(영문) 광주지방법원 2017. 11. 17. 선고 2017가합50343 제11민사부 판결

(a) implement the procedure for the registration of ownership transfer on August 24, 2017 with respect to the portion (a) 1,320 square meters in the ship connected each point of Section 1, 2, 3, 438 square meters in sequence among the annexed drawings of Section 1, 2, 3, 438 square meters in Gwangju Northern-gu, Gwangju Northern-gu;

B. The above land is transferred.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1-b. above may be provisionally executed.

Purport of claim

The same shall apply to the order.

Reasons

1. Facts of recognition;

A. Acquisition of business plans for the plaintiffs' housing construction projects

(1) The Plaintiff A Regional Housing Association (hereinafter referred to as the “Plaintiff Association”) obtained authorization for the establishment of a housing association from the North-gu Seoul Metropolitan City office on November 13, 2015, and obtained authorization for the alteration of the housing association on July 25, 2016.

(2) On September 1, 2016, the Plaintiffs filed an application with the Gwangju Metropolitan City Mayor for approval of the housing construction project plan (hereinafter “instant project plan”) with the content of constructing apartment houses of 888 households and officetels 104 units on the ground of 26,630 square meters (total project area: 33,375 square meters, road area: 6,745 square meters; hereinafter “instant housing construction site”).

(3) On December 22, 2016, the Gwangju Metropolitan City Mayor approved the instant project plan, and publicly announced the approval of the instant project plan on the same day, including the instant housing construction site, as a “A regional housing association apartment site” district unit planning zone, and publicly announced the purport of the determination of a district unit planning zone. On March 1, 2017, the Seoul Metropolitan City announced the topographical map of a district unit planning zone.

(4) The Plaintiffs began to purchase the instant housing construction site prior to obtaining approval of the instant project plan, and purchased private land of 22,570 square meters and State-owned land of 690 square meters as of the date of closing argument, and secure a right to use State-owned land of 2,050 square meters, thereby using the site corresponding to 95.04% [2,570 square meters + 690 square meters + 2,050 square meters + 26,630 square meters + 100 square meters, and 26,630 square meters and less than two decimal places];

The title was secured (see the following 3.a.).

(b) Real estate owned by the defendant;

(1) On March 12, 1983, the Defendant owned the instant land after completing the registration of transfer of ownership on March 12, 1983.

(2) Of the instant land, part 1,320 square meters (hereinafter referred to as “instant site”) connected in sequence each point of Section 1,2, 3, 4 and 1 of the attached drawings are included in the instant housing construction site.

(3) According to the appraiser E’s appraisal result, the market price of the instant land as of March 9, 2017, which is the point of time of appraisal, was assessed as KRW 1,453,818,000 per square meter (1,01,000 per square meter), and there is no collateral security established on the instant land.

C. Transaction consultation and the plaintiffs' claim for real estate

(1) On December 26, 2016, the Plaintiffs (other than a lawsuit, an agreement on trade with the Defendant was reached with an employee and a person who was delegated by the Plaintiffs, through an employee and an employee of the Entertainment City Co., Ltd.; hereinafter the same shall apply) notified the Defendant of the approval of the instant business plan, and requested a trade consultation upon offering the purchase amount of KRW 4,00,000 per square year. However, the Defendant did not enter into a trade consultation upon demanding the purchase amount of KRW 10,00,000 per square year.

(2) On January 11, 2017, the Plaintiffs filed the instant lawsuit at the time of exercising the right to demand sale of the instant land pursuant to Article 22(1)1 of the Housing Act.

(3) The Plaintiffs requested a trade consultation at the time of offering the purchase price of KRW 4,100,00,000 as of January 18, 2017, but the Defendant demanded the purchase price of KRW 10,000 or more per square year, and did not reach a trade consultation.

(4) The Plaintiffs requested a trade consultation at the time of offering the purchase price of KRW 4,100,00,000 as of February 2, 2017, but the Defendant did not enter into a trade consultation at the time of requesting an additional purchase price of KRW 1,80,000,000 for the purchase price of KRW 10,000 or more as of February 2, 201.

(5) The Plaintiffs requested a trade consultation at the time of offering the purchase price of KRW 4,200,000 as of February 14, 2017, but the Defendant demanded the purchase price of KRW 10,000,000 or more as of February 14, 201, and did not reach a trade consultation.

