Plaintiff 1 and one other

The head of Yeonsu-gu

November 9, 2005

Incheon District Court Decision 2004Guhap3315 Decided May 12, 2005

1. Of the judgment of the first instance court, the part against the plaintiffs falling under the order to revoke below shall be revoked.

2. The Defendant’s imposition of a penalty surcharge of KRW 6,505,00 against Plaintiff 1 on July 13, 200, and the imposition of a penalty surcharge of KRW 3,252,500 against Plaintiff 2, and the imposition of a penalty surcharge of KRW 10,425,00 against Plaintiff 2, respectively, shall be revoked.

3. All costs of the lawsuit are borne by the Defendant.

1. Purport of claim

The Defendant’s imposition of a penalty surcharge of KRW 6,505,00 against Plaintiff 1 and the imposition of a penalty surcharge of KRW 10,425,00 against Plaintiff 2 shall be revoked, respectively.

2. Purport of appeal

The court of first instance rendered a judgment in favor of each of the plaintiffs 2,212,500 won of the disposition imposing a penalty surcharge of KRW 6,505,00 against the plaintiff 1 and the part revoking the disposition imposing a penalty surcharge of KRW 10,425,00 against the plaintiff 2 in excess of KRW 5,212,50,00, which was imposed upon the plaintiff 1. The plaintiffs appealed only against this, the scope of the judgment in favor of the party members is limited to the part against the plaintiffs in the judgment of first instance).

1. Details of the disposition;

A. On August 25, 2001, Plaintiff 1 purchased an apartment of the age of 451 in Yeonsu-gu, Yeonsu-gu, Incheon (dong name omitted 1) (hereinafter “instant apartment of this case”). However, on September 14, 2001, Plaintiff 1 purchased the ownership transfer registration of the said apartment of this case (hereinafter “instant apartment of this case”). On November 29, 2002, Plaintiff 1 entrusted the title of the said apartment of this case to the Nonparty, and completed the registration of ownership transfer again on November 29, 2002.

B. Plaintiff 2 purchased the above age apartment (number omitted 2) (hereinafter “instant apartment”) from the leased company of this case. The ownership transfer registration also was completed on September 14, 2001, under the name of the Nonparty, and was entrusted with the above apartment, and again on November 29, 2002, the registration of ownership transfer was completed in the future of the said Plaintiff.

C. On July 13, 2004, on the ground that the plaintiffs registered under the name of the title trustee pursuant to the title trust agreement in violation of Article 3(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, the defendant imposed a penalty surcharge of KRW 6,505,00 on the plaintiff 1, based on Article 5(1)1 of the same Act, and a penalty surcharge of KRW 10,425,00 on the plaintiff 2 (the court of first instance sentenced the portion exceeding KRW 6,505,00 of the imposition of the penalty surcharge of KRW 6,505,00 against the plaintiff 1 and the portion exceeding KRW 10,425,500 of the imposition of the penalty surcharge of KRW 5,212,500 against the plaintiff 2, but the defendant did not appeal the revoked portion and confirmed at that time.

【Ground for recognition】 The fact that there has been no dispute, Gap evidence 1-2, Eul evidence 1-3, the purport of the whole pleadings

2. Relevant statutes;

It is as shown in the attached Form.

3. Whether the instant disposition is lawful

A. Facts of recognition

(1) The age apartment in Yeonsu-gu Incheon Cheongdong 451 is a "public constructed rental housing" under the Rental Housing Act, which was constructed by the time comprehensive construction corporation, a rental business operator, with the National Housing Fund, around 1994, and consists of 14 square and 19 square and 916 square and multi-family apartments. The mandatory rental period is five years.

(2) However, around November 1997, the creditors of the time comprehensive construction company and the creditors of the time comprehensive construction company constituted a creditor group and established the leasing company of this case on May 19, 1998. After completing the registration of rental business, the leasing company of this case calculated the age apartment 916 households from the time comprehensive construction company as 2,680,000 won per square, and completed the registration of ownership transfer in the future of the leasing company of this case on June 24, 1998.

