2014Da74711 Registration of transfer of ownership

United Nations Co., Ltd.

A Stock Company

Busan District Court Decision 2014Na2072 Decided October 10, 2014

April 9, 2015

The judgment of the court below is reversed, and the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

Article 18-2 (1) of the Housing Act provides that "a project operator who has obtained approval of a project plan pursuant to Article 16 (4) 1 may request the owner of a site for which he/she has failed to secure the title to use among the relevant housing construction sites to sell the site at the market price. In such cases, he/she shall hold a consultation for at least three months before he/she makes a request for sale with the owner of the site subject to a request for sale." Since consultation does not impose any restriction on the method or time limit of consultation, such consultation may be made even after filing a lawsuit claiming a right by exercising a claim for sale (see, e.g., Supreme Court Decision 201Da97068, Nov. 10, 201).

In addition, “consultations” refers to specific and substantial consultation, and when determining whether a project operator satisfies such requirements for consultation, the following circumstances should be comprehensively taken into account: (a) whether a project operator who has obtained approval for the housing construction project plan presented a sale price or a reasonable ground for its calculation; (b) whether a project operator made an effort to hold a consultation; and (c) the housing site owner presented an attitude to hold a consultation; and (d) the burden of proof for meeting such requirements is borne by the project operator (see, e.g., Supreme Court Decision 2011Da101315, May 9

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning, and determined that the plaintiff could not have made a substantial consultation with the defendant for not less than three months from the date of each trade cause stated in the main claim or preliminary claim from the time of the occurrence of the approval of the project plan of this case, since it is apparent that the plaintiff had not gone through a practical consultation for not less than three months with the defendant about the sale of the land of this case before filing the lawsuit of this case, and it is difficult to view that there was a substantial consultation about the sale of the land of this case other than the public room surrounding the propriety of the claim from the plaintiff and the defendant

However, we cannot accept the above judgment of the court below.

According to the reasoning of the judgment below and the evidence duly adopted and examined by the court below, ① on March 5, 2013, which was 100 after obtaining the approval of the project plan of this case, the plaintiff presented a sales contract and sales contract, the purchase price of which is 87,00,000, for only the defendant's representative director or the land of this case, respectively, and the defendant's representative director will 's 's 887,880,000 won', and ② on March 27, 2013, the plaintiff submitted two public contracts, which were 887,80,000 won, which were 10,000 won and the defendant's 200,000 won, which were 10,000 won and 30,000 won, which were 10,000 won and 10,000 won, which were 20,000 won and 13,000 won.

Examining these facts in light of the legal principles as seen earlier, the Plaintiff presented a specific sale price and a reasonable basis for its calculation, based on which the Plaintiff made efforts to consult with the Defendant, but it appears that the Defendant refused consultation on the grounds that there was no intention to sell, thereby failing to reach a proper agreement. Therefore, the Plaintiff may be deemed to have held specific and substantial consultation for at least three months prior to exercising the right to sell by serving a copy of the claim and the application form for change of the cause of the claim, which was dated November 19, 2013.

Nevertheless, the lower court rejected the Plaintiff’s claim by determining that it cannot be deemed that the Plaintiff had actually consulted with the Defendant for more than three months before exercising the right to demand sale. In so doing, the lower court erred by misapprehending the legal doctrine on the consultation as a requirement for exercising the right to demand sale under Article 18-2 of the Housing Act

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 Kim Yong-deok

Justices Go Young-young

Justices Kim In-young