(영문) 서울고등법원 2011.12.15. 선고 2011누21555 판결

The court's reasoning on this part is as follows: "Rules on Housing Supply (amended by Ordinance No. 168 of the Ministry of Land, Transport and Maritime Affairs No. 168 of Sep. 28, 2009)" of the third third three pages of the judgment of the court of first instance shall be "Rules on Housing Supply (amended by Ordinance No. 225 of the Ministry of Land, Transport and Maritime Affairs No. 225 of Feb. 23, 2010; hereinafter referred to as "the Rules of this case")", and the third five pages shall not be selected."

If you search and inquire about the plaintiff's past winning facts on the Internet homepage of "B apartment C block on the plaintiff's winning house name," "B apartment C block on the date of winning," " September 15, 2009 on the date of winning," and " September 14, 2014 on the date of expiration," the screen shown in the division column as "limit on the upper limit of the upper limit of the upper limit of the selling price" on the division column.

In addition, Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act are as follows: “In the case of the first instance court decision, the submission of “in the form of an explanatory material, etc., the submission of an explanatory material” was only made by the presentation of materials, etc., which can prove the eligibility, and thus, it is identical to the reasoning of the first instance judgment except for the submission of explanatory material.”

2. Judgment as to the main claim

A. The plaintiff's assertion

"Where the owner of a house falling under any of the following items resides in the housing construction area and moves to another housing construction area" in Article 6 (3) 2 of the Rules of this case shall be deemed to include not only the case where he owns the relevant house at the time of residing in the relevant housing construction area but also the case where he resides in the relevant housing construction area and moves to another housing construction area, and thereafter he owns the relevant house. The instant house is a house with the area of 85 square meters or less, and for which 20 years have passed after January 1, 1953, the date of approval for use, and even if the Plaintiff owned the instant house, it shall be deemed to be a homeless person under Article 6 (3) 2 (a) and (b) of the Rules of this case.

Furthermore, the instant house was registered as a preservation of ownership on April 16, 2008 under the Act on Special Measures for the Registration, etc. of Real Estate Ownership (amended by Act No. 7500, May 26, 2005; hereinafter referred to as the "Special Measures Act"), while the Plaintiff’s father D, who was constructed on the Plaintiff’s first place of registration, died on June 29, 1989, and owned the instant house by inheritance. Thus, Article 6(3)2 of the Rules of this case provides that “if the ownership was acquired by inheritance, the heir shall be deemed to have resided in the decedent’s residence.”

(b) Related statutes;

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

C. Determination

(1) Article 6 (3) 2 of the Rules of this case (hereinafter referred to as "the main issue provision of this case") provides that "the owner of a house constructed in an area or administrative district (excluding Seoul Metropolitan area) of a non-urban area and falling under any of the following items shall be deemed to have not owned a house (in the case of acquisition by inheritance, the predecessor's resided therein shall be deemed to have resided therein) and moves to another housing construction area." (In light of the purport of the provision of this case and the provisions of subparagraph 7 of Article 2 of the Rules of this case, "the housing construction area" means the administrative district of the Special Metropolitan City, Metropolitan City, Si, or Gun where the house falling under any of the following items is located, and "other housing construction area" means the administrative district of another Special Metropolitan City, Metropolitan City, or Si/Gun, which means the administrative district of another Special Metropolitan City, Metropolitan City, or Si/Gun, for which 20 years or longer have passed after approval for use" under item (a) above, "the detached house under item (b)" shall not exceed 85 square meters, or the first spouse's of the Act on inheritance.

