2010 Gohap554 Compensation (as referred to in this paragraph)

1. 00

2. 00

Seo-gu, Plaintiffs’ Address

[Judgment of the court below]

Korea Housing Guarantee Corporation

Seoul Yeongdeungpo-gu 15 - 23

South Korea, the representative director,

Law Firm Roon, Counsel for the plaintiff-appellant

[Defendant-Appellee]

August 26, 2010

September 16, 2010

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The defendant shall deliver to the plaintiffs 445,000,000 won and a copy of the complaint of this case.

C. It shall pay 20% interest per annum from the date of full payment.

1. Basic facts

A. Status of the parties

The plaintiffs share 1/2 shares in Seo-gu, Seo-gu, Gwangju (hereinafter referred to as "the land of this case"), and operate a kindergarten of "001" in the above ground building. The defendant is a person who was entrusted with the above land, etc. from Meart Construction Co., Ltd. (hereinafter referred to as "non-party company"), which purchased the land of this case, etc. in order to implement the construction project of 336 households on the above land of Geumho-dong, 290 and 104, including the land of this case.

B. Sale of the instant land

The plaintiffs sold the instant land to the non-party company on June 10, 2006, and completed the registration of ownership transfer under the name of the non-party company on July 4 of the same year.

C. On July 10, 2006, the non-party company of this case made an additional registration of prohibited matters and completed the additional registration of prohibited matters pursuant to Article 40(3) of the Housing Act on the land of this case on December 5, 2006 with the approval of the housing construction project plan from the head of Seoul Special Metropolitan City on July 10, 2006. The non-party company of this case seems to be a clerical error in the CCC in light of the entry of ownership of the land of this case

It completed the registration of ownership transfer based on the same day trust.

D. After entering into the instant agreement, the Plaintiffs and the non-party companies entered into an agreement on August 24, 2007 (hereinafter “instant agreement”) with the following terms and conditions (hereinafter “instant agreement”).

E. 1) However, a man-made corporation did not construct a new kindergarten’s artificial park. However, the man-made corporation did not build a new kindergarten artificial park.

The plaintiffs completed the test construction in an amount equivalent to KRW 124, 727,60, and KRW 600. 2) The plaintiffs did not perform their obligations under the agreement of this case. On March 31, 2008, the plaintiffs first received a provisional attachment order (hereinafter referred to as the "provisional attachment order of this case") against the "right to claim the ownership transfer registration of the land of this case where the non-party company and the defendant against the defendant due to the termination or termination of the trust agreement between the non-party company and the defendant, with the claim for the agreed amount of KRW 445,00,000 as to KRW 60,000 as to KRW 10,000 from the court of this case. The provisional attachment order of this case was served on the non-party company and the defendant.

3) Next, on July 14, 2008, the plaintiffs filed a lawsuit against the non-party company seeking payment of the ownership transfer registration procedure against the non-party company Nos. 102 and 804 of the instant apartment complex No. 6870, and KRW 569, 727,600 ( = KRW 455,00,000, which was paid as substitute for No. 102, 604 of the instant apartment complex No. 102, + construction cost of KRW 124,727,60 as the interior work cost of the newly-built kindergarten).

On October 1, 2008, the court below held that the defendant paid 569, 727, 600 won to the plaintiffs and 445, 000 won among them, 5% per annum from March 21, 2008 to July 22, 2008, and 20% per annum from the next day to the day of full payment, 12, 727, 600 won per annum from the next day to the day of full payment.

7. From 23. to the day of complete payment, 20% interest per annum shall be paid respectively. 2. Of the instant lawsuit, the Plaintiffs are as to heading 102, 804, Seo-gu, Seo-gu, Seo-gu, Gwangju.

On August 24, 2007, the decision of recommending reconciliation was made on November 8, 2008 that "each withdrawal is made on the part of the claim for ownership transfer registration based on sale," and that the decision of recommending reconciliation was finalized on November 8, 2008.

