In a case where a housing constructor newly built and acquired a house for sale, whether the house should be excluded in the judgment of the “non-resident housing owner” under Article 2(7) of the Rules on Housing Supply.

The determination of whether a person is a homeless householder as referred to in Article 2 subparag. 7 of the Regulations on Housing Supply, which provides for the terms, methods, procedures, etc. of the supply of a house under Article 32 of the Housing Construction Promotion Act, shall be made on the basis of an owner on the public register unless the cause is null and void or there are other special circumstances. Even if a title holder who externally acquired a complete ownership is completed for the purpose of title trust, bonds security, or execution thereof, he shall not be deemed a homeless householder, and even if a housing constructor newly built and acquired a house for the purpose of sale, it

Article 32 of the former Housing Construction Promotion Act, Article 2 subparag. 7 of the former Rules on Housing Supply, Article 13(2) of the former Rules on Housing Supply

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo and 2 others, Counsel for plaintiff-appellant) and 1 other (Law Firm Domin, Counsel for plaintiff-appellant)

Plaintiff

[Defendant-Appellant] Plaintiff 1 et al., Counsel for defendant-appellant-appellant

Seoul Civil District Court Decision 93Na47867 delivered on March 17, 1994

The judgment of the court below is reversed and the case is remanded to the Panel Division of the Seoul Civil Procedure District Court.

We examine the grounds of appeal.

Determination of whether a house is a homeless house owner as referred to in Article 2 subparagraph 7 of the Regulations on Housing Supply, which provides for the conditions, methods, and procedures for the supply of a house under the provisions of Article 32 of the Housing Construction Promotion Act, shall be made based on the owner on the public record unless the cause is invalid or there are other special circumstances. Even if the title of the pertinent house, which externally acquired a complete ownership, is completed for the purpose of title trust, bond security, or execution thereof, it shall not be deemed to be a homeless house owner (see, e.g., Supreme Court Decisions 92Da49027, Jul. 27, 1993; 93Da61574, Feb. 22, 1994; 93Do2755, Feb. 25, 1994).

According to the facts established by the court below, the plaintiff was a person with no house for at least five years as stipulated in the proviso of Article 13(2) of the Rules on Housing Supply (amended by the Ordinance of the Ministry of Construction and Transportation No. 537 of Sep. 1, 1993), and the defendant applied for preferential supply of the apartment of this case under construction in the old Si/Gunsi Housing Site Development Zone. The non-party, the husband of the plaintiff, as a housing developer, newly constructed a multi-household house for six households on the ground of Gyeyang-si ( Address omitted) around January 1, 198, and completed registration of preservation of ownership in his own name for each household (the non-party, as to four households, established a multi-family mortgage as the debtor and completed registration of ownership transfer by October 11, 198).

In light of the above facts, the plaintiff's non-party who is his spouse at the time of filing an application for supply of the apartment of this case cannot be deemed as having owned another house as above, and thus, the registration in the name of the non-party with respect to the above multi-household house shall not be deemed as having been a non-household for a period of more than five years. Thus, the court below erred in the misapprehension of legal principles as to the criteria for determining non-household households under the Rules on Housing Supply, on the ground that the non-party's registration in the name of the non-party with respect to the above multi-household house is a formal registration that the person who is entitled to exercise the actual ownership

Therefore, without examining the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Don-hee (Presiding Justice)