[1] The legal nature of a house sale guarantee agreement concluded between a housing construction business operator and a registered business operator under the Housing Construction Promotion Act (=a contract for a conditional third party)

[2] Judicial effect of a housing supply contract concluded in violation of the supply standards under Article 32 of the former Housing Construction Promotion Act and Articles 8(1) and 11 of the former Rules on Housing Supply (effective)

[3] In the case of a housing sale guarantee agreement, whether the seller can claim restitution according to the termination of the contract as the right that the seller can exercise to the registered seller (affirmative)

[1] The registered manager with the construction right under Article 7 (1) 1 of the former Rules on Housing Supply (amended by the Ordinance of the Ministry of Construction and Transportation No. 537 of September 1, 1993) shall be deemed to be a contract for a conditional third party to perform the duty to supply housing under the contract for sale in lots to the occupants who lawfully concluded the contract between the housing construction businessman and the others who have lawfully concluded the contract for sale in lots. If the conditions are fulfilled because the housing construction contractor loses the capacity to complete the construction of the apartment due to the bankruptcy, and the conditions are fulfilled, the occupants may exercise their rights under the existing contract for sale in lots by expressing their intent to the registered manager.

[2] Article 32 (1) of the former Housing Construction Promotion Act (amended by Act No. 4723 of Jan. 7, 1994) provides that a project proprietor shall construct and supply housing in accordance with the terms, methods, procedures, etc. for the supply of housing as determined by the Minister of Construction and Transportation in order to maintain the order of housing. Article 8 (1) of the former Rules on Housing Supply (amended by Ordinance No. 537 of Sep. 1, 1993) provides that a project proprietor shall invite occupants through open recruitment, and if the number of applicants falls short of the number of housing supplied as a result of recruitment, he/she may select occupants on a first-come first-come-served basis among the persons who meet the prescribed requirements, such as the householder who intends to acquire housing for the purpose of moving housing, and Article 11 of the said Rules provides that a person who intends to apply for housing shall attach documents, such as a certified copy of the resident registration, and a certificate of personal seal impression, and Article 52 (1) 2 of the said Rules shall not be subject to criminal punishment.

[3] In a case where a registered housing construction business operator fails to complete the construction of an apartment and cancel the right to collateral security on the site of an apartment, when a registered housing construction business operator enters into a contract for a third party on condition that a housing construction business operator performs the duty to supply a house under the contract for sale in lots on behalf of the registered housing business operator and legally signed the contract with the housing construction business operator, the right to claim restitution for the cancellation of the contract for sale in lots which can be exercised by occupants after they expressed their intent of profit to the registered housing business operator if the construction of the relevant house is delayed or their capacity is lost and the contractual conditions are fulfilled.

[1] Article 539 of the Civil Act, Article 7 (1) of the former Rules on Housing Supply (amended by the Ordinance of the Ministry of Construction and Transportation No. 537 of September 1, 1993) / [2] Article 32 of the former Housing Construction Promotion Act (amended by the Ordinance of the Ministry of Construction and Transportation of January 7, 1994), Articles 8 (1) and 11 of the former Rules on Housing Supply (amended by the Ordinance of the Ministry of Construction and Transportation of September 1, 1993) / [3] Articles 539, 544, and 548 (1) of the Civil Act

[1] [3] Supreme Court Decision 96Da34863 decided Dec. 20, 1996 (Gong1997Sang, 360), Supreme Court Decision 96Da36647 decided Jun. 27, 1997 (Gong1997Ha, 2318), 94Da1890 decided Nov. 7, 1995 (Gong195Ha, 3892), Supreme Court Decision 95Da53965 decided Jul. 26, 1996 (Gong1965Ha, 1965Ha, 3892), Supreme Court Decision 95Da39697 decided Nov. 26, 199 (Gong195Ha, 3892) (Gong1965Da196497 decided Jul. 26, 199)

Plaintiff (Law Firm Sami General Law Office, Attorneys Landscaping-dong et al., Counsel for the plaintiff-appellant)

Stung Construction Co., Ltd. (Attorney Yang-soo, Counsel for defendant-appellant)

Seoul High Court Decision 96Na30412 delivered on January 24, 1997

Supreme Court Decision 96Da7229 delivered on July 9, 1996

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

The grounds of appeal and supplemental appellate brief are also examined as supplement in case of supplemental appellate brief not timely filed.

