[1] The meaning of "the act of receiving or allowing others to receive a house by deceit or other unlawful means" under Article 47 (1) of the former Housing Construction Promotion Act

[2] The case holding that, after being selected as a tenant for the national housing under Article 8 of the Special Act on the Compensation for Public Loss and Compensation of Losses, it does not constitute a case where the national housing is resold [1]

[1] Article 47 (1) of the former Housing Construction Promotion Act (amended by Act No. 4530 of Dec. 8, 1992) provides that no person shall be provided with or be provided with a house constructed and supplied under this Act by deceit or other unlawful means, and Article 51 subparagraph 6 of the same Act provides that "the act of receiving or allowing a person to receive a house by deceit or other unlawful means" as referred to in Article 47 (1) means an act of treating a person who is not entitled to receive a house supplied under the same Act (or a person who is not entitled to such a provision) by unlawful means which lack legitimacy, such as pretending that the person is entitled to receive a house supplied under the same Act, and the resale of the house shall not be subject to regulation under the same Act, even if it is not sold in such a way.

[2] The case holding that Article 47 (1) and Article 51 (6) of the former Housing Construction Promotion Act (amended by Act No. 4530 of Dec. 8, 1992) cannot be applied to the apartment in this case, since the apartment was not a procedure to select the tenant pursuant to the "party lottery" under the Rules on Housing Supply, but the tenant was selected pursuant to Article 8 of the Public Compensation for Land Use and Compensation Act, and even if the apartment was sold to a third party after the apartment was selected as the occupant, it cannot be deemed that the apartment was supplied or received by a third party by deceit or other unlawful means.

[1] Articles 47(1) and 51 subparag. 6 of the former Housing Construction Promotion Act (amended by Act No. 4530 of Dec. 8, 1992) / [2] Articles 47(1) and 51 subparag. 6 of the former Housing Construction Promotion Act (amended by Act No. 4530 of Dec. 8, 1992), Article 8 of the Public Compensation and Compensation for Loss

[1] Supreme Court Decision 92Do232 delivered on April 28, 1992 (Gong1992, 785), Supreme Court Decision 92Do3184 delivered on February 26, 1993 (Gong1993Sang, 1121), Supreme Court Decision 93Do2579 delivered on January 14, 1994 (Gong194Sang, 753)

Plaintiff

Korea National Housing Corporation (Attorney Kim Jong-su, Counsel for defendant-appellant)

Suwon District Court Decision 95Na5759 delivered on September 13, 1995

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below acknowledged that the non-party co-defendants of the court of first instance purchased one apartment house in the size of national housing constructed by the defendant as part of the relocation measures pursuant to Article 8 of the Act on Special Cases concerning the Acquisition of Land and Compensation for Loss (hereinafter "Public Special Cases Act"), as the housing owned by the defendant was incorporated into the Gunposi Housing Site Development Zone executed by the defendant around 1991, the non-party co-defendants of the court of first instance sold the status of the above apartment unit to the plaintiff in 24,00,000 on April 25, 1991 and the defendant allocated the apartment unit of this case to the non-party on September 28, 1992. Since the plaintiff concluded the apartment unit sale contract in the name of the non-party with the non-party under the agreement with the non-party in accordance with the above non-party, since the apartment unit of this case was in violation of the period of restriction on resale as a national housing construction promotion plan, the plaintiff's claim of this case cannot be asserted.

Article 47(1)4 of the Housing Construction Promotion Act and Article 43 subparag. 2 of the Enforcement Decree of the same Act prohibit transfer of the status of acquiring a house as above. Meanwhile, Article 38-3(1)1 of the Housing Construction Promotion Act and Article 37(1) of the Enforcement Decree of the same Act prohibit a purchaser of a house or a selected occupant from resale his status or housing within a certain period. As such, the sales contract between the Nonparty and the Plaintiff is not a resale in violation of the provisions on the prohibition of resale, but a transfer of the status of acquiring a house in violation of the prohibition of transfer.

However, Article 47 (2) of the Housing Construction Promotion Act provides that when a person violates the prohibition of transfer, a national housing project owner may invalidate his/her status as eligible to apply for the supply of housing, or cancel a housing supply contract already concluded. Articles 38 (3) and 38-3 (3) of the same Act provide that when a person violates the prohibition of transfer, he/she may recover the ownership of housing by paying the price after subtracting depreciation costs and repair costs from the sale price paid to the transferee by the national housing project owner. Article 51 subparagraph 6 of the same Act provides that the act of transfer in violation of the prohibition of transfer is subject to punishment, and there is no provision on the validity of the act of transfer in violation of the prohibition of transfer. In full view of this, the provision on the prohibition of transfer of national housing is merely a simple regulation and cannot be deemed an effective one, and it cannot be viewed that a national housing contract cannot be asserted between the parties to the national housing project, and the meaning of the provision on the prohibition of transfer of housing cannot be viewed as a valid defense against the transferee of the national housing in question.

Therefore, in this case where the defendant invalidated the status of the non-party entitled to the supply of housing or made it clear that the contract for the sale of the apartment of this case was not cancelled, and it is clearly stated that the plaintiff as the transferee did not claim that the plaintiff paid the price for recovery of the ownership of housing under Article 38-3 (3) of the Housing Construction Promotion Act, and that such measures were not taken, and that the non-party transferred the status of the non-party entitled to the supply of housing in violation of the prohibition of transfer to the plaintiff, the defendant cannot prevent the plaintiff from exercising his status or exercising his right under the above transfer contract.

2. As to the ground of appeal

In the instant case, the lower court determined on the premise that Article 47(1)4 and (2) of the Housing Construction Promotion Act (hereinafter “New Act”) and Article 43 subparag. 2 of the Enforcement Decree of the same Act apply, but the provisions of the above Act were newly established after the amendment by Act No. 4530, Dec. 8, 192. Since the right to sell the instant apartment was transferred on April 25, 1991, the above amended provisions cannot be applicable to the instant case under Articles 1 and 5 of the Addenda of the amended Act. Accordingly, the lower court erred by applying the Act that is not applicable to the instant case.

Therefore, we examine whether Article 47 (1) of the former Housing Construction Promotion Act (amended by Act No. 4530 of Dec. 8, 1992) applies to this case.

Article 47 (1) of the former Act provides that no person shall be supplied with, or shall be supplied with, a house constructed and supplied under this Act by deceit or other unlawful means, and Article 51 subparagraph 6 of the former Act provides that "the act of being supplied with, or allowing to be supplied with, a house by deceit or other unlawful means" as referred to in Article 47 (1) of the former Act means the act of being supplied with a house by a person who is not entitled to be supplied with a house under the above Act (or a person who is not entitled to be supplied with such a house) by fraudulent or other unlawful means, and it shall not be subject to regulation under the above Act even if the house is sold in the same manner (see Supreme Court Decisions 92Do232, Apr. 28, 192; 92Do3184, Feb. 26, 1993; 93Do2579, Jan. 14, 1994).

Thus, as long as the provisions of Article 47 of the new law as well as the provisions of Article 47 of the former Act concerning the resale of this case cannot be applied, the plaintiff can oppose the defendant corporation by the resale of this case. Thus, in rejecting the defendant's assertion, the court below's rejection of the defendant's assertion is erroneous, as seen above, under the premise that the provisions of Article 47 of the new law as to the resale of this case are applied. However, this error does not affect the conclusion of the judgment. The grounds for appeal cannot be accepted.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the defendant who is the appellant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)