[1] Whether a reconstruction association, which is a project implementer under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, can immediately file a claim against a person subject to cash liquidation for the registration of ownership transfer of real estate in a rearrangement zone (negative)

[2] Whether a reconstruction association, which is a project implementer under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, can exercise the right to demand sale under Article 39 of the same Act against a person subject to cash settlement (affirmative), and the date when a sales contract is deemed established by exercising a right to demand sale (=the

[1] Article 47 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents merely provides for the duty of cash settlement to owners of land, etc. who do not apply for a parcel of land by a reconstruction association, which is a project implementer, on the basis of the above provision, the reconstruction association cannot immediately file a claim against the person subject to cash settlement for

[2] In principle, a reconstruction association which is a project implementer under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents does not recognize the right to expropriate real estate in a rearrangement zone (see Article 38 of the same Act), and as a matter of principle, a project implementer's right to request sale of land, buildings or other rights within a rearrangement zone is against those who are not members and cannot be immediately applied to those who were members of an association. However, since a person subject to cash settlement loses the status of a person subject to sale due to reasons such as not applying for sale, he/she loses the status of a person subject to sale, and has the status as a person subject to withdrawal from an association, it shall be deemed that a reconstruction association can file a claim for the registration of ownership transfer of real estate within a rearrangement zone against those subject to cash settlement by applying mutatis mutandis Article 39 of the same Act for the right to request sale. However, since the time when the payment of liquidation money for those subject to cash settlement takes place takes place is the same date at which the value of land, buildings or other rights subject to cash settlement is evaluated at the point of time.

[1] Article 47 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents / [2] Articles 38, 39, 46, and 47 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Article 48 of the Act on the Ownership

[2] Supreme Court Decision 2008Da37780 Decided October 9, 2008 (Gong2008Ha, 1544), Supreme Court Decision 2009Da32850, 32867 Decided September 10, 2009, Supreme Court Decision 2009Da81203 Decided August 19, 2010

Large 2 Housing Reconstruction Project Association (Attorney Kim Young-young et al., Counsel for the plaintiff-appellant)

Defendant

Seoul High Court Decision 2010Na14188 decided August 13, 2010

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 47 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”) merely provides for the duty of cash settlement to the owners of land, etc. who are the project implementer, for whom the reconstruction association did not apply for parcelling-out (hereinafter “the owners of land, etc.”) and the reconstruction association may not immediately file a claim against the person subject to cash settlement for the registration of transfer of ownership of real estate in the rearrangement zone, on the basis of

Meanwhile, as a matter of principle, a reconstruction association, which is a project implementer, does not recognize the right to expropriate real estate in a rearrangement zone (see Article 38 of the Urban Improvement Act), and as a matter of principle, a project implementer's right to request sale stipulated in Article 39 of the Urban Improvement Act against a person who is not a member, and cannot be immediately applied to a person subject to cash liquidation who is a member who has agreed to establish an association. However, as a person subject to cash settlement loses his status as a purchaser due to reasons such as not applying for parcelling-out, etc. (see Supreme Court Decision 2009Da81203, Aug. 19, 2010). Thus, it is reasonable to deem that a reconstruction association can file a claim for the registration of ownership transfer against a person subject to cash settlement by applying mutatis mutandis Article 39 of the Urban Improvement Act on the claim for sale.

However, the time when the obligation to pay liquidation money to a person subject to cash liquidation occurs shall be "the day following the end of the period of application for sale" as prescribed by the project implementer pursuant to Article 46 of the Act on the Maintenance of Urban Areas and Dwelling Conditions for Residents (see Supreme Court Decision 2008Da37780, Oct. 9, 2008); the same day as the base point for assessing the value of land, buildings, or other rights which are the object of cash liquidation is the same (see Supreme Court Decision 2009Da32850, 32867, Sept. 10, 209); and so, the day when the conclusion of a sales contract is deemed as the day when the exercise of the right to demand sale against the person subject to cash liquidation is deemed as the same day, and as long as such, the exercise of the right to demand sale should not be governed by Article 48 of the Act on the Ownership and Management of Aggregate Buildings, which is applicable mutatis mutandis under Article 39 of the Act on

According to the records, the plaintiff, a reconstruction association, did not apply for parcelling-out and agreed on a cash settlement for the real estate of this case against the defendant who is subject to cash settlement, but has no outcome, and filed a complaint of this case to the court of first instance to the effect that the defendant is entitled to receive settlement money on September 23, 2008, which is the day following the expiration date of the period for application for parcelling-out, and that is, he is entitled to receive settlement money on September 23, 2008, and at the same time, he is aware of the fact that the complaint of this case was served on the defendant. Accordingly, the defendant, who is subject to settlement by cash settlement from the plaintiff pursuant to the above claim for sale as above by the reconstruction association, is liable to implement the registration procedure for transfer of ownership for the real estate of this case to the plaintiff on September 23, 2008.

Therefore, the court below is just in its conclusion that the plaintiff, a reconstruction association, can immediately file a claim for the registration of ownership transfer of the real estate of this case against the defendant, who is the person subject to cash liquidation pursuant to Article 47 of the Act on the Maintenance of Urban Areas and Dwelling Conditions for Residents. However, it is just in the conclusion that the court below ordered the plaintiff to carry out the registration procedure of ownership transfer of the real estate of this case at the same time with the plaintiff who received liquidation money from the plaintiff, and there is no error in the misapprehension of legal principles as to the duty of ownership transfer registration of the reconstruction association of the person subject to cash liquidation, which affected the conclusion of the judgment (However, the judgment of the court of first instance and the judgment of the court below dismissed the appeal, which pointed out that the ground for registration of the real estate of this case was erroneous as

2. Regarding ground of appeal No. 2

The above argument in the grounds of appeal which misleads the market price of the appraiser of the first instance trial on the real estate of this case is ultimately the purport of disputing the preparation of evidence and fact-finding, which is a fact-finding court, and it is difficult to view that the specific procedure of appraisal by the appraiser of the first instance trial is illegal in light of the circumstances cited by the court below.

3. Conclusion

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

Justices Ahn Dai-hee (Presiding Justice)