[1] The status of the combined housing association in the parcelling-out contract where several workplace housing associations or regional housing associations jointly form a combined housing association consisting of all members of each association for the purpose of promoting the housing construction project, and such combined housing association concluded a parcelling-out contract with the non-members while taking charge of the parcelling-out business

[2] Whether the buyer who entered into a contract for sale in lots with the combined housing association can claim the effect of the contract for sale in lots to the unit housing association to be the title holder of the preservation registration of the house (affirmative)

[3] The relation to the ownership of apartment buildings sold to the general public by the combined housing association (=collective ownership of all the union members) and the method of disposal thereof

[1] In light of the circumstances and purpose of the establishment of the combined housing association, its members and organization, progress of the promotion of the project, contents of each contract for sale and purchase, etc., the combined housing association cannot be seen as a simple business execution institution of several workplace housing associations or regional housing associations, and as an independent non-corporate association, it shall have the status of the parties to each contract for sale and purchase as the parties themselves. Meanwhile, the combined housing association shall be established for the purpose of jointly promoting each of the above associations solely because each association's size is small and so it is difficult for each association to independently promote the association's apartment construction project. The members of the association are all the members of the above association and its officers shall be composed of all the above association's president and general affairs. Accordingly, each association shall have the combined housing association take charge of all the affairs such as construction of apartment houses, allocation of apartment houses among the members of the association, sale in lots of non-members' apartment houses, etc. However, since the association authorized under the Housing Construction Promotion Act is each of the above associations, its title holder shall be each of the above association's registration of construction permission completion.

[2] The buyer who entered into a contract for sale in lots with the combined housing association can claim the effect of the contract for sale in lots to the unit housing association unless there are special circumstances.

[3] The Union Housing Association is also an independent non-corporate association. Voluntary apartment units to be sold to the general public belong to the collective ownership of all the members of the Union Housing Association. However, if the articles of association or regulations of the Union regarding the management and disposal of the voluntary apartment units, which are collective property, exist, it shall be done by a resolution at the general meeting of the members. Thus, even if it is the disposal of the property by the representative, it shall be null and void.

[1] Article 114 of the Civil Act, Article 3 of the Housing Construction Promotion Act / [2] Article 114 of the Civil Act, Article 3 of the Housing Construction Promotion Act / [3] Articles 275 and 276 of the Civil Act, Article 3 of the Housing Construction

[3] Supreme Court Decision 2000Da10246 decided May 29, 2001 (Gong2001Ha, 1459) Supreme Court Decision 2000Da62582 decided July 10, 2001

Plaintiff 1 and two others (Attorney Yoon-ho, Counsel for the plaintiff-appellant)

Insurance-based and four others (Attorney Kim Young-hoon, Counsel for the defendant-appellant)

Seoul High Court Decision 99Na14152 delivered on December 3, 1999

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

1. Review of the facts and records acknowledged by the court below reveals the following facts.

A. The Defendants were to obtain authorization for the establishment of workplace housing associations or regional housing associations with 20 to 47 members from Songpa-gu Office during the period from October 6, 1993 to February 24, 1994, but each association was in small size and thus it was difficult to independently implement each association apartment construction project.

B. Accordingly, around March 194, the Defendants organized the Masong Apartment Apartment Complex Joint Housing Association (hereinafter referred to as the “Massung Complex Association”) with the delegation of each association member and with the delegation of each association member, and promoted the project of constructing the partnership apartment on the 120-4 and 10 parcels of Songpa-gu Seoul Metropolitan Government.

C. According to the rules of the friendly alliance association, the association’s objective business is the comprehensive planning, promotion, supply, and management of the association apartment construction and its objection, supervision of the association members’ contributions, management and operation of the association members’ contributions, organization and management of the association members’ contributions (Article 5). The association’s objective business is the establishment of the association head and the association head, general affairs, and auditor, etc. elected at the board of directors’ meetings (Article 14). A general meeting and a decision-making body shall have voting rights on the agenda that has significant changes in the interests of the association members’ rights, such as the addition of the selling price to the sale price and the change of business scale (Article 18). An association has voting rights on all the matters concerning the appointment and promotion of the association head, the matters concerning the establishment of the general rules and amendments

D. On May 3, 1994, the Postal Union constructed a private apartment of 162 households on the said apartment on the said apartment lot in the name of the Defendants from the Songpa-gu Office (hereinafter “instant apartment”) and approved the business plan to sell 148 households to its members and 14 households to non-members. On the same day, the Association obtained the construction permission for the instant apartment in the name of the Defendants from the above Gu office.

E. On November 27, 1994, friendly Construction Co., Ltd. and the instant apartment construction contract were concluded between the Essung Union and the Essung Union.

