KSS Fund Co., Ltd. and one other (Law Firm Taedam, Attorneys Gyeong-jin et al., Counsel for the defendant-appellant)

Korea Housing Guarantee Co., Ltd. (Law Firm Seosung, Attorney Seo-sung, Counsel for the plaintiff-appellant)

September 23, 2014

Seoul Southern District Court Decision 2013Gahap104067 Decided December 17, 2013

1. The part against the plaintiffs of the money that orders payment under the judgment of the court of first instance shall be revoked.

The defendant paid 1,016,931,000 won to Plaintiff KS Fund Co., Ltd. and 2,458,690,000 won, and 6% per annum from December 18, 2010 to November 11, 2014, and 20% per annum from the next day to the day of full payment.

2. Each of the plaintiffs' remaining appeals is dismissed.

3. The total costs of the lawsuit are ten minutes, which are one of which are borne by the plaintiffs, and the remainder by the defendant.

4. The portion paid with the amount under paragraph (1) may be provisionally executed.

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff KS fund corporation 1,016,931,00 won, the amount of KRW 2,458,690,000, and each of the above amounts, from August 25, 2010 to the delivery date of a copy of the complaint of this case, 6% per annum from August 25, 2010 to the delivery date of a copy of the complaint of this case, and 20% per annum from the next day to the date of complete payment.

1. Basic facts

A. Before the change on November 26, 2012, Plaintiff KSF Fund Co., Ltd. (hereinafter “KS Fund”) is a project proprietor under Article 2 subparag. 7 of the Housing Construction Promotion Act, who obtained approval of the housing construction plan under Article 16(1) of the Housing Construction Promotion Act, for the following apartment complexes (hereinafter “instant apartment complex”) (hereinafter “instant apartment complex”).

(1) An apartment complex on the Sung-dong 5-2, Sung-dong 195-2, Sung-dong 195-2, Sung-dong, Young-si.

(2) An apartment complex of two complexes on the e- January 1, 201, Sung-dong, Sung-dong, Sung-dong, Sung-dong, Suwon-si.

B. On January 13, 2009, the Plaintiffs entered into a housing sale guarantee agreement with the Defendant on each apartment of this case (hereinafter “each apartment of this case”).

(1) Guarantee period: From the date of approval for public announcement of invitation to the date of registration for ownership preservation (including inspection for use)

(2) A guarantee creditor: A prospective creditor.

(3) Scheduled date of usage inspection: March 31, 2011.

C. On January 13, 2009, at the time of the conclusion of each of the instant sales guarantee contracts, the Plaintiffs entered into a housing sales guarantee agreement with the Defendant with respect to each of the instant sales guarantee contracts (hereinafter “instant housing sales guarantee agreement”). On the same day, the Defendant paid KRW 1,305,036,00 to the Defendant each of the instant sales guarantee contracts, as the guarantee fees under each of the instant sales guarantee agreements, KRW 2,930,842,00 to the Defendant (hereinafter “each of the instant guarantee fees”).

In the event that the agreed person has received a guarantee for the sale of any house prescribed by the rules of your company from your company, he shall faithfully perform his obligation with respect to his return in accordance with any of the following provisions:

· Article 6 Guarantee Fees

(1) In cases of obtaining a guarantee from return, the payment shall be made at the same time at the prescribed rate of return and the guarantee fee calculated in accordance with the calculation method.

· Article 15 Housing Act, etc.

(1) In addition to the matters stipulated in this Agreement, the contract parties and joint and several sureties shall comply with the Housing Act, the Enforcement Decree of the Dong, the Enforcement Rule of the Dong, the Rules on Housing Supply, the articles of incorporation and the regulations

D. On January 14, 2009, the Plaintiffs obtained approval for the announcement of recruitment of each of the instant apartment units from the Yongsan-si mayor (hereinafter “approval for the announcement of recruitment of each of the instant apartment units”) under Article 8(1) of the Rules on Housing Supply.

E. However, the Plaintiffs did not publicly announce the recruitment of occupants pursuant to Article 8(5) of the Rules on Housing Supply.

