Suwon 42 Housing Reconstruction and Improvement Project Association (Law Firm LLC, Attorneys Kim Jin-jin, Counsel for the plaintiff-appellant)

Defendant 1 and nine others

Defendant 2 and five others (Law Firm Kangsan, Attorneys Kim Tae-won, Counsel for the defendant-appellant)

April 8, 2014

Suwon District Court Decision 2012Gahap3262 Decided June 14, 2013

1.The judgment of the first instance shall be modified as follows:

2. The Plaintiff:

A. At the same time, Defendant 1 received KRW 171,360,000 from the Plaintiff;

1) With respect to the land listed in the separate sheet No. 1 list, the procedures for the transfer of ownership due to the sale on April 2, 2012 shall be implemented;

2) The land described in paragraph 1 above is transferred; and

B. At the same time, Defendant 2 received KRW 188,160,000 from the Plaintiff;

1) With respect to the land listed in Appendix 1 List 2, the procedures for the transfer of ownership due to the sale on March 9, 2012 shall be implemented;

2) The land described in paragraph 1 above is transferred; and

C. At the same time, Defendant 3 received KRW 379,260,000 from the Plaintiff;

1) With respect to the three land listed in the separate sheet No. 1 list, the procedures for the transfer of ownership due to the sale on March 9, 2012 shall be implemented;

2) The land described in paragraph 1 above is transferred; and

D. At the same time, Defendant 4 received KRW 24,940,00 from the Plaintiff as the statutory administrator of the rehabilitation debtor friendly construction corporation, which is the lawsuit taking over the lawsuit of the defendant friendly construction corporation;

1) With respect to the 4 land listed in the separate sheet No. 1 list, the procedures for the transfer of ownership due to the sale on March 9, 2012 shall be implemented;

2) The land described in paragraph 1 above is transferred; and

E. At the same time, Defendant 5, Defendant 6, and Defendant 7 receive KRW 14,113,33, respectively from the Plaintiff:

1) As to shares of 1/3 of the lands listed in the separate sheet Nos. 1 list, Defendant 5 implements the procedure for the registration of ownership transfer for each trade as of March 12, 2012; Defendant 6, March 8, 2012; Defendant 7, March 9, 2012;

2) With respect to each one-third share, the land described in paragraph 1 above is transferred; and

F. Defendant 8 and Defendant 9 receive each of KRW 15,960,000 from the Plaintiff at the same time:

1) The procedures for the registration of ownership transfer on the ground of sale as of March 9, 2012 with respect to shares of 1/2 in the 6-land listed in the separate sheet No. 1 list are implemented;

2) With respect to each one-half share, the land described in paragraph (1) above shall be transferred; and

G. At the same time, Defendant 10 received KRW 240,900,000 from the Plaintiff:

1) With respect to the seven land listed in the separate sheet No. 1 list, the procedures for the registration of ownership transfer due to the sale on March 12, 2012 shall be implemented;

2) The land described in paragraph 1 above is transferred; and

H. At the same time, Defendant 11 received KRW 52,560,000 from the Plaintiff:

1) With respect to the 8 land listed in the separate sheet No. 1 list, the procedures for the transfer of ownership due to the sale on March 8, 2012 shall be implemented;

2) The land described in paragraph 1 above is transferred; and

I. At the same time, Defendant 12 received KRW 122,640,00 from the Plaintiff:

1) With respect to the 9 land listed in the separate sheet No. 1 list, the procedures for the transfer of ownership due to the sale on March 9, 2012 shall be implemented;

2) The land described in paragraph 1 above is transferred; and

(j) At the same time, Defendants 13, 14, and 15 receive KRW 8,760,000 from the Plaintiff;

1) As to each share of 2/11 of the lands listed in the separate sheet Nos. 10, Defendant 13, and Defendant 15, respectively, implement the procedure for the registration of ownership transfer for each purchase on March 9, 2012 and Defendant 14 on March 12, 2012;

2) As to each share of 2/11, the land described in paragraph 1 above is transferred; and

(k) Defendant 16 received KRW 13,140,00 from the Plaintiff at the same time;

1) Of 10 land listed in the separate sheet No. 1, the procedures for the registration of transfer of ownership on the ground of sale as of March 9, 2012 shall be conducted;

2) With respect to 3/11 shares, the land described in paragraph 1 above is transferred.

3. Of the total costs of litigation, the costs of appraisal are assessed against the Plaintiff, and the remainder are assessed against the Defendants.

4.Paragraphs 2-a to 2-1 (k) may be provisionally executed.

1. Purport of claim

Paragraph 2 of this Article.

2. Purport of appeal

[Judgment of the court below]

[Defendant 2, Defendant 3, Defendant 8, Defendant 9, Defendant 10, and Defendant 11] In the first instance judgment, the part against the above Defendants shall be revoked and the Plaintiff’s claim shall be dismissed.