F. The Postal Union shall manage and operate the charges for apartment units for the members of 148 households, and shall allocate housing units for the non-members. Regarding the apartment units for the non-members of 14 households, 14 members who are recruited as temporary members who meet the requirements of 1 year residing in Seoul and 3 years as non-family owners at the time of the completion of the partnership apartment construction project, but among them, 4 members, withdraw from the partnership due to lack of qualification, etc., thereby arbitrarily selling the apartment units for the non-members of 4 households.

G. Nonparty 2, etc., who had been a chief of the cooperative association and a representative director of exclusive construction adviser, who is an agent for the execution of apartment building construction business, conspired to double parcelling-out of the above four households apartment units and to acquire the proceeds of parcelling-out, and thereafter recruited Nonparty 3, etc., who is the so-called real estate hub, and recruited the applicants for parcelling-out from January 1, 1996 to August 1, 1997, and acquired the proceeds of parcelling-out by double selling the above four households to 108 persons, including the plaintiffs, including the plaintiffs.

H. On May 22, 1997, Plaintiff 2 entered into a contract with Nonparty 3 on the purchase of an apartment unit of the said voluntarily sold apartment unit, and paid the down payment of KRW 30,000,000 to Nonparty 2 for the intermediate payment and the balance of KRW 115,00,000. On May 23, 1997, Plaintiff 1 and Plaintiff 3 entered into a contract with Nonparty 2 for the purchase of an apartment unit of the said voluntarily sold apartment unit, and paid KRW 145,640,00 to Nonparty 2 for the purchase of the said voluntarily sold apartment unit, and Plaintiff 3 paid KRW 15,00,00 to Nonparty 3 for the purchase of the said apartment unit. After becoming aware that the said sale was a overlapping sale, Nonparty 1 was issued with the execution note of the instant sales contract in the name of the Association in the name of the head of the said housing association.

2. The plaintiffs' assertion and the summary of the judgment of the court below

The court below rejected all of the plaintiffs' claims on the grounds that, on the premise that the contract for the sale in this case entered into in the name of the friendly partnership is a business entity of the defendants or an agent, and that the contract for the sale in this case belongs to the defendants, and that the plaintiffs confirm that the plaintiffs are the buyers of the apartment of this case and seek the implementation of the procedure for the registration of ownership transfer for each apartment of this case, the friendly partnership is an unincorporated association separate from the defendants, and thus it cannot be deemed that the defendants' business entity is the non-corporate association, and the friendly partnership performs the comprehensive plan, implementation, supply, management, supervision, management and operation of the association housing construction, and so it cannot be deemed that the defendants

3. Judgment of the Supreme Court

However, the court below's decision that the contract of this case cannot be asserted against the defendants is not acceptable for the following reasons.

In light of the circumstances and purpose of the establishment of the friendly alliance association, its members and organization, progress and contents of the project promotion, and the circumstances leading up to the conclusion of each of the sales contracts in this case, the friendly alliance association cannot be deemed as the simple business execution agency of the Defendants association, and it shall have the status of the parties to each of the sales contracts in this case as an independent non-corporate association. However, the friendly alliance association is established for the purpose of jointly promoting its business solely because each association is small in size of the Defendants' own association because it is difficult for each association to carry out its apartment construction projects, and its members are all members of the association and its officers are composed of the heads and general affairs of each association of the Defendants. Accordingly, the defendants are required to make the friendly alliance association take charge of all of the affairs such as the construction of the apartment in this case, the allocation of the apartment house among the members of the association, the sale of the non-members of the association, and the Defendants association shall be held the name of the parties to the sales contract in this case as the representative of the Defendants.

However, the friendly alliance association is also an independent non-corporate association, and the apartment house for voluntary sale in lots to the general public belongs to the collective ownership of all the members of the friendly alliance association. However, if the articles of association or regulations of the association regarding the management and disposal of the apartment house for voluntary sale in lots, which is collective ownership, exist, it shall be done by the resolution of the general meeting of the association members. Thus, even if it is the disposal of the property by the representative, the act done without such procedure is null and void (see Supreme Court Decision 2000Da62582 delivered on July 10, 201). According to the records, since the rules of the friendly alliance association do not provide any provision about the disposal of the collective ownership, and there is no evidence to find that the agreement of the friendly alliance association was passed the resolution of the general meeting on the sale of the apartment house in this case, each of the sale contracts in this case is null and void. Accordingly, the plaintiffs can not assert the effect of each of the sale contracts in this

Therefore, the judgment of the court below is erroneous as seen above, but the conclusion of rejecting all of the plaintiffs' claims is justifiable. Therefore, the plaintiffs' appeals cannot be accepted.

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae- Jae (Presiding Justice)