F. On August 24, 2010, the Plaintiffs expressed their intent to cancel each of the instant guarantee agreements on the grounds that they were unable to publicly announce the recruitment of occupants to the Defendant as to each of the instant apartment units, and that there was no purchaser. On November 3, 2010, the Defendant refused to refund each of the instant guarantee fees to the Plaintiffs on the grounds as indicated below.

Even if the guarantee creditor does not exist within the guarantee period, the contract itself is valid, and the guarantee creditor is still likely to occur until the approval for the announcement of invitation of residents is cancelled, and the company has guaranteed the risk of the exercise during the guarantee period, so it can claim the sale guarantee fee, which is the consideration, to the executor.

G. On the other hand, on October 28, 2010, on the other hand, on Plaintiff KS funds, Plaintiff KS fund’s apartment complex of this case as of August 19, 2010, and on December 17, 2010, Plaintiff Switzerland Construction applied for the cancellation of the approval for each of the instant announcement of invitation of invitation of invitation of invitation of invitation of invitation of the instant case on the apartment complex of this case on December 15, 2010.

H. According to the settlement as indicated below, the Defendant returned KRW 288,105,00 as to the Plaintiff’s KS fund, and KRW 472,152,00 as to the Plaintiff’s Switzerland Construction, respectively, respectively, in the column for “amount returned,” which is the remainder other than each corresponding amount (hereinafter “each corresponding amount”).

In the table (unit: 1,00 won) of this case, each guarantee fee for the guarantee period for the settlement of guarantee fees of the defendant from January 14, 2009 to April 30, 201, 1,305,036 from January 14, 2009 to October 28, 2010; 28,105; 2,000,000 won from January 14, 201 to April 30, 2009 to April 30, 2011; 2,930,842 from January 14, 2009 to April 30, 200;

I. The provisions of the Housing Act, the Enforcement Decree of the Housing Act, the Rules on Housing Supply, etc. related to each of the instant sales guarantee contracts are as follows.

1) The former Housing Act (amended by Act No. 9405 of Feb. 3, 2009)

Article 77 (Duties)

(1) The Korea Housing Guarantee Company shall carry out the following business in order to achieve its objectives:

1. Guarantee for the parcelling-out and defect repair of the housing constructed and supplied by the project undertaker, and other guarantee business prescribed by Presidential Decree;

(2) Matters necessary for performing the duties under paragraph (1) shall be prescribed by Presidential Decree.

2) The former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 23665, Mar. 13, 2012)

· Article 106 (Kinds of Guarantee and Guarantee Fees)

(1) The types of guarantees that the Korea Housing Guarantee Company may carry on pursuant to Article 77 (1) 1 of the Act shall be as follows:

1. Guarantee for parcelling-out: The following guarantees to be granted where the housing are built by the project undertaker (including the joint project undertaker under Article 12) by obtaining approval of a project plan pursuant to the main sentence of Article 16 (1) of the Act (including the incidental facilities and welfare facilities; hereafter the same shall apply in this Article), or where the housing with 20 or more households and the facilities other than the housing are built as a same structure without obtaining approval of a project plan pursuant to Article 15 (2) (where the housing with 20 or more households and the facilities other than the housing are built as a same structure without obtaining approval of a project plan pursuant to Article 15 (2), only the guarantee under item

(a) Guarantee for parcelling-out of housing: Guarantee liable for carrying out a parcelling-out of the relevant housing (including an inspection for use, approval for use under Article 22 of the Building Act, and registration of ownership preservation) or the refund of the paid down payment and intermediate payment (limited to where at least 2/3 of occupants desire; hereinafter the same shall apply in item (b)) where a project proprietor becomes unable to carry out a parcelling-out

(2) Guarantee fees, etc. received by the Korea Housing Guarantee Company from users of the relevant company shall be prescribed by the articles of incorporation.

(3) The Korea Housing Guarantee Company may determine and implement terms and conditions concerning the detailed details of various guarantees it provides, the scope of responsibility, conditions, etc.