1. As to part of the first point

According to the reasoning of the judgment below, the court below held that the defendant company, a registered business operator with the construction right under Article 7 (1) 1 of the former Rules on Housing Supply (amended by the Ordinance of the Ministry of Construction and Transportation No. 537 of September 1, 1993; hereinafter the same shall apply)'s implementation on behalf of the non-party Construction Co., Ltd. (hereinafter the non-party company), when the non-party company, a housing construction business operator, fails to complete the construction of the apartment house of this case, shall be deemed a contract for the non-party company with the non-party company for a conditional third party who performs the duty to supply the house under the contract for sale in lots. However, the non-party company lost the ability to complete the construction of the apartment house of this case due to the bankruptcy of the non-party company, and the plaintiff, the tenant company, can exercise its right

In light of the records, the above judgment of the court below is just and acceptable in accordance with the purport of the judgment of remanding this case by the Supreme Court, and there is no error in the misapprehension of the legal principles as to the succession of the rights and obligations of a contractor or a construction company for the purpose of Article 32 of the former Housing Construction Promotion Act (amended by Act No. 4723, Jan. 7, 1994; hereinafter the same shall apply) and Article 7 and 3 of the former Rules on Housing Supply, or the succession of the rights and obligations of a contractor for the purpose of a third party, or failing to exhaust all necessary deliberations. The precedents (Supreme Court Decision 86Meu2336, Jun. 23, 1987) cited by the appellant's legal representative are transferred to another part of the newly constructed construction of a house, and the constructor who has taken over it was changed by the authority of the agency to change the project operator under the Housing Construction Promotion Act, and thus, it is not appropriate to invoke this case

In addition, even if the sales contract for the apartment of this case between the plaintiff and the non-party company was concluded as a substitute for the existing bonds against the non-party company, as long as such contract was lawfully concluded, the plaintiff can exercise its right against the defendant company as a person who has concluded the sales contract with the non-party company (see Supreme Court Decision 95Da12613, Jan. 24, 1997). The grounds for appeal related thereto are all unacceptable.

2. On the second ground for appeal

Upon examining the reasoning of the judgment below in light of the records, we affirm the court below's rejection of the defendant's assertion that the apartment sale contract of this case between the plaintiff and the non-party company constitutes a false declaration of intent that the apartment sale contract of this case was null and void on the grounds as stated in its reasoning, and it is not erroneous in the rules of evidence or in the misapprehension of the legal principles as to false conspiracy

3. As to the remainder of the first point and the third point

Article 32 (1) of the former Housing Construction Promotion Act provides that a project proprietor shall construct and supply housing in accordance with the terms, conditions, methods, and procedures for the supply of housing as determined by the Minister of Construction and Transportation in order to maintain order in the supply of housing. Article 8 (1) of the former Rules on Housing Supply provides that a project proprietor shall invite applicants through open recruitment, and where the number of applicants falls short of the number of housing supplied as a result of recruitment, a tenant may be selected on a first-come first-served basis from among those who meet the prescribed requirements, such as the householder who wishes to acquire housing for the purpose of moving housing, notwithstanding Article 4 (1), and Article 11 of the same Rules provides that a person who intends to apply for the supply of housing shall attach prescribed documents, such as a certified copy of the resident registration which proves that he is the householder, and a certificate of personal seal impression, etc., but Article 52 (1) 2 of the same Rules provides that a housing supply contract shall be subject to criminal punishment for those who violate Article 32 of the same Act, but shall not be deemed to be null and void until 196.5.

According to the reasoning of the judgment below, the court below held that the judicial effect of the sales contract is not denied on the ground that Article 11 of the former Rules on Housing Supply was not attached when the number of applicants falls short of the number of houses supplied by them and the sales contract was not accompanied by a certificate of seal impression and a certified copy of the resident registration which requires the attachment at the time of application for housing supply, and that the judicial effect of the sales contract is not denied on the other hand, even if there is no evidence to acknowledge that the plaintiff is not a person who wishes to acquire a house for the purpose of moving the residence, and that the above decision of the court below is just and it is not erroneous in the misapprehension of legal principles on the former Housing Construction Promotion Act and the former Rules on Housing Supply. The grounds for appeal pointing this out are not acceptable.

4. On the fourth ground for appeal

In this case, if the non-party company fails to complete the construction of apartment and cancel the right to collateral security on apartment site between the non-party company and the non-party company, when the non-party company entered into a contract for a third party conditional to perform the duty to supply housing under the contract for sale in lots on behalf of the non-party company, the non-party company shall naturally include the right to cancel the contract for sale in lots due to the non-performance of the defendant company and seek restitution for the termination of the contract when the non-party company delayed the construction of the house or loses its capacity and the contractual conditions are fulfilled (see Supreme Court Decision 96Da34863 delivered on December 20, 196).

According to the reasoning of the judgment of the court below, the court below held that the defendant company has a duty to implement each procedure for ownership transfer registration as to the share of 1/2 of the apartment units listed in attached Form 1 and 2 of the judgment of the court below, but the defendant company arbitrarily disposed of each of the above apartment units to be supplied to the plaintiff, and completed ownership transfer registration after the completion of the construction work, and the plaintiff's declaration of intent to cancel the above sale contract on October 10, 1995 was delivered to the plaintiff on the ground of the above default of obligation, and the above sale contract was lawfully rescinded, and the defendant company has a duty to return the above sale contract amount of KRW 80,327,440 to the plaintiff as its original state in lieu of payment or payment as a sale price in relation to each of the above apartment units. In light of the records, the judgment of the court below is justified, and there is no error in the misapprehension of legal principles as to the cancellation of the sale contract and restitution. The ground for appeal pointing this out also cannot be accepted.

5. 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)