(6) On March 3, 2017, the Plaintiffs requested a trade consultation while explaining that they applied for appraisal of the instant land in the instant lawsuit, but did not reach a trade consultation upon the Defendant’s demand for the purchase price of at least KRW 20,000,000 per square year.

(7) Although the Plaintiffs requested a trade consultation on March 10, 2017, the Plaintiffs did not reach a trade agreement upon the Defendant’s demand for the purchase price of at least KRW 20,000,000 per square year.

(8) Although the instant court proceeded with the first mediation date on April 3, 2017, it did not reach an agreement between the parties. This court notified the Plaintiffs on the same day that the Plaintiffs would pay KRW 2,150,000 to the Defendant as the purchase price, but the Defendant raised an objection against the said decision on April 18, 2017.

(9) On April 24, 2017, May 25, 2017, and May 29 of the same year, the Plaintiffs requested the Defendant to present the desired purchase price, but the Defendant did not present the specific purchase price. However, the Plaintiffs requested a trade compromise upon presenting the purchase price of KRW 6,00,000 as of June 12 of the same year, but did not reach the trade agreement.

(10) On August 23, 2017, the Plaintiffs exercised the right to demand sale only on the instant site; however, the purchase price is equivalent to the appraised value of the instant site (=1,334,520,000 square meters (=1,320 square meters)

1,011,00 won. The purport of the claim and the cause of the claim were reduced by the delivery date of the copy of the application for modification as of August 23, 2017, and the purport of the claim and the cause of the claim were served on the Defendant on August 24, 2017.

(11) This Court proceeds on October 30, 2017 with the second date of mediation but agreed between the parties.

In the absence of agreement.

D. Housing Act provisions

The provisions of the Housing Act relating to this case are as follows:

(1) A person who intends to obtain approval for his/her housing construction project plan pursuant to Article 21 (1) or (3) shall secure ownership of the relevant housing construction site: Provided, That this shall not apply to cases falling under any of the following subparagraphs: Provided, That the same shall not apply where he/she fails to obtain the ownership of the relevant housing construction site after obtaining a request for sale from the owner of the relevant housing site (including cases where deemed pursuant to Article 19 (1) 5) for the determination (referring to the ownership of at least 95 percent in cases of the housing association (excluding any housing remodeling association) of the relevant housing site which carries out a project jointly with a registered project operator pursuant to Article 5 (2); hereafter the same shall apply in this Article, Articles 22 and 23). Where he/she fails to obtain a request for sale from the owner of the relevant housing site and the right to use the relevant housing site after obtaining a request for sale from the owner of the relevant housing site or after obtaining a request for sale from the owner of the relevant housing site for sale under Article 22 or 23:

[Ground of recognition] A.I.D. without dispute; substantial facts in this court; evidence A.1 through 7; evidence A. 12 through 18 (including each of the above subparagraph (a) 3; evidence B-1; appraiser F’s appraisal result; the result of this court’s entrustment of appraisal of the Korea Land Information Corporation; the purport of the entire pleadings

2. Judgment on the main defense of this case

A. In order to exercise the right to demand sale under Article 22(1) of the Housing Act, the Defendant filed the instant lawsuit without going through a trade consultation with the owner of the relevant housing construction site for not less than three months, and thus, the instant lawsuit is unlawful. As such, the instant lawsuit is an unlawful lawsuit.

B. In light of the contents of the provisions of the Housing Act, the structure of the relevant statutes, and the purport of the provisions under the latter part of Article 22(1) of the Housing Act to undergo a prior consultation for a period of not less than three months, the project undertaker who has obtained the approval of the project plan pursuant to Article 15(1) or (3) of

It is reasonable to interpret that a right to demand sale under Article 22(1) of the Housing Act may be exercised from the time three months have elapsed since the date of prior consultation after the date of commencement. However, the latter part of Article 22(1) of the Housing Act only requires prior consultation for a period of three months or more after approval of a project plan, but does not impose any restrictions on the method or deadline for such prior consultation. Thus, such consultation shall not be deemed to have been completed after filing a lawsuit claiming a right to demand sale (see, e.g., Supreme Court Decision 2010Da97068, Nov. 10, 201).