3) former Rules on Housing Supply (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 225, Feb. 23, 2010)

Article 7 (Timing and Conditions for Invitation of Residents)

(1) Where a project operator (where a landowner is a registered project operator and a joint project operator pursuant to Article 12 of the Enforcement Decree of the Housing Act (hereinafter referred to as the "Decree"), referring to a registered project operator who is the joint project operator; hereafter the same shall apply in this Article) meets the following requirements, he/she may recruit occupants simultaneously with

2. It shall obtain a sale guarantee under Article 106 (1) 1 of the Decree (hereinafter referred to as "sale guarantee") from an institution falling under any of the following items:

(a) The Korea Housing Guarantee Company established under Article 76 of the Act;

Article 8 (Procedures for Invitation of Residents)

(1) When a project undertaker intends to recruit occupants, he/she shall open recruitment. In such cases, a project undertaker who is not the State, a local government, the Korea National Housing Corporation, or a local public corporation shall obtain approval from the head of a Si, etc. by submitting the following documents, and a project undertaker who is the State, a local government, the Korea National Housing Corporation

1. Proposal for public announcement of invitation;

2. A certified copy of the register of the site on which the house concerned is to be constructed (referring to that issued within seven days before the application date for approval);

3. Written guarantee, official certificate, construction process confirmation, and written consent to the use of site under Article 7 (limited to the relevant person);

(4) Where the head of a Si, etc. approves a proposal for the public announcement of invitation of residents pursuant to paragraph (2), he/she shall notify the Minister of Land, Transport and Maritime Affairs, computerized management agencies, persons entrusted with the operation and management of the National Housing Fund (referring to the Fund trustee entrusted with the affairs concerning the operation and management of the National Housing Fund pursuant to Article 62 (2) of the Act), institutions under Article 7 (1) 2 (hereinafter referred to as "sale guarantee institution"), and associations established pursuant to

(5) Where a project operator intends to recruit occupants, he/she shall publish a notice of invitation of residents in a daily newspaper where residents in the relevant housing construction area can easily see, the Internet homepage of the competent Si/Gun/autonomous Gu, or a certain place where residents in the relevant housing construction area can easily

(6) The announcement of a public announcement under paragraph (5) shall include the following matters at least five days before the date on which the initial application for housing supply is received. In such cases, the head of a Si, etc. may have a project undertaker prepare a separate guide after publicly announcing and publicly announcing the matters to be known at the time of concluding a housing supply contract and other necessary matters at the place of receipt in addition to the following matters and then deliver it to the applicant for housing supply (where an application for housing supply utilizing the Internet is filed pursuant to subparagraph 4-2, including posting on the website on which

6. Where guarantee for parcelling-out or rental deposit has been received by the parcelling-out guarantee agency, the details thereof;

4) The Defendant’s guarantee provision (hereinafter “instant guarantee provision”).

· Article 23 (Guarantee Fees, etc.)

(9) Detailed matters concerning the methods for calculating guarantee fees, refund, additional collection, etc. shall be prescribed by detailed regulations.

· Article 25 (Termination of Guarantee)

(1) Where any cause for termination prescribed by detailed rules, such as termination of the principal obligation, arises, the guarantee shall be terminated. In such cases, detailed matters concerning termination of the guarantee shall be prescribed by detailed rules.

5) The Defendant’s Enforcement Rule of the Guarantee Regulations (hereinafter “Enforcement Rule of the Guarantee Regulations”).

· Article 45 (Refund, Additional Collection, etc. of Guarantee Fees)

(4) Where a guarantee is terminated within a guarantee period, the guarantee fee for the remainder of the guarantee period shall be refunded, and where such guarantee is terminated after the guarantee period expires, the guarantee fee shall be collected.

(7) Where guarantee fees are refunded or collected additionally pursuant to paragraphs (1) and (4), it shall be based on the date on which the principal obligation is actually extinguished: Provided, That in cases of a guarantee for sale in lots, where the guarantee is terminated due to cancellation of approval for the announcement of invitation of residents, it shall be based on the date of cancellation, and where the principal debtor is changed without approval for the announcement

· the guarantee shall be terminated in any of the following cases:

2. Where a certificate for public announcement of invitation of residents is returned due to cancellation of approval for the announcement of invitation of residents due to a low sale rate;

6) The terms and conditions applied to each of the instant sales guarantee agreements (hereinafter “instant terms and conditions”).

