[Defendant-Appellee] Plaintiff (Law Firm Gyeong, Attorney Doh-ho, Counsel for defendant-appellee)

Seoul High Court Decision 201Na1448 delivered on August 1, 2012

December 17, 2009

1. The Defendant Franchi Forest Housing Association shall receive KRW 15,335,00 from the Plaintiff at the same time, and at the same time, shall implement the procedure for registration of ownership transfer on October 20, 2007 with respect to the real estate indicated in the separate sheet to the Plaintiff.

2. The plaintiff's conjunctive claim against the defendants is dismissed in entirety.

3. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant Fiberal Zone Housing Association shall be borne by the Defendant Fiberal Zone Housing Association, and the part arising between the Plaintiff and the Defendant 2, 3, 4, 5, 6, 7 shall be borne by the Plaintiff.

The primary purport of claims is as stated in paragraph (1) of this Article.

Preliminary Claim: With respect to each of the 1/6 shares in the real estate listed in the separate sheet, the Defendant Franchising Housing Association shall receive from Defendant 2,3,4,5,6, and 7 the amount of KRW 2,55,83, respectively, and at the same time, the Defendant 2,3, 4, 5, 6, and 7 shall execute the procedure for registration of ownership transfer for the reason of the sale contract as of February 25, 2006, and Defendant 2,3,4, 5, 6, and 7 shall implement the procedure for registration of ownership transfer for the reason of the sale contract as of October 207 to the Plaintiff.

1. Facts of recognition;

A. The Nonparty was a member of the Defendant Fiberal Zone Housing Association (hereinafter “Defendant Association”).

B. On February 25, 2006, the Nonparty concluded a sales contract with the Defendant, setting the sales price of 341,050,000 won for one of the apartment units 32 square meters, which the Defendant supplied for KRW 405-12, 400,000 during Ansan-si.

C. After that, the Nonparty agreed on October 11, 2006 to reduce the sales price to KRW 306,375,000 on the apartment in the separate sheet (hereinafter “instant apartment”) through the trend of the same subparagraph with the Defendant association.

D. On October 20, 2007, the Plaintiff agreed to succeed to the status of a member of the Defendant Union with the Nonparty and reported the succession thereof to the Defendant Union. The Defendant Union recognized the Plaintiff as a member of the Defendant’s association and concluded a sales contract for the instant apartment as to the instant apartment (hereinafter “instant sales contract”). Meanwhile, the Nonparty submitted a written withdrawal notice to the Defendant Union on October 22, 2007 pursuant to the above succession agreement.

E. By September 1, 2007, the Nonparty deposited KRW 242,440,000 of the sales price, and KRW 8,000,00 of the agency service cost, out of the sales price, to the head of the Defendant association, before transferring the Plaintiff’s membership. The Nonparty deposited KRW 48,60,000 out of the sales price as the head of the Defendant association, after succeeding the Plaintiff’s membership status. On January 8, 2008, the Nonparty deposited KRW 48,60,000 out of

[Ground of recognition] Evidence Nos. 2-1 through 3, Evidence Nos. 3, Evidence Nos. 4-1, 2, 5, and 9, and the purport of the whole pleadings

2. The plaintiff's primary claim against the defendant union;

A. Determination on the cause of the claim

According to the above facts, the defendant union is obligated to implement the registration procedure for transfer of ownership on October 20, 2007 with respect to the apartment of this case to the plaintiff while receiving payment of the remaining sales price of KRW 15,335,00 ( KRW 306,375,000 - KRW 242,440,000 - KRW 48,600) from the plaintiff who succeeded to the status of the non-party's member, barring any special circumstances.

B. Determination on the assertion of the Defendant Union

(1) As to this, the Defendant Union asserts that the sales contract of this case is not in violation of the Housing Act and the Enforcement Decree of the Housing Act, and that it has no effect since it did not complete an establishment authorization modification of the authority approving the establishment of the association through the approval of the Defendant Union.