On December 26, 2016, the plaintiffs entered into a trade consultation by notifying the defendant of the approval of the project plan of this case. After the plaintiff filed the lawsuit of this case on January 11, 2017, the plaintiff requested about nine times a lawsuit to the defendant, and the court proceeded with the first mediation procedure. Nevertheless, the plaintiffs submitted to the defendant an application for the implementation of the procedure for the transfer registration of ownership based on the sale of the site of this case and the alteration of the grounds for the claim of this case on August 23, 2017, seeking the delivery of the site of this case, and this is identical to the above facts, which were served on the defendant on August 24, 2017. Thus, the plaintiffs and the defendant did not reach the contract of this case for more than three months after the plaintiff filed the lawsuit of this case, and it cannot be said that the plaintiffs failed to reach the contract of this case during the period of not less than three months as specified in the latter part of Article 22 (1) of the Housing Act.

3. Judgment on the merits

A. Whether the plaintiffs secured the right to use under the Housing Act

(1) According to the evidence Nos. 17 and 18, the plaintiffs among the housing construction sites of this case

Recognizing that each purchase of private land 22,570 square meters of private land and 690 square meters of state-owned land is recognized. According to the statements in the evidence No. 16 and No. 17, among the instant housing construction sites, the head of Gwangju Metropolitan City North Korea, who was entrusted with the relevant affairs, to purchase 1,131 square meters of state-owned land managed by the Ministry of Land, Infrastructure and Transport on October 26, 2016. Of the instant housing construction sites, it is recognized that the head of Gwangju Metropolitan City North Korea, who was entrusted with the relevant affairs, purchased 9 square meters of state-owned land managed by the Ministry of Land, Infrastructure and Transport on October 31, 2016, among the housing construction sites in this case, the Plaintiffs secured a right to use 25,310n (22,570 square meters + 690 square meters + 131 square meters + 919 square meters). This constitutes 10/200 or more of the total housing construction sites in this case.

(2) In calculating the area of the instant housing construction site, the Defendant asserts to the effect that it is unclear whether a buffer green belt of 174 square meters is incorporated among 752 square meters of the relevant housing construction site, which is the relevant housing construction site, is incorporated into a buffer green belt of 74 square meters of the relevant housing construction site, and the division into the instant housing site into the instant housing site and road would be in accordance with the Plaintiff’s arbitrary standards, and thus, the Plaintiffs cannot be deemed to secure the right to use more than 95/10 of the area of the housing construction site as stipulated in Article 2

The key issue of this case is whether the plaintiffs' exercise of the right to request sale under Article 22 (1) 1 of the Housing Act meets the requirements. The housing construction site area referred to in the above provision refers only to the site area to be incorporated into a housing site except road area and buffer green belt area, and the area of buffer green belt is irrelevant to the requirement requirement. Furthermore, the housing construction site area referred to in the above provision is not arbitrarily determined by a person who intends to implement a housing construction project like the plaintiffs, but is not arbitrarily determined by a person who intends to implement a housing construction project, and the project plan approved by a person authorized to approve

As seen earlier, the plaintiffs secured more than 95/100 of the area of housing construction sites calculated by the business plan of this case, which is approved by the Gwangju Metropolitan City Mayor as the person authorized to approve the project plan. Thus, the defendant's assertion on the circumstance that the approval of the business plan of this case was unlawful and invalid or revoked as a matter of course is without merit without any further determination.

B. Whether the plaintiffs' duty to consult is fulfilled

(1) As a requirement for exercising the right to demand sale, “consultations that shall undergo for a period of not less than three months” refers to a specific and substantial consultation between a project proprietor and a housing site owner, and when determining whether such consultation requirements are met, the following should be comprehensively taken into account: (a) whether a project proprietor who has obtained approval for the housing construction project plan presents a sale price or a reasonable ground for its calculation; (b) whether a project proprietor has made efforts to proceed with the consultation; and (c) how a housing site owner has given a certain attitude in consultation (see, e.g., Supreme Court Decision 2011Da101315, 10132, May

(2) On December 26, 2016, the plaintiffs requested a trade consultation, other than litigation, to the defendant about 10 times before being served on the defendant before the copy of the request for change of the purport of the claim and the ground for the claim is served on August 23, 2017 to the effect that the plaintiffs, who notified the defendant of the approval of the project plan of this case and after the commencement of the trade consultation, shall exercise the right to claim sale of the land of this case. The fact that this court conducted the mediation procedure once after the delivery of the copy of the request for change of the purport of the claim and the ground for the claim of this case on August 23, 2017 is as seen above.

In the above facts, the following circumstances revealed in the argument of this case: ① The reasons why the plaintiffs requested a trade consultation to the defendant and the defendant to approve the business plan of this case and discuss the subject of the sale.

