[1] In a case where a creditor of a housing developer concludes a sales contract for a house sold by the said business operator as a payment for the bond, whether the Korea Housing Guarantee Co., Ltd. under the Housing Construction Promotion Act bears its guarantee responsibility (negative)

[2] The case holding that the Korea Housing Guarantee Co., Ltd. does not bear a guarantee liability for the sale of the housing since the housing construction business operator entered into a housing sale contract with the creditor's relative and relative for the payment of the debt to the creditor and constitutes an evasion of the law to escape from the form of payment

[1] The purpose of the Housing Sale Guarantee System of Korea Housing Guarantee Corporation (former Housing Project Mutual Aid Association) under the Housing Construction Promotion Act and the Enforcement Decree of the same Act is to establish a sales contract in accordance with the procedures and methods stipulated in the Rules on Housing Supply established under this Act, and to protect the buyers in good faith who have paid the sales price. Therefore, it is reasonable to deem that the Korea Housing Guarantee Corporation, barring special circumstances, bears the responsibility to refund the sales price paid by a housing construction business operator or to guarantee the sale price of a house on the premise that the buyers who have purchased a house from the housing construction business operator pay the down payment and the intermediate payment, barring any special circumstance, on the premise that the buyers who have purchased the house from the housing operator pay the down payment and the intermediate payment. In the event that a creditor of the housing construction business operator has agreed to cover the payment of the sales price of the remaining house with the existing bonds, the Korea Housing Guarantee Corporation, which has provided the Housing Sale Guarantee Co., Ltd., which has concluded

[2] The case holding that since a housing construction business operator entered into a housing sale contract with a creditor's relative and relative for the payment of debt to the creditor, it constitutes an evasion of the law to escape from the form of payment in kind, the Korean Housing Guarantee Co., Ltd. is not liable to guarantee the sale in lots

[1] Article 428 of the Civil Code, Article 47-7 (1) 1 of the former Housing Construction Promotion Act (amended by Act No. 5908 of Feb. 8, 199), Article 43-5 (1) 4 of the former Enforcement Decree of the Housing Construction Promotion Act (amended by Presidential Decree No. 16283 of Apr. 30, 199) / [2] Article 428 of the Civil Code, Article 47-7 (1) 1 of the former Housing Construction Promotion Act (amended by Act No. 5908 of Feb. 8, 199), Article 43-5 (1) 4 of the former Enforcement Decree of the Housing Construction Promotion Act (amended by Presidential Decree No. 16283 of Apr. 30, 199) (see current Article 43-5 (1) 1 of the former Enforcement Decree)

[1] Supreme Court Decision 97Da54406 delivered on March 23, 199 (Gong1999Sang, 725) Supreme Court Decision 98Da26477 delivered on May 28, 199 (Gong1999Ha, 1271), Supreme Court Decision 98Da42301 delivered on December 10, 199, Supreme Court Decision 2000Da18790 Delivered on May 8, 2001 (Gong201Ha, 1332)

Plaintiff 1 and eight others

Korea Housing Guarantee Co., Ltd. (Attorney Kim Byung-jin, Counsel for the defendant-appellant)

Busan High Court Decision 99Na12598 delivered on December 8, 2000

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

We examine the grounds of appeal.

1. Summary of the judgment of the court below

A. According to the reasoning of the judgment below, the court below acknowledged the following facts based on the evidence adopted.

When it is difficult to raise funds because the first apartment in this case was low from the actual result of the apartment in this case, and it was difficult to sell the apartment in this case, it borrowed KRW 1.5 billion from the non-party on January 24, 1995, but it was not proper to sell the apartment in this case even thereafter, and it was a policy to sell the apartment unsold in lots by a private contract, not through open recruitment procedure, in the latter half of 1995, and it was suggested that the non-party supplied the apartment unsold in lots to the non-party, but the non-party would use the apartment unsold in lots in this case by directly receiving the payment from the buyer.

Accordingly, the non-party stated that he would purchase the apartment of this case at a discount of the amount equivalent to 10% from the sale price originally determined by his relative, relative, and branch, and that he would purchase the apartment of this case. The non-party agreed with the plaintiff 4, 9, 5, and the plaintiff 7 and 8, who are the employees of the company he managed, who are the plaintiff 3, former (former) employees, and the plaintiff 4, former (former) employees. The plaintiffs entered into a sales contract with the plaintiff on January 23, 1996, one household (exclusive use area of 84.79mmm2) among the apartment of this case, as shown in the attached Table 1 of the judgment of the court below, to purchase the apartment of this case at KRW 9,373,00.

When entering into the initial contract in the sale contract, electric power resource construction pays the intermediate payment of KRW 19.8 million at the time of the contract, July 15, 195, and KRW 15,000,000,000 at the time of the initial contract in the sale contract, and KRW 15,000,000 for the intermediate payment on January 15, 196, and April 15, 1996, and July 15, 196 of the same year, and deleted the payment column for the remainder to be paid on the designated date of occupancy, and entered the Plaintiffs into the deposit sheet to the Plaintiffs that the full amount of the price was received at the time of the sale contract, and the Plaintiffs paid each part of the apartment price to the Nonparty before and after the sale contract.