1. Facts of recognition;

A. On September 15, 201, the Plaintiff: (a) deemed the number-dong (number 1 omitted) as the re-building improvement project zone; and (b) completed the registration of incorporation on September 23, 201 with the authorization for establishment of the re-building maintenance and improvement project association from the Gu Ri mayor.

B. The Defendants are owners of each land listed in the separate sheet No. 1 (hereinafter referred to as “each land listed in the separate sheet No. 1”) included in the instant rearrangement project zone, and each land listed in the separate sheet No. 1 is indicated as “the land of this case”, “the answer”, and “miscellaneous land,” but all of them are used as a road provided for passage of neighboring residents or a parking space adjoining to the road.

C. On October 27, 2011, the Plaintiff sent to the Defendants each mail a “case of a request for land sale through consultation,” to the effect that “the Plaintiff needs to acquire ownership of each land of this case for a reconstruction project, so that the Plaintiff may request consultations with the Defendants and the court may not reach an agreement,” and the mail reached the date indicated in the attached Form 2 “the date of arrival of content certification”. The Defendants did not reply to the Plaintiff until two months after each arrival date.

D. Upon filing the instant lawsuit on February 23, 2012, the Plaintiff filed a claim for sale of each of the instant lands pursuant to Article 39 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”) and Article 48 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter “Act on the Ownership and Management of Aggregate Buildings”). A copy of the instant complaint was served on each of the Defendants on each of the date indicated “the delivery date of a copy of the complaint” in attached Form 2.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 4, 5, 6 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination

A. Formation of a sales contract by exercising a claim for sale

According to the above facts, the Defendants were notified of the Plaintiff to reply to the consultation on the conclusion of the sales contract for each of the instant land within two months, and the Plaintiff was entitled to exercise the right to sell each of the instant land in accordance with Article 39 of the Urban Improvement Act and Article 48 of the Multi-Family Building Act. Moreover, upon delivery of a copy of the instant complaint to the Defendants on each of the instant land as of the date indicated in the attached Form 2’s “the delivery date of a copy of the complaint” between the Plaintiff and the Defendants, the sales contract for each of the instant land was concluded as the sale price as of the date of service between the Plaintiff and the Defendants.

(b) Determination of the purchase price;

(i) the method and result of the market price appraisal;

A) The appraisal procedures of the first instance appraiser are as follows:

First of all, with respect to the instant land 1, 2, 5, or 10 square meters (2.10,000 square meters per square meter as of January 1, 2012, the officially announced land price as of January 1, 2012, as the site for standard land A, housing, or commercial buildings) located in the neighboring areas of each of the instant land, which are similar to the specific use area, land category, use status, and surrounding environment, were selected as a comparative standard for the instant 3 and 4 land.

Next, it reflecteds the fluctuation rate at the time of the price which serves as the basis for appraisal in the officially assessed price of such comparative standard land, and calculates the gap between the comparative standard and the individual factors factors by comparing the street conditions, access conditions, environmental conditions, catch conditions, administrative conditions of each land of this case.

Finally, in consideration of the evaluation precedents of neighboring areas, the gap between the officially announced values, the three cases of sales in neighboring areas, the level of quotations, etc., 2.0 for reference land A, 1.9 for reference land B, and 1.9 for other factors.

On the other hand, the appraiser applied the gap between 0.33 and 0.33 in determining the status of the use of each land of this case as “road” and “road” upon the request of the court of first instance.

B) The appraisal results of each of the instant lands calculated in accordance with such procedures and methods are as follows:

Land 18,160,160,2003 land 379,260,2600,0003 land 379,260,260,0000 815,850,000 4 land 24,940,000 542,340,750,000 740,750,750,000 631,920,000,000 631,920,000,000,00,00 70,000,000,00 631,920,00,00,000,000 540,008,008,005,70,0000,5370,70,0007 land 240,000,508,007,0085,08208

C) Meanwhile, on May 20, 2013, in the inquiry inquiry reply, the appraiser evaluated “road” as 1/3 in consideration of the market price of similar neighboring land at the standard point of time, and the market price of neighboring similar land reflects the change in land prices due to the implementation of a reconstruction project. Therefore, the value of the road assessed on the basis thereof should also be deemed as reflecting the development gains.”

[Grounds for recognition] Unsatisfy, the result of market price appraisal by the first instance appraiser, the fact inquiry results by the court of first instance, and the purport of whole pleadings

2) The parties' assertion on the market price appraisal result

The parties, while recognizing that the "market price" stipulated in Article 48 (4) of the Multi-Family Building Act is the objective transaction price of the land or building at the time of exercising the right to demand sale, which includes the "development gains expected to be generated from reconstruction", the parties asserts that the specific method of calculation is as follows.

