[Defendant-Appellee] Plaintiff (Law Firm Gyeong, Attorney Doh-ho, Counsel for defendant-appellee)

Scattering East Forest Housing Association (Law Firm Democratic Law, Attorneys Gyeong-won, Counsel for defendant-appellant)

The deceased Nonparty’s taking-over of the lawsuit (Appointed Party) 2

October 14, 2010

Suwon District Court Decision 2008Gadan112328 Decided January 14, 2010

1. The appeal filed by the Defendant Scattering East Forest District Housing Association shall be dismissed;

2. Costs of appeal shall be borne by the Defendant Fiberal Winter Zone Housing Association;

Purport of claim

Claim against the primary defendant

The Defendant Franchi Forest Housing Association shall receive KRW 15,35,00 from the Plaintiff at the same time, and shall implement the procedure for the registration of ownership transfer on October 20, 2007 with respect to the real estate indicated in the attached list to the Plaintiff.

Claim against the Preliminary Defendant

With respect to each one-six portion of the real estate listed in the attached list, the Defendant (Appointed Party), 2, 3, 4, 5, and 6, at the same time, the Defendant (Appointed Party) received KRW 2,55,833 from each of the Defendant (Appointed Party), 2, 2, 3, 4, 5, 5, and 6, and the procedures for the registration of ownership transfer for the reason of the sale contract as of February 25, 2006, and the Defendant (Appointed Party) 2, 2, 2, 3, 4, 5, 6 will implement the procedures for the registration of ownership transfer for the reason of the sale contract as of October 207 by the Plaintiff.

Purport of appeal

The part against the primary defendant in the judgment of the first instance shall be revoked. The plaintiff's claim against the primary defendant shall be dismissed.

1. Basic facts

This Court's reasoning is as follows, except for the addition of the following claims, and this Court's reasoning is the same as the corresponding column of the judgment of the court of first instance.

F. On July 29, 2009, the Nonparty: (a) died on the part of July 29, 2009, and (b) succeeded to the property of each Nonparty by Defendant (Appointed Party) 2, 2, 4, 5, and 6 (hereinafter collectively referred to as “Defendant (Appointed Party 2, etc.”); (c) succeeded to the property of each Nonparty.

2. Determination as to the plaintiff's primary claim against the defendant union

A. Determination on the cause of the claim

According to the above facts, the defendant union is obligated to implement the registration procedure for transfer of ownership on the apartment of this case by the plaintiff on October 20, 2007 at the time of receiving the payment of KRW 15,335,00 (306,375,000) for the sale price paid by the plaintiff to the defendant union - the sale price of KRW 242,440,000 paid by the non-party to the defendant union - the sale price of the apartment of this case paid by the non-party to the defendant union - the sale price of the apartment of this case by the plaintiff to the plaintiff as of October 20, 207.

B. Determination on the argument of the defendant union

(1) The allegation that the instant sales contract is invalid

The defendant union asserts that the sales contract of this case is null and void as it goes against the Housing Act and the Enforcement Decree of the Housing Act.

The apartment building of this case is located in the Seoul Metropolitan Area with the location of fugitive Dong during Ansan-si, and according to Article 41-2 (1) of the former Housing Act and Article 45-2 (1) of the former Enforcement Decree of the Housing Act, since the period of restriction on resale is from the date when a housing supply contract can be concluded for the first time through recruitment of occupants until the date of completion of the registration of ownership transfer for the relevant house (the building in question, where the registration of ownership transfer is made only for the building), the sales contract of this case was completed within the period of restriction on resale. However, according to the evidence evidence No. 1, the fact that the apartment of this case was cancelled on November 7, 2008 for the Ansan-si where the apartment of this case is located, and the apartment of this case is no longer prohibited resale according to the above speculative zone cancellation measure, the plaintiff can assert the legal relationship between the non-party who was the initial purchaser and the business proprietor (see Supreme Court Decision 95Da8485, Jul. 84, 1997).

(2) The allegation that the Plaintiff’s succession to the Nonparty’s membership is null and void.