· Article 1 (Definition of Terms) The definitions of terms used in this Clause shall be as follows:

4. The term "guarantee incident" means that the Guarantee Company notifies the Guarantee Creditor of the suspension of payment of occupancy deposit or the change in the account for payment of occupancy deposit due to any of the following causes:

· Article 2 (Establishment of Guarantee Obligation) Guarantee obligation of the Guarantee Company shall be effective at the time when the primary debtor obtains approval for the announcement of invitation of residents within two months from the date of issuance of the letter of guarantee, and shall take effect from the date of the

Article 3 (Contents of Guarantee Obligation)

The Guarantee Company shall assume the responsibility for the sale performance or the refund of the down payment and the intermediate payment paid where the principal debtor is unable to execute the sales contract due to a guarantee accident pursuant to Article 106 (1) 1 (a) of the Enforcement Decree of the Housing Act.

Article 4 (Payment of Obligations Not Subject to Guarantee, and of Remaining Occupancy Charges, etc.)

(1) A surety shall not discharge any of the following obligations:

3. Occupancy fees paid by a person who signed a housing sale contract before public announcement of invitation;

[Ground of recognition] Facts without dispute, Gap evidence 3 to Gap evidence 17, defendant's guarantee provision attached to the records, entry in enforcement rules of guarantee rules and the purport of whole pleadings

2. The parties' assertion

A. The plaintiffs

1) Each of the sales guarantee contracts of this case is effective only when the plaintiffs entered into a sales contract with the guarantee creditor upon the public announcement of invitation of the plaintiffs pursuant to Article 2 of the terms and conditions of this case. Since the plaintiffs failed to make the public announcement of the invitation of the plaintiffs, each of the sales guarantee contracts

2) Each of the instant sales guarantee contracts was concluded by the Defendant to guarantee the obligation of the Plaintiffs to supply housing to the buyers. As long as the Plaintiffs did not conclude a sales contract with the buyers and there is no principal obligation of the Plaintiffs, the Defendant’s guaranteed obligation does not exist in accordance with the principle of subsidiary nature.

3) Therefore, inasmuch as each of the instant sales guarantee contracts was legally rescinded by the Plaintiffs’ declaration of intent to cancel each of the instant sales guarantee contracts on August 24, 2010 against the Defendant in the absence of its validity, the Defendant is obligated to return KRW 1,016,931,00 for each of the instant sales guarantee fees, i.e., the instant settlement fees not returned to the Plaintiffs, i., the Plaintiff’s KS funds, i.e., the KRW 1,016,931,000, to the Plaintiff’s KS Construction.

B. Defendant

1) The purport of Article 2 of the Terms and Conditions of this case is to establish the guaranteed obligation that the Defendant bears to the guarantee creditor and to take effect, and it cannot be deemed that the contract of this case does not take effect merely because the Plaintiffs did not conclude the contract with the guarantee creditor.

2) Since the plaintiffs can enter into a sales contract with the secured creditor at any time with the approval of each public announcement of the instant case, it is difficult to conclude a sales contract according to the approval of each public announcement of the instant public announcement, or there was a possibility of occurrence of an insurance accident.

3) Each contract for the guarantee of sale in lots was terminated pursuant to Article 25 of the Guarantee Regulations and Article 64 subparagraph 2 of the Enforcement Rule of the Guarantee Regulations only when the approval for each of the instant notices was revoked. Accordingly, the scope of the Defendant’s refund of each of the instant guarantee fees to the Plaintiffs is the guarantee fees, namely, the guarantee fees, from the date of obtaining the approval for each of the instant notices of sale in lots, calculated pursuant to Article 23 (9) of the Guarantee Regulations and Article 45 (4) and (7) of the Enforcement Rule of the Guarantee Regulations to the date of its cancellation.

4) Therefore, since the defendant returned to the plaintiffs each of the guarantee fees of this case other than the settlement fees of this case, it cannot respond to the plaintiffs' respective claims of this case.

3. Determination

A. First, we examine whether each of the instant guarantee contracts has been terminated in accordance with Article 25 of the instant guarantee agreement and Article 64 subparagraph 2 of the Enforcement Rule of the instant guarantee agreement.

