The legislative intent of Article 19-2 of the former Housing Site Development Promotion Act and Article 13-3 of the Enforcement Decree of the same Act / The validity of a sales contract for the sale of a housing site that requires the seller to resell the housing site to be supplied in the future before entering into a housing site supply contract as it is, and whether the seller is obligated to cooperate with the procedure of “project implementer’s consent” with respect to the housing site to

Articles 1, 19-2, and 31-2 of the former Housing Site Development Promotion Act (Amended by Act No. 10303, May 17, 2010); Article 13-3 of the former Enforcement Decree of the Housing Site Development Promotion Act (Amended by Presidential Decree No. 23113, Aug. 30, 201);

Plaintiff (Attorney Park Young-young et al., Counsel for the plaintiff-appellant)

Defendant

Suwon District Court Decision 2016Na73627 decided April 12, 2017

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of appeal are examined.

1. According to Articles 19-2 and 31-2 of the former Housing Site Development Promotion Act (amended by Act No. 10303, May 17, 2010; hereinafter “Housing Site Development Promotion Act”), a person supplied with a housing site created pursuant to the Housing Site Development Promotion Act may not resell the housing site as it is without using it for the purpose for which the housing site is supplied until the time when the transfer of ownership is registered: Provided, That this restriction may not apply in cases prescribed by the Presidential Decree, and if the housing site is resold in violation of such restriction, the relevant juristic act shall be null and void and subject to criminal punishment. Meanwhile, according to the former Enforcement Decree of the Housing Site Development Promotion Act (amended by Presidential Decree No. 2313, Aug. 30, 201); the “cases prescribed by the Presidential Decree” in the proviso to Article 19-2 (1) means cases where the purchaser obtains consent from the implementer because he/she falls under any of subparagraphs 1 through 9; the “cases prescribed by the Presidential Decree” shall be subject to the first sale of the housing site and public works under the Housing Site Development Promotion Act, etc.

In full view of such provisions of the Housing Site Development Promotion Act and the legislative purport of the Housing Site Development Promotion Act for the purpose of contributing to the stabilization of national residential life and the improvement of welfare by prescribing special cases concerning the acquisition, development, supply, and management of housing sites necessary for housing construction in order to resolve the housing shortage in urban areas, in principle, the Housing Site Development Promotion Act prohibits in principle the resale of housing sites created under the Act not later than the time when the transfer of ownership is registered. However, in light of the circumstances of the supply of housing sites, if it is necessary to give an opportunity to sell the right to purchase housing sites before the transfer of ownership is registered or if there is no concern about speculative transactions in light of the use of the housing site in question, parties to a resale contract, reasons for conclusion of a resale contract, resale price, etc., and the purport of the provision of the Enforcement Decree of this case requires the prevention of an application for supply of housing sites for the purpose of acquiring the housing site for the purpose of acquiring the housing site to be supplied to the actual users of the housing site as intended for the use thereof. Accordingly, it should be viewed that such consent

Therefore, the phrase “the consent of the implementer” stipulated by the Enforcement Decree of the instant case as the special requirement for the restriction on resale is premised on the conclusion of a housing site supply contract with respect to a housing site developed in accordance with the Housing Site Development Promotion Act. Even if the sale and purchase contract with the intent to resell the housing site to be supplied in the future before the conclusion of the said housing site supply contract was concluded, it is impossible for the implementer to consent to the sale and purchase contract for the housing site so that it is null and void and it is reasonable to interpret that the seller is not obliged to cooperate with the

2. Review of the reasoning of the first instance judgment cited by the lower court reveals the following facts.

(a)the Korea Land and Housing Corporation and the Gyeonggi-do si Corporation jointly implemented the development project for the Goduk-si internationalization planned district with the aim of members of Pyeongtaek-si, and the housing owned by the Defendant was included in the project area;

B. On February 9, 2010, the Defendant entered into a sales contract with the Plaintiff with the content that if the Defendant was selected as a person to be supplied with the said housing site for migrants, the Defendant would sell the ownership of the said migrants’ housing site to the Plaintiff at KRW 50 million (hereinafter “instant sales contract”). At the time, the Defendant did not obtain consent from the implementer regarding the instant sales contract.

C. Around January 2015, the Defendant was selected as a person subject to supply of the said development project’s housing site, and entered into a sales contract with the Gyeonggi-do construction company on May 24, 2016 (hereinafter “instant sales contract”).

3. Examining these facts in light of the legal principles as seen earlier, the instant sales contract constitutes a contract under which the migrants created under the Housing Site Development Promotion Act will resell the housing site as they are before the transfer of ownership. Since the Defendant concluded a contract without the consent of the implementer before entering into the contract with the implementer, it becomes null and void. The Defendant is not obliged to cooperate with the application procedure for the consent to resell the housing site from the implementer, and even if the Defendant was supplied with the housing site by the instant sales contract, the mere fact alone does not change.

Nevertheless, by citing the reasoning of the judgment of the court of first instance, the court below determined that the sales contract of this case was in a state of flexible invalidation that can be retroactively effective upon the operator’s ex post consent, and on that premise, it held that the Defendant is liable to cooperate with the Defendant for the validity of the sales contract of this case pursuant to the sales contract of this case. Thus, the court below held that the Defendant is liable to implement the procedure of applying for the consent to resale for changing the buyer’

Such judgment of the court below is erroneous in the misunderstanding of legal principles as to the validity of resale of migrants who violated Article 19-2 of the Housing Site Development Promotion Act, the interpretation of "the consent of the implementer" as stipulated in the Enforcement Decree of this case, and the validity of sale contract of sale of migrants housing site without the consent, which affected the conclusion of the judgment. The

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)