The apartment building of this case is located in the Seoul Metropolitan Area with the location of fugitive Dong during Ansan-si, and according to Article 41-2 (1) of the former Housing Act and Article 45-2 (1) of the former Enforcement Decree of the Housing Act, since the period of restriction on resale is from the date when a housing supply contract can be concluded for the first time through recruitment of occupants until the date of completion of the registration of ownership transfer for the relevant house (the building in question, where the registration of ownership transfer is made only for the building), the sales contract of this case was completed within the period of restriction on resale. However, according to the evidence evidence No. 1, the fact that the apartment of this case was cancelled on November 7, 2008 for the Ansan-si where the apartment of this case is located, and the apartment of this case is no longer prohibited resale according to the above speculative zone cancellation measure, the plaintiff can assert the legal relationship between the non-party who was the initial purchaser and the business proprietor (see Supreme Court Decision 95Da8485, Jul. 84, 1997).

On the other hand, as seen earlier, the Plaintiff obtained approval from the Defendant Union regarding the succession of membership, and even if the Plaintiff did not obtain approval for the change of membership, the new union member can exercise his right as a partner against the Plaintiff regardless of whether to grant approval (see Supreme Court Order 2002Da12, Mar. 11, 2002). Therefore, the above assertion by the Defendant Union is without merit.

(2) The Defendant Union asserts that the instant sales contract in this case is null and void on the ground that the Plaintiff did not succeed to the status of its members, but rather did not voluntarily purchase the unsold apartment house generated by the withdrawing members and entered into the instant sales contract, but the resolution of the general meeting of its members is required in doing such act of disposal.

The apartment house to be sold to the general public belongs to the collective ownership of all the members of the housing association. However, if the articles of association or regulations of the association regarding the management and disposal of the apartment house for voluntary sale which is the collective ownership, it shall be done by the resolution of the general meeting of the members of the association. Thus, even if it is the disposal of the property by the representative, it shall be null and void (see Supreme Court Decision 2000Da96 delivered on September 10, 2002). However, as seen above, the apartment house in this case is not the collective ownership apartment, but the apartment house is not the collective ownership of the members of the association, and since the plaintiff succeeded to the status of the members of the defendant association, the above assertion of the defendant association, which is based on the disposal of the collective ownership apartment house, is without any justifiable reason.

3. The plaintiff's conjunctive claim against the defendants

A. The plaintiff's assertion

If the plaintiff's membership status as the non-party is not succeeded to the plaintiff and the claim against the defendant association is dismissed, the non-party entered into a sales contract on February 25, 2006 with the defendant association for the apartment of this case. The plaintiff agreed on October 20, 2007 with the non-party for the transfer of ownership on the apartment of this case. The non-party died on July 29, 2009 and jointly succeeded to the property of the non-party, and thus, the non-party 2, 3, 4, 5, 6, and 7 as to each of the apartment of this case were first paid KRW 2,55,83 from the defendant 2, 3, 4, 5, 6, and 7, and at the same time, the defendant association claimed that the above defendants are liable for the transfer registration for the transfer registration for the ownership, the non-party 2, 3, 4, 5, 6, 707.

B. Determination

Since the plaintiff succeeded to the status of the non-party member of the defendant association, the non-party is seeking the implementation of the registration procedure for transfer of ownership of the apartment of this case that the non-party purchased in lots. If the non-party's status of the non-party member is rejected, and the non-party's claim is not succeeded to the plaintiff, the execution of the registration procedure for transfer of ownership between the non-party and the defendant association is sought in sequence due to the contract for sale of the apartment of this case and the agreement on transfer of ownership of the apartment of this case between the plaintiff and the non-party. Thus, it is recognized that the two claims affect the other claim's reasoning for judgment as to one claim, and the process of judgment as to each claim is necessarily mutually combined. Thus, the lawsuit of this case constitutes a preliminary co-litigation

Therefore, as long as the Plaintiff’s primary claim against the Defendant Union is accepted, there is no reason to view the conjunctive claim against the Defendants, which is legally incompatible.

4. Conclusion

Therefore, the plaintiff's primary claim against the defendant union is justified, and each conjunctive claim against the defendants is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Shin Byung-chan