On the other hand, there is no dispute between the parties that the defendant did not explain or notify the plaintiffs at the time of the agreement on the guarantee of sale of the instant housing and the agreement on the guarantee of sale of the instant housing, and therefore, even if the plaintiffs agreed to do so under Article 15(1) of the agreement on the guarantee of sale of the instant housing, the guarantee provision of this case and the enforcement rules of the guarantee provision of this case cannot be the contents of the agreement on the guarantee of sale of the instant housing, and therefore, the defendant's assertion on this premise cannot be further examined, and therefore, it is without merit.

Even if the provisions on the guarantee of this case and the regulations on the guarantee of this case provide the contents of the house sale guarantee contract of this case, the contents of the guarantee of this case are objectively and uniformly interpreted on the basis of the average customer's understanding possibility without considering the intent or specific circumstances of individual contract-holders, and when the contents are unclear or doubtful in terms of customer protection, it is necessary to make a limited interpretation disadvantageous to the preparing party in favor of the customer (see Supreme Court Decision 2006Da72093, Feb. 22, 2007). In other words, Article 64 subparagraph 2 of the Enforcement Rule of the Guarantee Regulations provides the "low-sale rate, etc." as the grounds for cancellation of the approval for the announcement of the announcement of the public notice of this case, it is not clear that the contents of the reasons for cancellation of the approval for the announcement of the public notice of this case are not clear, and it is presumed that the guarantee fee of this case can not be determined as the guarantee fee of each business proprietor after the approval for the announcement of the public notice of this case.

B. Next, it is examined whether the defendant has taken over the risk due to the guarantee accident of each of the guaranteed contracts for sale in lots in this case as a result of the approval for the announcement of each of the recruitment

According to Article 77 of the former Housing Act, Article 106 (1) 1 (a) of the former Enforcement Decree of the Housing Act, Article 7 (1) of the former Enforcement Decree of the Housing Act provides that the business entity of housing construction shall obtain a guarantee for the sale of housing provided by the defendant to recruit occupants at the time of commencement of the construction work. The purpose of this guarantee system is to protect the bona fide buyers who want to acquire housing from the danger that the business entity is unable to perform the obligations arising from the sale of housing before completion of the construction work (see Supreme Court Decision 2012Da8642, Apr. 26, 2012). (2) Since the business entity is not obliged to obtain a guarantee for the sale of housing from the defendant under Article 8 (1) of the former Enforcement Decree of the Housing Act, the guarantee for the sale of housing at the time of the announcement for the sale of housing at the time of the announcement for the sale of housing at the time of the first announcement for the sale of housing at the expiration of each of the construction work period.

Meanwhile, it is reasonable to view that the period during which the business entity is obliged to return the guarantee fee for the defendant's business entity for the guarantee fee for the purchase of housing, which arises from the failure of the public announcement of each apartment of this case under Article 8 (6) of the former Rules on Housing Supply due to the failure of the public announcement of the public announcement of each apartment of this case, and the period during which the business entity is unable to make the public announcement of the public announcement because the approval of the public announcement of the public announcement of this case is cancelled, and that the return of each guarantee fee of this case against the defendant is requested by the plaintiffs on the date of the cancellation of the approval of each public announcement of the public announcement of this case.

C. Therefore, the Defendant is obligated to pay 6% per annum as stipulated in the Commercial Act from October 29, 2010 to the date following the date following the date the approval of the public announcement of this case concerning the apartment complex of this case is revoked, and 2,458,690,000 won for the Plaintiff’s apartment complex of this case from December 18, 2010 to November 11, 2014, the date following the date the approval of the public announcement of this case is revoked, which is the day following the date the public announcement of this case was revoked, to dispute about the existence and scope of each Defendant’s obligation to perform, and 20% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the following day to the date the public announcement of this case is revoked.

4. Conclusion

Therefore, each of the claims against the plaintiffs against the defendant of this case is justified within the extent of the above recognition, and the remaining claims are dismissed as it is without merit. Since part of the part against the plaintiffs of the judgment of the court of first instance differs from this conclusion, it is unfair to accept the plaintiffs' appeal partially and order the defendant to pay the above recognized amount, and each of the remaining appeals against the plaintiffs are dismissed as it is without merit. It is so decided as per Disposition.

Judges Park Jung-hwa (Presiding Judge)