Whether an agreement contrary to the prohibition provisions of Article 39(1) of the former Housing Act is naturally null and void, solely based on the provisions of Article 32(5) of the former Housing Act and Article 38(1) of the former Enforcement Decree of the Housing Act regarding the qualification of a member of a housing association, which provides for the qualification of a housing association member (negative) and whether an agreement contrary to the prohibition provisions of Article 39(1) of the former Housing

Article 32(5) of the former Housing Act (amended by Act No. 9405 of Feb. 3, 2009; hereinafter “former Housing Act”) that provides for the qualification standards for members of a housing association in the housing association authorized, and Article 38(1) of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 21159 of Dec. 9, 2008; hereinafter “former Housing Act”) cannot be deemed as a member of the housing association as a matter of course to lose his/her qualification. The prohibition provision of Article 39(1) of the former Housing Act is merely a simple regulation, but cannot be deemed as an effective provision, and thus, the agreement cannot be deemed as null and void as a matter of course, even if the parties agreed to violate it.

Articles 32(5) and 39(1) of the former Housing Act (amended by Act No. 9405 of Feb. 3, 2009); Article 38(1) of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 21159 of Dec. 9, 2008)

Supreme Court Decision 98Da17954 Decided July 10, 1998, Supreme Court Decision 2007Da55248, 55255 Decided December 13, 2007

[Defendant-Appellee] Plaintiff (Law Firm Gyeong, Attorney Doh-ho, Counsel for defendant-appellee)

Scattering East Forest Housing Association (Law Firm Democratic Law, Attorneys Gyeong-kyeong et al., Counsel for the defendant-appellant)

Suwon District Court Decision 2010Na5417 decided December 9, 2010

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

We examine the grounds of appeal.

1. As to the grounds of appeal Nos. 1 and 2

Article 32(5) of the former Housing Act (amended by Act No. 9405 of Feb. 3, 2009; hereinafter “former Housing Act”) and Article 38(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21159 of Dec. 9, 2008), which provides for the qualification standards for members of a housing association in the housing association authorized, cannot be deemed to be disqualified as a matter of course for a member of a housing association. The prohibition provision of Article 39(1) of the former Housing Act is merely a simple regulation and cannot be deemed to be an effective provision, and thus, the agreement cannot be deemed to be naturally null and void (see, e.g., Supreme Court Decisions 98Da17954, Jul. 10, 1998; 2007Da52485, Dec. 13, 2007; 207; 525, May 525, 205).

The lower court determined, on the grounds indicated in its reasoning, that the sales contract between the deceased Nonparty (hereinafter “the deceased”) and the deceased’s member cannot be deemed as null and void as a matter of course after the Plaintiff agreed to succeed to the status of the deceased’s member and the Defendant, which entered into with the Defendant regarding the apartment as indicated in the attached list of the lower judgment (hereinafter “instant sales contract”) by obtaining recognition as its member from the Defendant.

In light of the above legal principles and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to Articles 32 and 39 (1) of the former Housing Act, or in the omission of judgment, as alleged in the grounds of appeal.

2. As to the third ground for appeal

Based on the evidence of employment, the lower court acknowledged that the date of the conclusion of the instant sales contract was October 20, 2007, and that the deceased submitted a written withdrawal to the Defendant on October 22, 2007 pursuant to the agreement on succession to the status of union members concluded between the Plaintiff and the Plaintiff, and rejected the Defendant’s assertion that the Defendant did not have a duty to complete the registration of ownership transfer on the ground that the sales contract on the instant apartment concluded between the deceased and the Defendant upon receipt of the written withdrawal from union members of the deceased was cancelled.

In light of the relevant legal principles and records, the judgment of the court below is just, and there is no violation of the rules of evidence as alleged in the grounds of appeal.

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 Min Il-young (Presiding Justice)