The main issue of this case is the legislative intent and purpose of the provision of this case, the history of the enactment and amendment, the meaning and contents of the language and text of this case, and the contents which consider that the housing does not own exceptionally despite the ownership of the house, and the exceptions generally need to be strictly interpreted. Since the substantial part of the population of Korea moves into a city or an area other than a city, not the city, with the focus on the household residing in the city or a corresponding area, the demand for the house lies in facilitating the supply of the house in response thereto. Accordingly, the housing policy has been constructed in an area other than an urban area or an administrative district (excluding the Seoul Metropolitan area) of a region other than an urban area, and as prescribed in the main issue of this case, it cannot be seen that the owner of the house in this case does not own the house in this case and only move to another area where the owner of the house in this case did not own the house in question as an area other than the urban area and did not own the house in question (excluding the Seoul Metropolitan area) but did not have the same meaning as socially or similar one in the case where the owner acquired the house in question.

(2) In this case, as seen earlier, the facts that the area of the instant house was 52.38 square meters and less than 85 square meters and constitutes a single house. However, in full view of the aforementioned facts and macroscopic evidence, the Plaintiff: (a) was living in the instant house from April 13, 1985 to Seoul; and (b) the Plaintiff’s mother was living in the instant house from January 6, 2004 to January 6, 2004; and (c) on December 17, 2007, the Plaintiff donated the instant house to the Plaintiff on December 17, 2007, and the Plaintiff completed registration of preservation of ownership on April 16, 2008 pursuant to the Act on Special Measures for the Ownership of Housing, and thereafter, the Plaintiff did not move to another housing construction area, and therefore, the Plaintiff’s assertion that the instant provision was not applied to other housing construction area after moving to the said housing.

In addition, the plaintiff argues that the plaintiff owned the house of this case by inheritance on June 29, 1989 and completed registration of preservation of ownership on April 16, 2008. However, each of the evidence Nos. 14 and 15 is insufficient to recognize that the plaintiff inherited the house of this case from DoD, and there is no other evidence. Rather, it is possible to consider the whole oral argument in the above macro evidence as a whole. In other words, the plaintiff made registration of preservation of ownership on April 16, 2008, attaching the three guarantor's guarantee that the plaintiff owned the house of this case and the written application for issuance of confirmation to Do head of Sung-gun, etc., and it is difficult to view the plaintiff's house of this case as the plaintiff's mother's transfer of the house of this case to the effect that "the plaintiff was actually owned by Do," and it is difficult to view the plaintiff's transfer of the house of this case as the plaintiff's transfer of the house of this case to Do head of Gun.

(3) Ultimately, the Plaintiff’s primary claim is without merit.

3. Whether the lawsuit on the conjunctive claim is legitimate.

A. The plaintiff's assertion

Although the Plaintiff did not have received an official document from the Defendant on the prohibition of re-performance, the Plaintiff asserts that the Plaintiff sought the revocation of the disposition by deeming the date September 15, 2009, which was the starting date of the prohibition period of re-performance, as the Plaintiff’s date of re-performance, to be the date of re-issuance, on September 15, 2009, when making an inquiry about the Plaintiff’s past winning facts on the Internet homepage of the Financial Settlement Agency.

B. Determination

The term "disposition, etc. subject to an administrative litigation" refers to the exercise of public authority or other equivalent administrative actions (Article 2 (1) of the Administrative Litigation Act) as an enforcement of law on specific facts conducted by an administrative agency. The disadvantages of the restriction on the re-election that the plaintiff is entitled to are merely pursuant to Article 23 (1) of the Rules of this case and cannot be deemed to be the exercise of public authority as an enforcement of law on specific facts, and further, it cannot be deemed that the defendant issued a disposition prohibiting re-election against the plaintiff on the ground that the screen showing the contents that the re-election is restricted in the case of making inquiries about the plaintiff on the Internet homepage of the Financial Settlement Agency. Thus, this part of the lawsuit by the plaintiff is unlawful.

3. Conclusion

Therefore, the plaintiff's main claim is dismissed as it is without merit, and the plaintiff's main claim is dismissed as it is unlawful. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted, and the judgment of the court of first instance is revoked and the plaintiff's main claim is dismissed, and it is so decided as per Disposition.