The case holding that the Korea Housing Guarantee Co., Ltd., which provided a guarantee for the sale of a house on its own due to the default of a housing construction business operator, has no right to claim the remainder payment of the purchase price to the buyer, in case where the purchaser of the house was the successor and the performance of the sale was completed, and the Korea Housing Guarantee Co., Ltd., Ltd.,

The case holding that the Korea Housing Guarantee Co., Ltd., which provided a guarantee for the sale of a house on its own due to the default of a housing construction business operator, has no right to claim the balance of the buyers to pay the remainder.

Article 741 of the Civil Act, Article 43-5(1)4(a) of the former Enforcement Decree of the Housing Construction Promotion Act (amended by Presidential Decree No. 16283 of Apr. 30, 1999), Article 26 of the former Rules on Housing Supply (amended by Presidential Decree No. 70 of Jun. 29, 1996)

Plaintiff 1 and five others (Law Firm Young-soo, Attorneys Kim Chang-joon et al., Counsel for the plaintiff-appellant)

Korean Housing Guarantee Co., Ltd. (Attorney Park Young-chul, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2000Na2155 delivered on July 20, 2000

The judgment below is reversed and the case is remanded to Seoul High Court.

1. According to the reasoning of the judgment below, the court below rejected the remainder of the payment of the contract deposit and the remainder of the payment of the contract deposit within the limit of 72,354,406,00 won under the former Enforcement Decree of the Housing Construction Promotion Act (amended by Presidential Decree No. 16283 of Apr. 30, 1999; hereinafter referred to as the "former Enforcement Decree"), since the housing business mutual aid association was changed into the name as of June 3, 199 and the rights and obligations were comprehensively succeeded to by the defendant, and the same-sex comprehensive construction corporation (hereinafter referred to as "the defendant") and the same-sex comprehensive construction corporation (hereinafter referred to as "same-sex construction") are responsible for the performance of the contract deposit and the payment of the intermediate payment of this case, and it should be viewed that the defendant paid the remainder of the payment of the contract deposit within the limit of 73-5, 3406,00 won after deducting the remainder from the payment of the contract deposit and the payment of this case to the successor.

2. However, according to the records, where same-sex construction fails to sell the relevant house (including inspection for use; hereinafter the same shall apply) due to the bankruptcy of this case, the defendant becomes liable for the refund of down payment and intermediate payment paid or the obligation to perform the sale of the relevant house against the plaintiffs who are buyers (Article 43-5 (1) 4 (a) of the former Enforcement Decree of the Act), and the method of performing the guaranteed obligation is determined by the defendant (Article 5 of the terms and conditions of the house sale guarantee), and where the defendant performs the sale of the house (Article 6 (3) of the terms and conditions of the house sale guarantee), "the remaining payment" shall be paid to the successor constructor (Article 6 (3) of the terms and conditions of the house sale guarantee), and even if the remaining payment is stipulated as payment on the date of the designation of occupancy, it is not prohibited by the contract for sale in lots, and even if the remaining payment is limited to the sum of the down payment and intermediate payment subject to the refund, it cannot be viewed that the defendant's right to claim the payment of the remaining payment from the plaintiffs can not be paid.

Nevertheless, the court below rejected the plaintiffs' claim of unjust enrichment on the premise that the defendant who completed the execution of the sale of this case had the right to receive the remaining money from the plaintiffs, by misunderstanding the legal principles as to the guarantee of sale of housing, thereby affecting the conclusion of the judgment. The ground of appeal pointing this out is with merit.

3. 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 Song Jin-hun (Presiding Justice)