisheries cooperatives and FF Saemaul Fund shall be revoked. With respect to the real estate listed in the attached list to the Plaintiff, Defendant BB fisheries cooperatives shall perform the procedure of cancellation registration of cancellation registration of the establishment registration of the neighboring establishment registration completed on October 15, 2010 by the Gu District Court registry office of Dong-ri, 20716, and Defendant FF Saemaul Fund shall express its intention of acceptance with respect to the registration of cancellation of the ownership transfer registration completed on December 11, 2007 by the Gui District Court of Dong-ri, ri, 3523.

B. Defendant Republic of Korea

Paragraph (1) shall apply.

1. Facts of recognition;

A. On May 8, 2006, the Joint Defendant EE District Housing Association of the first instance trial is a regional housing association organized with 29 members under the former Housing Act (wholly amended by Act No. 9405 of Feb. 3, 2009; hereinafter the same shall apply) and the former Enforcement Decree of the Housing Act (wholly amended by Presidential Decree No. 19935 of Mar. 16, 2007; hereinafter the same shall apply) for the purpose of constructing 88 units of apartment houses on the 04 OO-dong land at OO, 5444, and supplying them to its members, and obtained authorization for modification of the regional housing association with 28 members and 29 members from the association withdrawal of the KimCC on Jan. 3, 2007, with the authorization for establishment under the relevant Acts and subordinate statutes as boomD.

B. The Plaintiff owned real estate listed in the attached list (hereinafter “instant housing”). The instant housing was located within the project site of the EE District Housing Association, but the Plaintiff concluded a real estate sales contract (hereinafter “instant sales contract”) with the EE District Housing Association, with the intent to provide and sell the instant housing as a site for the project, around August 2007, when it decided to provide and sell the instant housing as a site for the project.

Contracts for Sale and Purchase of Real Estate (Agreement)

Contracts for Sale and Purchase of Real Estate (Agreement)

Article 1 (Purpose)

The purpose of this contract is to purchase the real estate owned by the EE District Housing Association and purchase all sites for the projects of the EE District Housing Association including the real estate owned by the plaintiff and build apartment houses.

Article 2 (Sales Price)

A) Land sale price to be paid by EE District Housing Association to the Plaintiff shall be set up and awarded a contract for sale of a newly-built apartment on the Plaintiff’s registration on the basis of the current market price. After the implementation of the project, it cannot be additionally charged to the Plaintiff even if the actual sale price increases due to the increase of construction cost and other expenses. The land and new-built apartment exchange balance shall be 21 square meters, and the remainder of 11 square meters shall be 32 square meters with the contribution as an OOO.

B) The sole household shall invest 21 square meters of the share of a site exchanged with substitute and the remainder of the land shall be paid by the EE District Housing Association to the Plaintiff.

C) The EE District Housing Association shall deliver to the Plaintiff for ownership display a new type of apartment sale contract in which the Plaintiff wishes. In this case, the Plaintiff shall cooperate with the Plaintiff in the preparation of the sale contract with reference to the documents, etc. notified by the EE District Housing Association on the date designated by the EE District Housing Association.

D) The EE District Housing Association shall pay the Plaintiff as free of interest by the time of moving the OOO to the time of moving, and the Plaintiff shall move after paying in cash to the EE District Housing Association after the completion of the new apartment.

E) The Plaintiff shall submit all of the documents joining the association when preparing a new apartment sales contract (as at the time of transfer of ownership).

Article 3 (Methods for Payment of Price)

The EE District Housing Association shall pay the purchase price under Article 2 to the Plaintiff in installments as follows:

Classification

Amount, details

Time of Payment

Jinay

Relocation Expenses

ECEC - OOOO

Single generation - OOOO

Contract deposit for resettlement;

Transfer of Ownership

Balance

The sales contract for new apartments (the remainder of relocation expenses)

Time of resettlement

Article 4 (Effect of Contract)

This contract shall take effect after the plaintiff and EE District Housing Association sign and seal it.

except that even if any of the following is made, the signature and seal of this contract shall be retroactively null and void at that time:

(A) where the EE Regional Housing Association waives the project implementation as it considers it difficult to conclude 100% contract for the entire real estate of the project within the period desired.

