Korea Housing Guarantee Co., Ltd. (Law Group Members, Attorneys Kim Jong-sung et al., Counsel for the defendant-appellant)

Defendant (Law Firm Hongk, Attorneys Gyeong-sung et al., Counsel for the defendant-appellant)

November 5, 2010

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

It is confirmed that there is no security deposit payment obligation for the refund of down payment and intermediate payment on apartment (water omitted) (water omitted) sale contract against the plaintiff against the defendant of Msan City (hereinafter address omitted) 291,80,000 won.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by comprehensively considering the whole purport of the pleadings in each entry of Gap evidence 1 through 6, Eul evidence 1 through 3, 8, 10, 16, and 18:

A. On March 31, 2006, the Plaintiff entered into a contract on the guarantee of the sale of a multi-family housing unit (hereinafter “instant apartment unit”) with A20,320,000,000 won for an apartment unit (hereinafter “instant apartment unit”) to which A20,320,000, the guarantee creditor is the prospective occupant of the instant apartment unit (hereinafter “instant sales guarantee contract”).

B. On the other hand, on July 21, 2006, the Defendant concluded a sales contract for the apartment of this case (hereinafter “the sales contract of this case”) with Alenna Construction Co., Ltd. with the total supply amount of KRW 418,110,00 (hereinafter “the household of this case”) (=41,800,000, intermediate payment of KRW 292,60,000,000, KRW 7), and the remainder of KRW 83,710,000, out of the down payment of KRW 10,000,000 from Alenna Construction. In addition, Alenna Construction borrowed KRW 10,00,000 from Alenna Construction, the Defendant paid the deposit account of the apartment of this case as part of the down payment of KRW 31,80,000,000 on behalf of the Defendant on the same day.

C. In addition, on August 29, 2006, the Defendant agreed to obtain a loan of KRW 250,000,000 from the Agricultural Cooperatives Federation and the intermediate payment of the instant sales contract, and paid KRW 250,000,000 from the Agricultural Cooperatives Federation to the deposit account of the said sales contract.

D. Meanwhile, the construction of the apartment of this case was changed to a fisheries construction company and Jungto integrated construction company on February 8, 2007 as the construction of the apartment of this case was settled in default on or around January 3, 2009, but the plaintiff was treated as a guarantee accident stipulated in the terms and conditions of the housing sale guarantee contract of this case (the certificate No. 1-2 of this case; hereinafter referred to as the "terms and conditions of the housing sale guarantee of this case") on February 5, 2009, and the method of performing the sale guarantee for the buyers was determined as refund (the down payment and the intermediate payment refund).

E. On April 28, 2009, the Defendant asserted to the Plaintiff that he was the legitimate buyer of the instant household, and filed a claim for refund performance according to the instant sales guarantee agreement.

2. Determination as to the cause of action

(a) Grounds for claims;

The Plaintiff, the buyer of the instant sales contract, at the time, did not actually borrow and pay the down payment as an employee of the Sejong Construction Co., Ltd., who was a buyer of the instant sales contract, and did not actually borrow and pay the intermediate payment in return for the payment of the intermediate payment, etc., which the Defendant concluded the instant sales contract under the name of receiving an intermediate payment loan for use as business funds, and the said sales contract does not constitute a normal sales contract that is subject to a sales guarantee as provided in the Housing Act, etc. Therefore, the Plaintiff asserted that the Defendant did not bear an obligation to refund the down payment and the intermediate payment totaling KRW 291,80,000 ( = down payment 41,80,000 + partial intermediate payment 250,000,000) to the Defendant.

B. Determination

1) The purpose of the Plaintiff’s guarantee system for the sale of housing under the Housing Act and the Enforcement Decree of the same Act is to protect the buyers in good faith who concluded a sale contract in accordance with the procedures and methods prescribed by the Rules on Housing Supply established under the above Act, and paid the sale price. Thus, barring any special circumstance, the Plaintiff is merely liable to refund the sale price paid by a housing construction business operator or to guarantee the sale of housing on the premise that the buyers who actually purchased housing from the housing construction business operator pay the down payment and the intermediate payment, and the Plaintiff cannot be held liable to guarantee the buyers who pretended the sale contract that is not a bona fide buyer (see Supreme Court Decision 2008Da43914, Sept. 25, 2008, etc.).

In this regard, Article 4 (1) 2 of the Terms and Conditions for the Guarantee of Sale of this case provides that the Plaintiff shall not be liable for guarantee in the case of "where the Plaintiff is not a normal contractor, such as a substitute payment, borrowed name, double contract, etc."

2) In light of the fact that the Defendant borrowed KRW 10,00,00 from 10 to 100 from 00,000 and paid as part of the down payment, the remainder of the down payment to 100,000 won was stated as above. According to the evidence No. 8-2, No. 9, 10, 16, 18-2, and the witness’s testimony and arguments, the above funds were part of the funds borrowed from 100,000 won for the purpose of paying the down payment to 100,000 won to 10,000 won for the construction of the apartment complex at 00,000 won after the conclusion of the sales contract at 10,000 won, and the Defendant was not an employee of 10,000,000 won for the construction of the apartment complex at 10,000 won after the conclusion of the sales contract at 10,000 won for the remaining 10,0000,000 won for the testimony.

3. Conclusion

Therefore, the plaintiff's request is dismissed. It is so decided as per Disposition.

Judges Park Jae-young (Presiding Judge)