A) Plaintiff

In general, since the actual transaction price of reconstruction apartments formed through the real estate brokerage office is formed by reflecting development gains (see Supreme Court Decision 2003Da55455, Jun. 24, 2005), it is a double evaluation to evaluate development gains as "site" and reflect development gains by evaluating development gains as "site" as the sale price of each land of this case has already been reflected in the sale price of each land of this case. Therefore, it is reasonable to evaluate each land of this case as roads according to the land use plan for the reconstruction project of this case. Furthermore, according to the land use plan for the reconstruction project of this case, each land of this case is to be used as a landscape green belt or road after reconstruction, and there is

B) Defendant 2 (Defendant 1), Defendant 3 (Defendant 2 of the Supreme Court’s judgment), Defendant 8 (Defendant 3 of the Supreme Court’s judgment), Defendant 9 (Defendant 4 of the Supreme Court’s judgment), Defendant 10 (Defendant 5 of the Supreme Court’s judgment), and Defendant 11 (Defendant 6 of the Supreme Court’s judgment, etc.) (hereinafter “Defendant 2, etc.”)

The current status is not to evaluate the market price of the land scheduled to be used as the site of reconstruction apartment as “road” or the site of reconstruction apartment, but to evaluate it under the premise that it is “site,” which is the site of reconstruction apartment (see Supreme Court Decision 2008Da21549, 2156, 21563, March 26, 2009). Therefore, each of the instant lands is to be evaluated as a site in light of the fact that it would be used as the site of reconstruction project in the future.

3) Specific determination

The establishment of a sales contract by exercising the right to demand sale of a housing reconstruction project is identical to that of the general real estate transaction market. Therefore, the "market price" under Article 48 (4) of the Multi-Family Building Act shall be deemed to be the exchange value in the market formed after the rebuilding resolution, that is, the actual transaction price formed through the real estate brokerage office (in common sense, the market price shall be formed by adding so-called reconstruction premium to the normal land price according to the general situation of land use).

Meanwhile, according to Articles 2 subparag. 9 (b) and 19 (1) of the Urban Improvement Act, “owner of land, etc., who can become a partner of a housing reconstruction project” should be “owner of a building and its appurtenant land” in the rearrangement zone. The Defendants are those who own only the land in the rearrangement zone, and thus cannot become a partner of the housing reconstruction project.

Taking account of these legal principles and circumstances, there is no reason to view that each of the instant lands, which were already offered for passage of neighboring residents, was included in the rearrangement zone site, is out of the existing situation of mitigation solely on the ground that the value of exchange is considerably reduced. Moreover, unlike the site of a house (building and its appurtenant land) owned by a person qualified as an association member in a rearrangement zone, the Defendants holding each of the instant lands, unlike the site of a house owned by a person eligible as an association member, have no capacity to become an association member. As such, the market price after rebuilding resolution, after the rebuilding resolution, shows a significant difference between the site of a house and the site of a house. Therefore, it is difficult to accept Defendant 2, etc.’s assertion that each of the instant lands, as a reconstruction project, is a road on the sole ground of

In addition, the appraiser calculated the difference in individual factors by comparing general factors, such as the comparison standard and the horizontal conditions, access conditions, environmental conditions, land conditions, administrative conditions, etc. of each land of this case, and then calculated the difference in individual factors by taking into account the appraisal example of the neighboring area, the gap between the officially announced land price and the published land price, three neighboring areas transaction cases, and the level of the quotation. This calculation procedure seems to be in accordance with the intent of reflecting the market price of the transaction world as much as possible. Furthermore, the appraiser argued that the market price of neighboring similar land was already reflected in the method of assessing the development gains as the road as well as the method of assessing the land price by the implementation of a reconstruction project.

Ultimately, comprehensively taking account of the above, the method of assessing the site is deemed to have been excessively assessed by failing to take into account the transactional factors such as the current status of the use of each land of this case and the acquisition of membership status. On the other hand, it is reasonable to deem that the method of assessing each land of this case as a road is reasonable to properly reflect the market price of each transaction of this case. Therefore, it is reasonable to evaluate each land of this case as

C. Sub-decision

Due to the exercise of the claim for sale, the buyer's obligation to pay the price equivalent to the market price and the seller's obligation to transfer the ownership transfer and the seller's obligation to deliver the real estate.

Therefore, Defendant 1: (a) performed the above 171,360,00 won and the above 10.2 on April 2, 2012 with respect to the land of this case; (b) transferred the above 18,160,00 won and the above 20.1 on March 9, 2012; (c) transferred the above 379,260,000 won and the above 30.1 on the land of this case; (d) transferred the above 10/10 on the land of this case to the Plaintiff 2; and (e) transferred the above 30/10 on the land of this case to the Plaintiff 30; and (e) transferred the above 9/10 on the land of this case to the Plaintiff 2; and (e) transferred the above 379/260,000 won and each of the above 10/10 on the land of this case to the Plaintiff 3; and (e) transferred the above 140/60.1 on the land of this case

3. Conclusion

Therefore, the plaintiff's claim against the defendants shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, and it is so decided as per Disposition with the assent of all participating Justices on the first instance judgment.

[Attachment]

Judges Lee Young-young (Presiding Judge)