F. On February 25, 2009, the Defendants completed the registration of ownership transfer on the instant land with respect to the Nonparty Company based on the satisfaction of trust property.

2) Accordingly, on March 9, 2009, the non-party company provided the above 290 and 104 parcels, including the land in this case, to the apartment site "Yho-dong" by a land readjustment and rearrangement project, which was substituted by the said 931 to 31,480m as a substitute site by the said land readjustment and rearrangement project. After the construction of the apartment, the non-party company sold it to the buyer, etc. or disposed of it to the construction company as a substitute payment for the obligation for the construction price.

[Grounds for Recognition] Unsatisfy, entry in Gap evidence 1 through 5 (including branch numbers if there are numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. The parties' assertion and judgment

A. The parties' assertion

The plaintiffs are the cause of the claim of this case. The defendant did not implement the procedure for the ownership transfer registration of the land of this case in accordance with the provisional seizure order of this case, but the non-party company completed the registration of ownership transfer in the future of the non-party company. The non-party company disposed of this case again and incurred losses which were not recovered from the non-party company due to the disposal of this case to the non-party company. Thus, the plaintiff, who is the right holder of provisional seizure, did not recover the claim amount of the provisional seizure order of this case from the non-party company. Thus, it asserts that this constitutes tort against the

In this regard, if the defendant grants provisional seizure of the right to claim ownership transfer registration of the site without the consent of the tenant after the supplementary registration date of Article 40 (3) of the Housing Act, the provisional seizure decision of this case has been null and void as it violates Article 40 of the Housing Act. ② Even if the provisional seizure decision of this case is valid, in order to obtain the final satisfaction of the claim claim, the land of this case should first be reverted to the non-party company's responsible property, and the compulsory auction accompanied by seizure is prohibited under Article 40 of the Housing Act, so it is impossible to simplify the land of this case, and therefore, it cannot be seen as having caused any damage to the plaintiffs due to the defendant's act.

B. Determination

1) Whether the decision of provisional seizure in this case is effective or not, in violation of Article 40 (1) of the Housing Act, even if the relevant house or site was offered as security or disposed of as security in violation of Article 40 (1) of the Housing Act, its judicial effect is not denied. The purport of Article 40 of the Housing Act is, in principle, to protect the persons who have been supplied with the housing after the approval of the public announcement of the invitation of residents, to make the additional registration of prohibited matters regarding the housing construction site before the witness, and to prohibit the disposal of the housing site thereafter, and to deny the validity of the effect of the change in real right due to the disposal prohibited from disposal, or seizure, provisional seizure, provisional disposition, provisional disposition, etc. under paragraph (3) of the same Article. Thus, only if the additional registration under paragraph (3) of the same Article is completed after the date of the additional registration, the validity of the transfer of the relevant housing site, establishment of limited real right, or the seizure, provisional seizure, provisional disposition, etc. is invalidated pursuant to paragraph (5) of the same Article (see Supreme Court Decision 2064Da664, Jan.

However, the seizure or provisional seizure of the right to claim ownership transfer registration is not against the claim, but against the object of the right to claim ownership transfer registration, and it is not against the object of the right to claim ownership registration, and there is no physical effect that prohibits the disposal of real estate itself (see Supreme Court Decision 2005Da44886, Sept. 21, 2007). Article 40 of the Housing Act prohibits the seizure or provisional seizure of "the relevant site itself" after the additional registration date only in cases where the additional registration of prohibited matters is completed in relation to the housing construction site to protect the prospective occupants of the housing construction project. Thus, it cannot be deemed that the seizure or provisional seizure of "right to claim ownership transfer registration of the relevant site" is prohibited by the above provision.

B) Therefore, the provisional attachment decision of this case, which is merely a provisional attachment of the right to claim ownership transfer registration of the land of this case, is valid since the additional registration of prohibited matters was completed pursuant to Article 40(3) of the Housing Act regarding the land of this case after the additional registration of prohibited matters was completed.