The defendant association asserts that the contract for the sale of this case under the premise that the plaintiff succeeded to the status of the non-party member is invalid, since the plaintiff did not undergo such circumstances after obtaining approval from the defendant association for the membership of the defendant association.

However, as seen earlier, even if the Plaintiff obtained the approval of the Defendant Union regarding the succession to the status of a union member, the new union member who changed the membership did not obtain the approval can exercise his right as a union member regardless of whether to grant the approval (see Supreme Court Order 2002Da12, Mar. 11, 2002). Thus, the above assertion by the Defendant Union is without merit.

(3) Claim that the sales contract concluded with the Nonparty was cancelled

The defendant association asserts that the sales contract for the apartment of this case concluded between the non-party and the defendant association was automatically cancelled on the grounds that the non-party's sale price was not paid twice or that the non-party's withdrawal letter was cancelled upon the receipt of the defendant association, so the defendant did not have a duty to complete the registration of ownership transfer

In light of the records of evidence No. 2-1, the non-party is recognized as having agreed that if the non-party did not pay the contributions at least twice consecutively from the defendant association at the time of concluding the sales contract for the apartment of this case, the contract may be immediately cancelled without demanding the payment thereof. However, the defendant association expressed its intention to cancel the contract on the ground that the non-party's contribution was unpaid at least twice as a non-party's contribution was unpaid at the reference document of Jan. 8, 2010. The time when the defendant association expressed its intention to cancel the contract or the time when the defendant association received the non-party's withdrawal notice of the non-party's member's withdrawal from the association was concluded between the plaintiff and the defendant association. Accordingly, the non-party already transferred its contractual status to the plaintiff, and the plaintiff's new agreement was concluded between the plaintiff and the defendant association, and it cannot be viewed as having asserted that the non-party association's withdrawal from the special general meeting of 10.108 percent after the plaintiff's withdrawal from the association.

(4) Claim that the sales contract concluded without a general meeting resolution is null and void

The defendant union did not succeed to the status of the union members, but concluded the sales contract in this case by arbitrarily selling an unsold apartment that occurred as a result of the withdrawing union members. In doing such act of disposal, the resolution of the general meeting of the union members is required. The plaintiff asserts that the sales contract in this case was null and void since the resolution of the general meeting was not made in entering into the sales contract

On the other hand, the apartment of this case is not a voluntary apartment, but a member apartment of the apartment of this case, and the plaintiff succeeded to the status of the member of the defendant's association. Therefore, the above argument of the defendant's association, which is premised on the disposal of the apartment of the voluntary apartment of this case, is without merit without

3. Determination as to the plaintiff's conjunctive claim against the defendant union and the defendant (appointed party)

On the premise that the status of the non-party member is not succeeded to the plaintiff and the primary claim against the defendant union is dismissed, the defendant union received KRW 2,55,833 from the defendant 2, etc., and at the same time the defendant 2, etc. paid KRW 2,55,833 from the defendant 2, etc., the defendant union is obligated to execute the procedure for ownership transfer registration for the reason of the sale contract as of February 25, 2006, and the defendant 2, etc. (appointed party) are obligated to execute the procedure for ownership transfer registration for the reason of the sale contract as of October 20, 207. However, as long as the plaintiff accepted the primary claim against the defendant union as seen above, the plaintiff's conjunctive claim against the defendant union is not logically incompatible without any need to examine it.

4. Conclusion

Therefore, the plaintiff's primary claim against the defendant union is justified, and the judgment of the court of first instance is just, and the appeal against the defendant union is dismissed, and it is so decided as per Disposition.

[Attachment]

Judges Kim Jae-hwan (Presiding Judge)

1) Since the above reference document was not stated in the instant litigation procedure, it shall be deemed that the Defendant union’s expression of intent to terminate the contract was made only by the delivery of the statement of reasons for appeal dated March 5, 2010.

2) The Nonparty’s submission of a written withdrawal from membership after the conclusion of the instant sales contract seems to have been made upon the recommendation of the Defendant Union to transfer its membership status to the Plaintiff. However, the Nonparty’s submission of a written withdrawal from membership does not appear to have been made with the intention to invalidate the sales contract on the instant apartment that was concluded between himself and the Defendant Union.