B. Based on such factual basis, the lower court determined that: (a) the Plaintiffs were to purchase the instant apartment as the price discounted by the Nonparty’s recommendation for the repayment of the claim; (b) while electric power resource construction was disposed of by offsetting the purchase price from the Nonparty’s claim; (c) the Plaintiffs entered into a sales contract directly with electric power resource construction; (d) the Plaintiffs paid the amount equivalent to the apartment price to the Nonparty as agreed upon between the Nonparty and electric power resource construction; and (e) the Plaintiffs were to purchase the instant apartment by means of a negotiated contract from electric power resource construction; and (e) the Plaintiffs’ purchase of the instant apartment by means of a private contract is based on the first-come, first-come, first-come, first-served method under Article 8(1) proviso (wholly amended by Ordinance of the Ministry of Construction and Transportation (wholly amended by Ordinance of February 11, 1995) of the former Housing Supply Act; and (e) it does not constitute an evasion of law to escape from the form of payment in kind or payment in kind to the Nonparty; and accordingly, the Plaintiffs are liable to pay the Defendant.

2. The judgment of this Court

A. As to the first ground for appeal

In light of the records, it is reasonable that the court below recognized that the plaintiffs paid part of the purchase price to the non-party as shown in the attached Table 1 of the judgment below before and after the conclusion of the sale contract with the whole construction company, and there is no error of law by misconceptioning the facts due to a violation of the rules of evidence or an incomplete hearing.

The grounds of appeal pointing out this issue are rejected.

B. Regarding ground of appeal No. 2

The purpose of the Housing Construction Promotion Act and the Enforcement Decree of the same Act is to establish a sales contract in accordance with the procedures and methods prescribed by the Rules on Housing Supply established under this Act, and protect the bona fide buyers who have paid the sales price. Therefore, it is reasonable to deem that the defendant company which provided the housing sales guarantee bears the responsibility to refund the sales price paid by the buyers who purchase the house from the housing construction business operator or to guarantee the sale price of the house on the premise that they pay the down payment and the intermediate payment, barring any special circumstances. In the event that the creditor of the housing construction business operator concludes the sales contract on the remaining house without the sale price by open recruitment as a means to secure or recover the claim, and a creditor of the housing construction business operator agrees to appropriate the payment of the sales price for the remaining house with the existing bond, the defendant company which provided the housing sales guarantee shall not be held liable to refund the amount equivalent to the sale price appropriated with the existing bond or to guarantee the sale price (see, e.g., Supreme Court Decision 200Da18790, May 8, 201).

In light of the above legal principles, we examine whether the defendant is liable to guarantee the sale contract and the payment of the sale price to the plaintiffs under the sale guarantee contract.

First of all, as decided by the court below, the plaintiffs' purchase of the apartment of this case by means of a free contract from electric power resource construction can be deemed to be in accordance with the procedures and methods prescribed in the Housing Supply Rules. Electric power resource construction transfers a claim for the sale price under the sale contract to the non-party, in lieu of the repayment of the loan obligation to the non-party, and accordingly, the plaintiffs paid the purchase price to the non-party. Accordingly, in order for the non-party to pay the loan to the non-party, it cannot be deemed that the construction of electric power plant of this case paid the non

However, the reason why the plaintiffs paid the sale price is not in accordance with the procedure and method prescribed in the Rules on Housing Supply. In addition, where the buyer pays the sale price in advance in the standardized sale contract used by the housing construction business operator for the conclusion of the sale contract, there is a provision that discounts interim interest based on the number of advance payment days, and it does not constitute a case where the buyer makes advance payment in lump sum by trust in concluding the sale contract with the housing construction business operator (see Supreme Court Decision 98Da26477 delivered on May 28, 199, etc.).

In addition, in full view of the developments leading up to the conclusion of the sales contract between the plaintiffs, the reasons leading up to the determination of the payment method for the sale price, the personal relations between the plaintiffs and the non-party, and the plaintiffs, as shown in the attached Table 1 of the judgment below, and the fact that all of the 22 cases are prior to the conclusion of the sales contract except for 4 cases out of the 22 cases, as shown in the attached Table 1 of the judgment below, the plaintiffs directly concluded the sales contract with the power source construction in light of the purport of the above housing sales guarantee, and even if the plaintiffs actually paid the amount equivalent to the sales price as agreed upon between the non-party and the power source construction and the non-party, it is difficult to view that the above circumstance alone is that the plaintiffs are the general buyer with whom it is impossible to know whether the housing construction business operator has sufficient financial ability and project execution ability, or that the housing construction business operator is the non-party, and thus, it is subject to protection by the housing sales guarantee system.

Ultimately, for the payment of debt to the non-party, electric power resource construction entered into a sales contract with the non-party, who is the relative, relative or relative of the non-party, and it cannot be deemed as an evasion of the law to escape from the form of payment in kind. Therefore, the defendant cannot be held liable for the guarantee of the sale in lots to the plaintiffs.

Nevertheless, the court below held that the plaintiffs' act of sale of electric power resource to the plaintiffs constitutes an evasion of the law that is to escape from the form of payment in kind of debt to the non-party or to the non-party. Thus, the court below erred in the misapprehension of legal principles as to house sale guarantee under the Housing Construction Promotion Act and the Enforcement Decree of the same Act, which affected the conclusion of the judgment.

The part of the grounds of appeal assigning this error is with merit.

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

Justices Yoon Jae-sik (Presiding Justice)