[1] The legal nature of a house sale guarantee agreement concluded between a housing construction business operator and a registered business operator under the Housing Construction Promotion Act (=a contract for a conditional third party)

[2] In the case of a housing sale guarantee agreement as referred to in paragraph (1) of the above / [1] The reason attributable to the registrant for the fulfillment of the conditions (negative), and whether the seller is also included in restitution or claim for damages due to the cancellation of the contract as a right under the sales contract which the registrant

[1] In a case where a housing construction business operator constructs and supplies housing, he/she intends to recruit occupants after securing the housing site ownership of the relevant housing and submitting a joint guarantee by a registered housing construction business operator with at least three housing construction records of at least a certain size under Article 7 (1) 1 of the old Rules on Housing Supply (amended by the Ordinance of the Ministry of Construction and Transportation No. 537 of September 1, 1993), and the registered housing business operator fails to complete the construction of the relevant housing, a contract for the so-called conditional third party with the content that the registered housing business operator implements the construction of the relevant housing on behalf of the registered housing construction business operator to perform the duty of housing supply under the sales contract to the occupants who lawfully concluded the sales contract with the housing construction business operator.

[2] In the event of a housing sale guarantee agreement as referred to in paragraph (1) above, if the conditions of the contract are met, such as delay of the construction of the house concerned or loss of its capacity, occupants who have lawfully concluded a sales contract can express their intent of profit and exercise their rights in the sales contract to the registrar, regardless of whether or not there is any cause attributable to the registrant for the fulfillment of such conditions. This includes the right to cancel the sales contract due to the nonperformance of obligation by the housing developer and to claim restitution or damages therefrom.

[1] Articles 147 and 539 of the Civil Act; Article 32 of the former Housing Construction Promotion Act (amended by Act No. 4723 of Jan. 7, 1994); Article 7(1) of the former Rules on Housing Supply / [2] Articles 539, 548(1), and 551 of the Civil Act; Article 7(1) of the former Rules on Housing Supply (amended by Ordinance No. 537 of Sep. 1, 1993)

[1] Supreme Court Decision 96Da6592, 6608, 6615, 6622, 6639 decided May 28, 1996 (Gong1996Ha, 1988)

Lee-sik (Attorney Lee Chang-ho, Counsel for the defendant-appellant)

Dong Young Housing Co., Ltd. and one other (Attorney Kim Hun-hwan, Counsel for the plaintiff-appellant)

Daegu District Court Decision 96Na1786 delivered on July 3, 1996

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

1. We examine the grounds of appeal by Defendant Newsung Construction Co., Ltd.

Article 32 of the former Housing Construction Promotion Act (amended by Act No. 4723 of Jan. 7, 1994) delegates the Minister of Construction and Transportation with the terms, methods, procedures, etc. of housing supply to be followed when a housing construction business operator registered under Article 6 of the same Act constructs and supplies housing. According to Article 7 (1) 1 of the former Rules on Housing Supply (amended by Ordinance No. 537 of Sep. 1, 1993), when a housing construction business operator constructs and supplies housing, he/she shall obtain ownership of the housing site of the housing concerned and obtain housing construction completion of the housing construction project in excess of a certain scale, and if he/she recruits occupants after submitting a registered housing construction business operator with at least three housing construction performance, he/she shall be deemed to have concluded a contract for sale in lots on behalf of the registered housing construction business operator, and shall be deemed to have lost the housing construction business operator's capability to exercise the contract for sale in lots lawfully between the registered housing construction business operator and the registered housing construction business operator. 6. 6. 6. 6.

According to the reasoning of the judgment below, the court below held that the joint and several surety contract of this case entered into between Defendant New Consolidated Construction Co., Ltd. (hereinafter referred to as Defendant New Consolidated Construction Co., Ltd.), etc. in the first instance trial for the first instance trial is a contract for a conditional third party on condition that, in the event that Defendant New Consolidated Construction Co., Ltd. fails to complete the completion of the apartment house of this case, the contract for the joint and several surety contract of this case shall be deemed to be a contract for the third party under condition that the tenant who entered into the contract for sale in lots will perform the duty of housing supply under the contract for sale in lots on behalf of the tenant who entered into the contract for sale in lots on his behalf, and that the condition was fulfilled due to the bankruptcy, the plaintiff, the tenant, lost the capacity to complete the construction of the apartment house of this case on the ground that the contract of this case was lawfully rescinded, and thus, Defendant New Consolidated Construction is liable to return the sale price of 19,000,000 won to the plaintiff.

In addition, in the event that a contract for a third party is concluded as in the instant case, in order for occupants who have concluded a contract for the sale in lots to exercise their rights to a joint and several sureties, it is sufficient for a housing construction business operator to fulfill the conditions such as delaying the construction of the relevant house or losing their capacity, and it does not require any reason attributable to a registered business operator as a joint and several sureties in the fulfillment of such conditions. In addition, in order for occupants who have concluded the instant contract for the sale in lots to recover from the cancellation of the contract to the registered business operator, it is not necessary to cancel the contract for the conditional third party between the housing construction business operator and the registered business operator in addition to cancel the contract for

2. Defendant Dong Young Housing Construction Co., Ltd. failed to file an appellate brief within a lawful period of time, and the reason for appeal is not indicated in the petition of appeal.

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the defendants who are appellant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)