(b) Where the EE District Housing Association waives the implementation of the projects because of significant difficulties in the promotion of the EE District Housing Association’s projects in excess of the reasonable planned land purchase price for the promotion of the projects of the E District Housing Association monthly;

Article 6 (Transfer of Ownership of Land)

A) Upon the request of the EE District Housing Association after the conclusion of this contract, the Plaintiff shall prepare a written contract to the person designated by the EE District Housing Association and take necessary measures for the transfer of ownership.

B) Business losses of the EE District Housing Association due to the failure to provide documents on the transfer of ownership or the delay in the designation of the EE District Housing Association are responsible for the Plaintiff.

Article 18 (Other Matters)

F) This Agreement takes effect at the time of deposit of the down payment to the Plaintiff’s bank passbook.

C. According to the instant sales contract, the Plaintiff completed the registration of ownership transfer (hereinafter referred to as the “registration of ownership transfer”) to the EE District Housing Association on the ground of the sale on November 30, 2007 as of December 11, 2007, the old Government District Court registry office No. 3523 on the ground that the Plaintiff had completed the registration of ownership transfer (hereinafter referred to as the “instant registration of ownership”).

D. After that, on October 15, 2010, Defendant BB fisheries cooperatives (hereinafter referred to as “Defendant BB fisheries cooperatives”) loaned PO members to Park G (the president of the EE District Housing Association and the father and the principal of the actual association) as the debtor, and on the same day, in order to secure the loan, Defendant BB fisheries cooperatives (hereinafter referred to as “Defendant BB fisheries cooperatives”) completed the registration of creation of a neighboring mortgage (hereinafter referred to as the “registration of creation of a neighboring mortgage”) with respect to the real estate of this case as the maximum amount of debt No. 20716 of the old Government District Court’s receipt of the registration office of the Gu Government District Court, as the maximum amount of debt No. 20716, Jun. 7, 2011, Defendant FF Saemaul Cooperatives (hereinafter referred to as the “Defendant FB fisheries Cooperatives”) completed the registration of provisional attachment on the same date with the Government District Court’s ruling of provisional attachment No. 2011,506k on June 7, 2011.

E. Meanwhile, on July 25, 2006, the EE District Housing Association applied for approval of a project plan for housing construction at Guri-si, and on this issue, Guri-si requested several times to secure ownership for housing construction sites, but the EE District Housing Association failed to supplement it, and eventually rejected the application for approval of a project plan on February 13, 2008.

F. The EE District Housing Association: (a) purchased children or relatives of those who are not eligible for membership pursuant to Article 32 of the former Housing Act; (b) and Article 38(1) of the former Enforcement Decree of the Housing Act instead of those who actually joined the said housing association; and (c) its parents, etc., other than those who actually joined the said association, have been operating the said housing association; and (d) many other persons including the Plaintiff, etc., from the time of the establishment authorization of the said housing association, have joined the said housing association as its children or parents,

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6, Gap evidence 8, 9, Gap evidence 11-1, Gap evidence 12, 16, Eul evidence 8, Eul evidence 9-1, Eul evidence 9-2, and the purport of the whole pleadings

2. Determination on the cause of the claim

A. The validity of the instant sales contract

1) Relevant statutes

○ European Housing Act

Article 32 (Establishment, etc. of Housing Association)

(1) Where multiple constituent members intend to establish a housing association in order to acquire or remodel housing (excluding the cases of workplace housing associations under paragraph (3)), they shall obtain authorization from the head of the competent Si/Gun/Gu. The same shall also apply where they intend to change the authorized contents or dissolve a housing association.

(5) Necessary matters concerning the method and procedure for establishment of a housing association authorized under paragraph (1), the qualification standards for constituent members of a housing association, the operation and management of a housing association, etc., and necessary matters concerning the requirements and procedure for reporting three establishment of a workplace housing association under paragraph (3) and other matters shall

Article 97 (Penal Provisions)

Any person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than two years or by a fine not exceeding twenty million won:

7. A person who has selected constituent members of a district association in violation of the proviso of Article 32 (5);

○ Enforcement Decree of the Housing Act

Article 38 (Qualifications for Association Members)

(1) A person falling under any of the following subparagraphs shall be eligible for membership of a housing association under Article 32 of the Act:

1. In cases of members of a regional housing association, persons meeting the following requirements:

(a) A householder who has failed to own a house from the date of application for authorization to establish the association until the date of possible occupancy of the relevant association housing, or who has owned a house with an exclusive residing area not exceeding

[The head of a household (including the spouse of a householder who is not registered in the same resident registration card as the head of a household and the spouse of a household who forms the same household as the head of a household) who does not own a house or owns one bonds with an exclusive residential area of not more than 60 square meters among the household members, and the detailed criteria for whether to correspond to it shall be prescribed by the Ordinance of the Ministry of Construction

(b) A person who has resided in the area under subparagraph 9 (a) of Article 2 of the Act for not less than six months as of the date of applying for authorization to establish

2) The provisions of the Housing Act and the Enforcement Decree thereof concerning the qualifications of members of a housing association are mandatory provisions that cannot be excluded from the application by the parties’ will. Even if the provisions are not effective provisions, an act of violating the above provisions between the parties is null and void as a juristic act against social order (see, e.g., Supreme Court Decisions 93Da2926, Jul. 27, 1993; 92Da49027, Jul. 7, 1993). If a person who violates the mandatory provisions voluntarily claims the invalidation of the agreement on the ground that he/she is an exercise of a right contrary to the principle of good faith, it would result in realizing the result that he/she would be excluded from the mandatory provisions, and completely excluding the legislative intent, barring any special circumstances, such an assertion cannot be deemed to be contrary to the principle of good faith (see, e.g., Supreme Court Decision 2005Da64552, Nov. 29, 2007).

3) Comprehensively taking into account the aforementioned facts and the evidence revealed as above, the Plaintiff: (a) as the owner of the instant housing with an exclusive residential area exceeding 60 square meters, the Plaintiff is not entitled to become a partner of the EE District Housing Association, which is a regional housing association, pursuant to Article 32 of the former Housing Act and Article 38(1) of the former Enforcement Decree of the Housing Act; (b) the Plaintiff and EE District Housing Association were well aware of these circumstances at the time of the instant sales contract; (c) the Plaintiff was admitted by the general assembly of EE District Housing Association in order to avoid the foregoing statutory limitation; (c) the EE District Housing Association was not a member of the EE District Housing Association under its own name; (d) the Plaintiff was not a member of the EE District Housing Association; but (e) the Plaintiff, a seller of the instant housing contract concluded between the Plaintiff and EE District Housing Association, submitted all documents to which the Plaintiff joined the Association and agreed to purchase a new apartment unit to be sold to the members; and (e) the instant sales contract was in fact obtained the Plaintiff’s qualification of the E Regional Housing Association under Article 328(3).

Therefore, the instant sales contract was concluded in order for the Plaintiff to sell the instant house to the EE District Housing Association, and the EE District Housing Association concluded in return for the purpose of selling a new apartment to be supplied to the Plaintiff that can not become a partner to the Plaintiff, which is in violation of the above statutory provisions, which are mandatory laws, and the Plaintiff and EE District Housing Association concluded the instant sales contract in order to avoid such mandatory laws and regulations by mutual agreement with each other under the well-known circumstances. Thus, it is null and void as a juristic act of anti-social order.

B. Determination

Therefore, the registration of transfer of ownership in this case, which was completed in the future of the EE District Housing Association pursuant to the contract of this case, which is null and void against the mandatory law, shall be cancelled as it constitutes the registration of invalidation of cause. Barring any special circumstance, the registration of the establishment of the establishment of the ownership in this case under the name of the defendant BB Bank and the registration of the seizure in the name of the defendant Republic of Korea shall also be null and void as it was made based on the registration of the establishment of the ownership transfer in the name of the defendant BB Bank and the registration of the seizure in this case under the name of the defendant Republic of Korea. Thus, the defendant BB Bank has the obligation to implement the registration of cancellation of the registration of this case, and the defendant

3. Determination as to the defendants' defense

A. Summary of the defendants' defense

The Defendants asserted that the Plaintiff’s claim against the Defendants should be dismissed, on the ground that the instant transfer registration of ownership constitutes illegal consideration, which was completed on the ground of the instant sales contract null and void as a juristic act contrary to social order.