2) Whether or not damage has occurred to the plaintiffs) When the garnishee committed the transfer registration of real estate for which the right to claim for the transfer registration of ownership was provisionally seized, and the debtor incurred damage to the creditor as a result of the debtor's re-registration of transfer to a third party, disregarding the decision of seizure, and making a transfer registration again to the third party (see Supreme Court Decision 2005Da44886, Sept. 21, 2007, etc.).

However, in case where a claim for ownership transfer registration is seized, in order for a creditor to collect a claim, the creditor shall first complete the ownership transfer registration under the name of the debtor with respect to the real estate in accordance with the procedure stipulated in Article 244 of the Civil Execution Act, and then conduct a compulsory auction for the real estate again and receive the distribution in the auction procedure (see Supreme Court Decision 2002Da39371 delivered on October 25, 20

Specifically, a creditor who seized the right to claim for transfer of ownership may file an application with the custodian for a decision to appoint a custodian in the district court in the location of the real estate and to order the garnishee to comply with the procedure for transfer of ownership in the name of the debtor (if the creditor delays such application, the garnishee may also file an application for exemption from liability). If the creditor's application is well-grounded, the court shall order the custodian to appoint the custodian by decision and the third debtor to perform the procedure for transfer of ownership in the name of the debtor to the custodian of the real estate. If the third debtor voluntarily performs the registration obligation pursuant to the above decision, the third debtor shall file an application for transfer of ownership in the name of the debtor (if the custodian applies for transfer of ownership in the name of the debtor, the debtor's agent) and the third debtor's registration. If the third debtor fails to cooperate with the execution of the registration procedure, the creditor shall file a collection lawsuit against the third debtor after obtaining a collection order, and completed the registration of transfer of ownership in the name of the debtor based on such final judgment, and then the creditor shall be subject to compulsory execution in the auction or compulsory auction.

B) Therefore, the Plaintiffs, who seized the right to claim for ownership transfer registration against the Defendant by the non-party company, first of all, secured the title against the non-party company, and then transferred the right to claim ownership transfer registration to the non-party company as a provisional seizure, upon receiving an order to appoint a custodian and transfer the right to the right to claim ownership transfer registration, and upon filing an application with the Gwangju District Court for the issuance of an order to appoint a custodian and transfer the right to the non-party company to ensure that the ownership transfer

However, in order for the plaintiffs to obtain the final satisfaction of the claim claim claim of this case, a separate application for compulsory auction or compulsory administration against the land itself based on the execution title. When the execution court receives the application for compulsory auction or compulsory administration and deems the application lawful, it shall make a decision to commence the compulsory auction and at the same time order to seize the land of this case (Articles 83(1) and 162 of the Civil Execution Act). This constitutes a case where the land of this case is subject to additional registration of prohibited matters under Article 40(3) of the Housing Act after the additional registration of prohibited matters under Article 40(3) of the Housing Act is completed.

Ultimately, even if the provisional attachment decision of this case does not fall under the prohibition of Article 40 of the Housing Act, and is valid, the plaintiffs could not obtain the final satisfaction of claim claims due to the enforcement of compulsory auction, etc. on the land of this case due to the prohibition effect of Article 40 of the Housing Act at that time, and due to the impossibility of cashing through it. Therefore, even though the defendant completed the ownership transfer registration of this case where the claim for ownership transfer registration was provisionally seized without disregarding the provisional attachment decision of this case, it cannot be deemed that the damages have occurred to the plaintiffs even if the non-party company disposed of the land

C) Therefore, the prior Plaintiffs’ assertion on a different premise is without merit to further examine the scope of damages.

3. Conclusion

Therefore, all of the plaintiffs' claims in this case are dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Young-hoon

Judges fixed-term

Judges Park Gi-ju