Whether a housing project mutual aid association that guarantees the sale of houses under the Enforcement Decree of the Housing Construction Promotion Act bears the guarantee responsibility where creditors of a housing construction project operator have concluded a contract for the sale of apartment houses sold by the said business operator as a payment in kind for its bonds

The purpose of the Housing Business Mutual Aid Association is to guarantee the sale of housing in accordance with the Housing Construction Promotion Act and the Enforcement Decree of the same Act and to protect bona fide buyers who have concluded a sale contract and paid the sale price in accordance with the procedures and methods prescribed in the Rules on Housing Supply. Therefore, it is reasonable to view that the Housing Business Mutual Aid Association that has guaranteed the sale of housing bears the responsibility to refund the sale price paid by the buyers who have purchased the housing from the housing construction business operator or to guarantee the sale of the housing on the premise that the buyers who have purchased the housing pay the down payment and the intermediate payment, unless there are special circumstances. Therefore, if the creditors of the housing construction business agree to pay the sale price of the remaining housing without the sale price by open recruitment with the housing construction business operator as a means of securing or recovering the bonds, they shall not be held liable to refund the amount equivalent to the sale price appropriated as the existing bonds or to guarantee the sale price.

Articles 428, 606 of the Civil Act, Article 32 of the Housing Construction Promotion Act, Article 43-5 (1) 4 of the Enforcement Decree of the Housing Construction Promotion Act

Plaintiff 1 and two others (Attorneys Kim Young-sub, Counsel for the plaintiff-appellant)

Housing Business Mutual Aid Association (Attorney Park Young-chul, Counsel for the plaintiff-appellant)

Seoul High Court Decision 97Na22043 delivered on October 31, 1997

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

We examine the grounds of appeal.

1. On the first ground for appeal

The plaintiffs asserted that the defendant is obligated to refund each of the above down payment to the plaintiffs according to the housing unit sale guarantee contract, since the non-party company entered into the sales contract lawfully with the non-party 5,565,00 won for each of the above down payment dates. The non-party company entered into the sales contract with the non-party 3 company, 5,00 won for each of the above 5,00 won for each of the above down payment dates. The court below rejected the non-party 2's assertion that the non-party 3 company did not purchase the above down payment amount for the non-party 4,00 won for each of the above 5,00 won for the non-party 5,00 won for each of the above 5,00 won for the non-party 4,000 won for each of the above apartment units to the non-party 5,000 won for the non-party 4,000 won for each of the above 5,000 won for the non-party 14,014,5.

In light of the records, the fact-finding and judgment of the court below are just, and there are no errors in the misapprehension of legal principles as to the effect of the apartment supply contract (A evidence No. 1-1, 2, 3) which is a disposal document or the fact-finding in violation of the rules of evidence as otherwise alleged in the ground of appeal.

The court below held that the non-party prepared the sales contract in the name of the plaintiffs as a means of recovering the claim for wood price to the non-party company without entering into the actual sales contract with the non-party company, unlike the ordinary sales contract actually paid by the buyers, it is the purport that the above sales contract was not actually paid by the plaintiffs for the purpose of mortgage security, etc., and it cannot be deemed that the plaintiffs did not recognize the fact that the sales contract was concluded by the plaintiffs itself.

The grounds of appeal are without merit.

2. On the second ground for appeal

The former Rules on Housing Supply (amended by Ordinance of the Ministry of Construction and Transportation No. 39, Nov. 6, 1995) of the Housing Construction Promotion Act provides that the procedures for and methods of supplying the housing shall be selected by open recruitment (Article 8(1)); in the case of general supply, the occupants shall be selected by lot according to the prescribed order of priority (Article 10(2)); in the case of remaining housing, the occupants shall be selected by lot for the prescribed qualified persons (Article 10(5)); in the case of remaining housing, the occupants may be selected by lot (Article 10(6) of the Enforcement Decree of the Housing Construction Promotion Act; in the case of the remaining housing, the owners shall be held liable for the payment of the occupancy deposit; in the case of the housing, the owners shall be entitled to receive the occupancy deposit, contract deposit, intermediate payment and balance within the prescribed time and amount pursuant to the construction process; in the case of the housing project by the owners of the housing project concerned, the owners of the housing project shall be entitled to receive the occupancy deposit or deposit of the housing within the fixed period and the housing project plan.

In light of these various provisions, the purpose of the Housing Project Mutual Aid Association's guarantee system is to protect the buyers in good faith who concluded a sales contract in accordance with the procedures and methods prescribed by the Housing Construction Promotion Act and the Enforcement Decree of the same Act, and to protect the buyers who paid the sales price. Therefore, it is reasonable to view that the Housing Project Mutual Aid Association, which provided the housing sales guarantee, bears the responsibility to refund the sales price paid or guarantee the sales price of a house on the premise that the buyers who purchased the house from the housing construction business operator pay the down payment and the intermediate payment, unless there are special circumstances, and that creditors of the housing construction business operator are liable for the refund of the sales price paid or guarantee for the sale of the house on the premise that the buyers who purchased the house should pay the down payment and the intermediate payment. In the event that a creditor of the housing construction business operator has agreed to pay the purchase price of the remaining house by means of open recruitment as part of securing or recovering the claim, the Housing Business Mutual Aid Association

According to the facts duly established by the court below, the non-party purchased each apartment of this case in the name of the plaintiffs as a means of recovering timber price, and appropriated for the payment of part of the purchase price of the apartment of this case with its bonds, and the actual purchase price was not paid at all. Therefore, if so, the plaintiffs cannot be deemed a bona fide purchaser who concluded a sales contract with the non-party company in accordance with the procedure and method stipulated in the above rules and cannot be deemed a bona fide purchaser who paid the purchase price. Thus, the non-party cannot claim a refund of the amount equivalent

The decision of the court below in accordance with the same legal principle is just, and there is no error in the misapprehension of legal principles as to the house sale guarantee under Article 43-5 (1) 4 (a) of the Enforcement Decree of the Housing Construction Promotion Act or as to the interpretation of the house sale guarantee certificate (Evidence A 9) which is a disposal document, as otherwise alleged in the ground of appeal

The grounds of appeal are without merit.

3. On the third ground for appeal

The court below's decision that there was no assertion or proof that there was a contract between the non-party company and the defendant for other payment guarantee under Article 43-5 (1) 3 (c) of the Enforcement Decree of the Housing Construction Promotion Act, if the defendant bears the responsibility to guarantee the refund of the amount equivalent to the sale price even in the case where the contract for sale in lots was concluded as a means to recover the wood price in this case, the above Enforcement Decree provides other payment guarantee systems separate from the house sale guarantee in relation to the purchase of housing materials, and the liabilities arising from the purchase of materials can be secured by other payment guarantee, and thus, it cannot be said that the above debt is unfair by the house sale guarantee, and the defendant rejected the plaintiffs' claims on the grounds that it did not guarantee other payment.

Therefore, there is no reason for appeal that there is an error in the incomplete hearing or failure to exercise the right to request explanation as to the conclusion of the payment guarantee contract, and the reasons for appeal are also without merit.

3. 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 Seo Sung-sung (Presiding Justice)