B. Determination

1) Article 746 of the Civil Act provides that a person who provided a job or a person who provided a service for an illegal cause may not claim the return of the benefit, provided that the person who provided the benefit cannot claim the return of the benefit, on the ground that the act of the cause is legally null and void, and that the person who provided the benefit cannot claim the return of unjust enrichment from the other party on the ground that the act of the cause is no longer effective, and that the ownership of the given benefit belongs to the party who received the benefit, and thus, the ownership of the given benefit belongs to the party who provided the benefit. The term "illegal cause" refers not only to the case where the act of the cause is contrary to good morals and other social order, but also to the case where the content of the right and duty which is the object of the juristic act is contrary to the good morals and other social order, even though the content itself is not contrary to the social order, and even if the motive of the juristic act indicated or known to the other party is contrary to social order (see, e.g., Supreme Court Decision 2007Do2511).

2) As seen earlier, the Plaintiff and EE District Housing Association concluded the instant sales contract with the intent to circumvent Article 32 of the former Housing Act and Article 38(1) of the former Enforcement Decree of the Housing Act, which are mandatory regulations, so the instant sales contract is null and void as a juristic act contrary to social order, and accordingly constitutes illegal consideration. Accordingly, the instant registration of transfer of ownership constitutes illegal consideration. Ultimately, the Plaintiff cannot assert that the instant EE District Housing Association has ownership to the EE District Housing Association on its own (However, the EE District Housing Association did not raise any objection in the first instance trial, but did not have to order the implementation of the procedure for registration of cancellation of transfer of ownership registration to E District Housing Association). As such, the Defendants cannot seek approval for cancellation of the registration of establishment of a neighboring mortgage and seizure on the premise that they are the owners of the instant housing, on the premise that they are the owners of the instant housing. Therefore, the aforementioned defense by the Defendants is reasonable.

4. Judgment on the plaintiff's second defense

A. Summary of the plaintiff's second defense

As to this, the Plaintiff asserts that even if the ownership transfer registration of this case constitutes illegal consideration, the Plaintiff only sold the instant real estate to EE area housing association with a pure purpose to prepare a house residing therein, and that there was no benefit therefrom. Thus, the illegality of EE area housing association is significant compared to the Plaintiff. Thus, the Plaintiff asserts that pursuant to the proviso of Article 746 of the Civil Act, the Plaintiff may seek cancellation of the ownership transfer registration of this case against EE area housing association, and that the Defendants may also seek a declaration of consent to the cancellation of the ownership transfer registration of this case and the cancellation of the ownership transfer registration of this case.

B. Determination

In the case of illegal consideration, in a case where the illegal cause exists only in the beneficiary, or where the illegality of the beneficiary is significantly larger than that of the provider, and thus, it would rather be contrary to the fairness and good faith principle that the provider does not grant the provider’s claim for return, the provider’s claim for return is allowed pursuant to the proviso of Article 746 of the Civil Act (see, e.g., Supreme Court Decisions 93Da12947, Dec. 10, 1993; 2004Da50426, Feb. 15, 2007).

However, the fact that the Plaintiff entered into the instant sales contract in collusion with the EE District Housing Association in order to avoid the violation of Article 32 of the former Housing Act and Article 38 (1) of the former Enforcement Decree of the same Act with the knowledge of the fact that the Plaintiff violated Article 32 of the former Housing Act and Article 38 (1) of the former Enforcement Decree of the same Act, which is a mandatory law, is not sufficient to recognize the illegality of the EE District Housing Association, which is the beneficiary, as the case where the illegality of the EE District Housing Association, which is the beneficiary, is significantly larger than that of the Plaintiff, and the Plaintiff

4. Conclusion

Therefore, the plaintiff's claim against the defendants shall be dismissed in its entirety due to the lack of any reason. Since the part of the judgment of the court of first instance against the defendant BB Suhyup and the credit cooperative is justified, the plaintiff's appeal against the above defendants is dismissed in its entirety as it is without merit. Since the part against the defendant in the judgment of the court of first instance against the defendant in the Republic of Korea is unfair with different conclusions, the part against the defendant in the judgment of first instance against the defendant in the judgment of the court of first instance is accepted, and the part against the defendant in the judgment of