In full view of the following: (a) the method of consultation on sale and purchase, and the person in charge’s personal information is deemed to have been sufficiently recognized; (b) although the Defendant’s desired sale price and gap are smaller than the Defendant’s desired sale price, the Plaintiffs specifically presented the desired purchase price in the course of consultation on sale and purchase; (c) the price was lower than, or higher than, the appraisal price per square meter of the instant land; (b) the Defendant did not actively inform the Plaintiffs of the desired sale price upon their request for consultation on sale and purchase; and (c) the Defendant did not make any other response, without having any intention to make an agreement on the transaction with the Plaintiff, so long as the Defendant is not close to the sale price that the appraiser F’s appraisal result is too low; and (d) the Defendant appears to have no intention to hold a consultation on the transaction with the Plaintiff, by serving a copy of the application for change of the purport of the claim and the cause of the claim on August 23, 2017, it is reasonable to deem that the Plaintiffs had undergone specific and substantial trading consultation with the Defendant for three months or longer.

(1) Acceptance of appraisal results

In light of the appraiser’s appraisal result, the appraiser’s appraisal method is respected to the extent that the appraisal method is against the empirical rule or unreasonable (see, e.g., Supreme Court Decision 2011Da103199, Jan. 24, 2013). Accordingly, according to the appraiser F’s appraisal result with respect to the instant land, the market price of the instant site as of March 9, 2017 is KRW 1,01,000 per square meter. The market price around August 24, 2017 when the plaintiffs exercised a right to demand sale is confirmed to be the same amount as the market price around August 24, 2017. Accordingly, the sales price of the instant site is KRW 1,334,520,000 (=1,320 square meters).

(2) Judgment on the defendant's assertion

(A) The Defendant’s appraisal result is an error in the selection of comparative standard land, and an error in similar transaction cases.

The author argues that the market price of the instant land was not properly reflected due to the error that reflected the school evaluation and the error that did not properly reflect the development gains.

(B) The following facts revealed in the argument of this case: ① appraiserF revised the point of time from the basic date to the standard date of appraisal based on the officially announced value of the standard land which is deemed to have similar utility values to the land of this case by the officially announced value of this case; ② the above appraiserF collected and analyzed two adjacent standards used as commercial or apartment sites; ② the above appraiser selected neighboring apartment sites whose utility values are similar to those of the land of this case when the project of this case were implemented; ② the appraiserF, based on the comparison standard of land price, calculated the difference between the land price of this case, conditions of access, environmental conditions, conditions of capture, administrative conditions, and other individual factors such as the price comparison, and then collected and analyzed the appraisal standard of this case based on the comparison factors such as the location, shape, environment, and other factors affecting the price formation; ④ The appraisal standard of this case’s appraisal factors were determined based on the comparison factors such as the appraisal standard of the previous land; ③ the appraisal standard of this case’s appraisal method was determined based on the comparison factors.

It is recognized that the appraisal result is described to the extent that it is possible to identify how it is considered for any reason (see, e.g., Supreme Court Decision 2002Du2727, Jun. 28, 2002); and that it is recognized that it is judged in consideration of the development gains arising from the housing construction project; and that the illegality of the appraisal result claimed by the defendant is merely a subjective circumstance that the appraised value is not adjacent to the desired price for its sale, and thus, it cannot be viewed that there is any error in the appraisal result. This part of the defendant's assertion is without merit.

D. Sub-committee

As seen earlier, the Plaintiffs secured the right to use as stipulated under Article 22(1)1 of the Housing Act, and exercised the right to sell by serving a copy of the claim and the application for modification of the cause of claim on August 23, 2017 after consultation with the Defendant on sale for at least three months. Since the contract was concluded at the market price of the instant site on August 24, 2017, which is the delivery date of a duplicate, between the Plaintiffs and the Defendant, the Defendant is obligated to implement procedures for the registration of transfer of ownership of the instant site and deliver the instant site to the Plaintiffs in accordance with the above contract, and the Plaintiffs are obligated to pay the purchase price to the Defendant according to the above contract, and each of the above obligations is related to simultaneous performance.

Therefore, at the same time the Defendant received KRW 1,34,520,000 from the Plaintiffs, and at the same time, is obligated to take procedures for the registration of ownership transfer and deliver the site of this case to the Plaintiffs on August 24, 2017.

4. Conclusion

Therefore, the plaintiffs' claims are justified, and it is so decided as per Disposition.