Whether there is a legal interest in seeking revocation of the pre-use inspection disposition under the former Housing Act (negative)

Article 29(3) of the former Housing Act (amended by Act No. 11061, Sept. 16, 201; hereinafter “former Housing Act”) provides that “where a project proprietor is unable to undergo a pre-use inspection pursuant to paragraph (1) due to bankruptcy, etc., a person who has guaranteed the construction of the relevant house or a prospective resident may undergo a pre-use inspection, as prescribed by Presidential Decree.” Since the aforementioned provision is anticipated to incur damages due to a project proprietor’s failure to obtain project approval due to the bankruptcy, etc., it would result in the prospective resident’s failure to move into a pre-use inspection and gain profit from a house constructed after undergoing a pre-use inspection pursuant to relevant statutes.”

However, since the disposition of usage inspection is limited to allowing the use of and profit from a building, even if the disposition of usage inspection was taken, the mere fact does not justify the fact of violating the relevant laws and regulations, such as the defects in the building or the Building Act. Furthermore, even if the disposition of usage inspection of a building is revoked, it is merely impossible to use a building that goes back to the previous state of usage inspection, and it does not immediately mean to eliminate or supplement the defect condition of a

In addition, since occupants or prospective occupants may claim and prove the legal relations and defects arising from a contract for sale in lots without cancelling a pre-use inspection, etc. through civil litigation, they can obtain remedies for the removal and supplementation of defects from the project proprietor, etc., it cannot be said that the legal status changes depending on the cancellation of the pre-use inspection disposition, and even if the former Rules on Housing Supply (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 292, Oct. 8, 2010) provide for the provisions related to the payment of occupancy fees and housing supply contracts, it

Rather, there is a disposition of pre-use inspection on a house so that prospective occupants can move into a house and use the house, which is generally beneficial to prospective occupants, and multiple legal relations are formed based on the pre-use inspection disposition, such as the sale or lease of a house to a third party, and the provision of a collateral. If some occupants or prospective occupants seek revocation of the pre-use inspection disposition on the ground of individual disputes arising between the project undertaker and the project undertaker, etc., the situation may arise that is contrary to the interests of the majority trusted in the disposition. Unlike the case of an application for pre-use inspection under the former Housing Act, there is no provision to seek revocation of the pre-use inspection disposition on the application of the project undertaker or prospective occupants, etc.

Therefore, considering these circumstances comprehensively, occupants or prospective occupants under the former Housing Act have no legal interest in seeking revocation of the pre-use inspection.

Article 29(3) of the former Housing Act (Amended by Act No. 11061, Sep. 16, 2011); Article 26 of the former Rules on Housing Supply (Amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 292, Oct. 8, 2010); Article 12 of the Administrative Litigation Act

Supreme Court Decision 93Nu20481 Delivered on January 14, 1994 (Gong1994Sang, 738) Supreme Court Decision 2006Du18409 Delivered on April 26, 2007

See Attached List of Plaintiffs (Law Firm Squa Law Firm, Attorneys Yu Won-kwon et al., Counsel for the plaintiff-appellant)

Yongsan Market (Law Firm LLC, Attorneys Kim Dai-soo et al., Counsel for the plaintiff-appellant)

Han-ri Development Co., Ltd. (Law Firm LLC, Attorneys Park Il-ju et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2011Nu15314 decided October 25, 2011

All appeals are dismissed. The costs of appeal, including the part resulting from supplementary participation, are assessed against the plaintiffs.

The grounds of appeal are examined.

1. A third party, who is not the direct counter party to an administrative disposition, is entitled to file a revocation lawsuit where the interests protected by law are infringed by the pertinent administrative disposition, and the decision of propriety thereof is possible. The legal interests referred to in this context refer to cases where there are individual, direct and specific interests protected by the relevant laws and regulations and relevant laws and regulations (see, e.g., Supreme Court Decision 2003Du2175, Aug. 16, 2004).

2. Article 29(3) of the former Housing Act (amended by Act No. 11061, Sept. 16, 201; hereinafter the same) provides that “If a project proprietor is unable to undergo a pre-use inspection pursuant to paragraph (1) due to bankruptcy, etc., a person who has guaranteed the construction of the relevant house or a prospective occupant may undergo a pre-use inspection, as prescribed by Presidential Decree.” Since the foregoing provision is anticipated to cause damages due to a project proprietor’s failure to obtain approval due to the bankruptcy, etc., it would result in the prospective occupant’s failure to move into the relevant house, and thus, it also allows prospective occupants to use and benefit from a house constructed after undergoing a pre-use inspection pursuant to relevant statutes.”

However, since a pre-use inspection is conducted to allow the use and profit-making of a building, the mere fact that the pre-use inspection of the building was conducted does not justify the fact of violating the relevant Acts and subordinate statutes, such as the Building Act, and even if the pre-use inspection of the building is revoked, it merely makes it impossible to use the building before the pre-use inspection, and it does not immediately remove or supplement any defect in the building (see Supreme Court Decisions 93Nu20481, Jan. 14, 1994; 2006Du18409, Apr. 26, 2007; 2006Du18409, etc.). Furthermore, since the pre-use inspection or pre-existing resident's pre-use inspection was conducted without cancelling the pre-use inspection, it would not change the legal status of the pre-existing resident in the pre-use inspection or seek cancellation of the pre-use inspection by asserting and proving the legal relations and defects arising from the pre-use inspection, etc.

Therefore, considering these circumstances, occupants or prospective occupants under the former Housing Act have no legal interest in seeking revocation of the pre-use inspection.

3. The lower court rejected the instant lawsuit on the ground that the Plaintiffs, who are in the position of the buyer, sought the revocation of the instant disposition on the instant apartment on the ground that there were defects such as construction defects, etc. in the instant apartment, as alleged by the Plaintiffs, on the ground that it is difficult to view that the Plaintiffs had a direct and specific legal interest protected by the relevant laws and regulations, etc., for the reasons indicated in

4. Examining the reasoning of the judgment below, the above determination by the court below seems to be based on the legal principles as seen earlier, and there were no errors in the misapprehension of legal principles as to the interpretation of the former Housing Act provisions, such as legal interests seeking the revocation of administrative disposition, the legislative intent and legal interests of the former Housing Act, Article 29 of the former Housing Act, and Article 26 of the former Rules on Housing Supply.

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

[Attachment] List of Plaintiffs: omitted

Justices Ko Young-han (Presiding Justice)