[1] Article 16 (2) 1 of the former Housing Act applicable to a project proprietor’s claim for sale after filing an application for approval of a housing construction project plan after January 11, 2007 (=Article 18-2 (1) of the former Housing Act)

[2] In a case where Gap corporation filed an application for the approval of the housing construction project plan with the head of Eul on May 24, 2006, and withdrawn the said application on January 10, 2007, and applied again for the approval of the housing construction project plan on January 11, 2007, and Eul applied for the approval of the project plan with the head of Eul on January 12, 2007, the case holding that the judgment below rejected Gap corporation's claim for sale after concluding that Gap cannot be deemed a project operator under Article 16 (2) 1 of the former Housing Act, and it is erroneous in the misapprehension of legal principles as to the application of Article 18-2 (1) of the same Act and the interpretation of Article 18-2 (2) of the Addenda

[1] Article 18-2(1) of the former Housing Act (amended by Act No. 8657 of Oct. 17, 2007); Article 18-2(1) of the Addenda of the former Housing Act (amended by Act No. 8657 of Aug. 3, 2007); Article 18-2(1) of the former Housing Act (amended by Act No. 8657 of Oct. 17, 2007); Article 18-2(1) and (2) of the Addenda of the former Housing Act (amended by Act No. 8657 of Aug. 3, 2007)

Han-ro L&D Co., Ltd. (Law Firm Chang-Gong, Attorneys Park Jong-bong et al., Counsel for the defendant-appellant)

Defendant

Daegu High Court Decision 2010Na2719 decided October 15, 2010

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate brief).

Article 18-2(1) of the former Housing Act (amended by Act No. 8239 of Jan. 11, 2007 and amended by Act No. 8657 of Oct. 17, 2007; hereinafter “former Housing Act”) provides that “The project undertaker who has obtained approval for his housing construction project plan pursuant to Article 16(2)1 shall be excluded from the owner of a site (including buildings; hereafter the same shall apply in this Article and Article 18-3) who fails to secure a title to use the site from among the relevant housing construction sites (including buildings; hereafter the same shall apply in this Article and Article 18-3). In this case, the provision of Article 18-2(1) of the former Housing Act provides that when calculating the period of ownership of the housing site, the owner of the housing site shall apply for sale of the housing site at the first time after the date of the determination of the district unit planning zone, the period of ownership of the inheritee shall be added to the period of ownership of the housing site, and Article 18(2) of the former Housing Act shall apply mutatis mutandis.

According to the reasoning of the judgment of the court of first instance cited by the court below, the plaintiff filed an application for approval of the housing construction project plan with the Daegu Metropolitan City Mayor on May 24, 2006, but withdrawn the above application on January 10, 2007 and applied for approval again on January 11, 2007, and the Daegu Metropolitan City Mayor made a disposition of approval of the project plan of this case against the plaintiff on January 12, 2007. In light of the above legal principles and the facts that the contents of the project plan of this case, which the plaintiff applied for approval of the project plan of this case, include changes in the area of the site compared with the previous project plan, and it cannot be seen as identical both, the plaintiff's claim for sale after the enforcement of the former Housing Act shall be governed by Article 18-2 of the former Housing Act pursuant to Article 2 of the Addenda to the former Housing Act. Thus, the court below erred in its judgment that the plaintiff cannot be deemed a project operator subject to the approval of the project plan under the former

Furthermore, the court below should determine the legitimacy of the claim for the transfer registration of ownership in this case by examining whether the Plaintiff, a project undertaker who obtained approval of a project plan pursuant to Article 16 (2) 1 of the former Housing Act, had gone through prior consultation on the premise of exercising the right to demand sale under Article 18-2 (1) of the former Housing Act, and whether there was a claim for sale within the period for such exercise.

Nevertheless, the court below concluded that the plaintiff cannot be deemed a project operator under Article 16 (2) 1 of the former Housing Act, and rejected the plaintiff's claim on the ground that the defendant is not subject to a claim for sale. This decision of the court below is erroneous in the misapprehension of legal principles as to the application of Article 18-2 (1) of the former Housing Act and the interpretation of Article 18-2 (2) of the Addenda,

Therefore, 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 on the bench.

Justices Ahn Dai-hee (Presiding Justice)