(3) However, this case’s lease company also held several times from March 200 to July 200 with the lessee of the age apartment house 916 households under the Rental Housing Act to preferentially convert the sale price into that of the non-resident under the Rental Housing Act, but it did not reach an agreement on the sale price of the rental house with the lessee of the age apartment, including the plaintiffs, on several occasions from March 2000 to July 2001. However, according to Article 9(5) of the former Enforcement Decree of the Rental Housing Act (amended by Presidential Decree No. 18312, Mar. 17, 2004; hereinafter the same), Article 3-3 of the Enforcement Rule of the Rental Housing Act (amended by Ordinance of the Ministry of Construction and Transportation No. 253, Aug. 3, 2000; hereinafter the same), if the lessee and the lessee did not reach an agreement on the sale price of the rental house pursuant to Article 2-3 of the former Enforcement Decree of the Rental Housing Act, the period of sale exceeds the rental business operator and the rental business.

(4) Accordingly, the instant rental company decided to sell the apartment complex in installments to another rental business operator, who is not a lessee, and started to provide guidance for soliciting rental business operators related to the sale of the apartment complex. The Plaintiffs, the tenants of rental housing, determined that the instant apartment complex can be “elbs of building in the house” if the apartment complex is sold in installments to another rental business operator under the circumstances that it is not qualified as a rental business operator. As a means to acquire the instant apartment complex, at the time, the lessee was living in the apartment complex as a lessee in the apartment complex in the era and was registered as a rental business operator, and requested the Nonparty, who was qualified as a rental business operator and completed the registration of title transfer in the name of the Nonparty, as seen earlier.

(5) Meanwhile, from April 2001 to November 201 of the same year, the instant leased company sold all the 916 households of the age apartment and completed the registration of ownership transfer to all the 916 households of the age apartment from around April 2001, but thereafter, 305 households of the age apartment again acquired the registration of ownership transfer to the said rental business entity.

(6) After that, the plaintiffs and the non-party et al. were investigated by the Incheon District Prosecutors' Office into violation of the Act on the Registration of Real Estate under Actual Titleholder's Name, but on March 30, 2002, the suspension of indictment was imposed on the grounds that considering the circumstances of the plaintiffs' title trust in light of the circumstances of the title trust.

【Evidence Evidence Nos. 2-3, Evidence Nos. 3-7, Evidence Nos. 8 and 9, the purport of the whole pleadings

B. Determination

(1) The purpose of the Act on the Registration of Real Estate under Actual Titleholder’s Name is to contribute to the sound development of the national economy by preventing anti-social acts, such as speculation, evasion of taxes, and evasion of laws, which abuse the real estate registration system, and by promoting normalization of real estate transactions and stabilization of real estate prices (Article 1 of the Act on the Registration of Real Estate under Actual Titleholder’s Name). Meanwhile, by prescribing matters necessary for the construction, supply, management, and housing rental business of rental housing, the Rental Housing Act aims to promote the construction of rental housing and ensure the stability of national housing life (Article 1 of the Rental Housing Act).

(2) Therefore, in light of the facts and result of the title trust agreement, the Plaintiffs were the tenants without any houses, who were in the status of preferential sale conversion pursuant to the relevant laws and regulations at the time regarding the apartment complex of this case, which is a lessee without any houses. However, due to the restriction on the sale price of publicly constructed housing prescribed by the Rental Housing Act, the apartment of this case was paid and acquired to a rental business operator at a price higher than the sale price prescribed by the relevant Acts and subordinate statutes. The Plaintiffs already terminated the title trust before one year and six months before the instant disposition, and completed the registration of ownership transfer in the future, and thus, the Plaintiffs did not seek unfair profits by avoiding legal restrictions such as tax evasion. Accordingly, the Plaintiffs’ completion of the registration of ownership transfer in the future of the apartment of this case pursuant to the title trust agreement constitutes an unlawful act of violating the Act on the Acquisition of Real Estate under the Act on the Acquisition of Real Estate under Actual Titleholder’s Name or the Act on the Acquisition of Real Estate under which the Plaintiffs did not enter into a rental business operator’s own jurisdiction or the Act on the Acquisition of Real Estate.

4. Conclusion

Therefore, all of the plaintiffs' claims seeking the cancellation of the disposition of this case are justified, and the judgment of the court of first instance is unfair because it has different conclusions, and it is so decided as per Disposition by cancelling the disposition of this case.

Judges Lee Sung-sung (Presiding Judge) (Presiding Judge)