[Defendant-Appellee] The Housing Reconstruction and Improvement Project Association (Law Firm Chang-Gong, Attorneys Seo-sik et al., Counsel for defendant-appellee)

Defendant 1 and seven others (Attorneys Kim Jae-hwan et al., Counsel for the defendant-appellant)

November 26, 2008

Daegu District Court Decision 2005Gahap19587 Decided June 13, 2008

1. Of the judgment of the court of first instance, the parts against the defendant 5 and 8 shall be modified as follows:

A. Defendant 5, upon receiving KRW 193,381,560 from the Plaintiff, performed each procedure for the transfer of ownership on the real estate stated in Section 19 and Section 20 of the attached Table on January 19, 206, and transferred the real estate listed in Section 19 of the above list to the Plaintiff, and ordered the real estate listed in Section 20 of the above list.

B. Defendant 8, upon receiving KRW 590,453,164 from the Plaintiff, performed each procedure for transfer of ownership on the real estate stated in paragraph 26, 27, and 28 of the above list on January 19, 206, and delivers each of the real estate listed in paragraphs 26, 27, and 27 of the above list, and ordered each of the real estate listed in Paragraph 28 of the above list.

C. The plaintiff's remaining claims against the defendant 5 and 8 are dismissed.

2. All appeals filed by the Defendants other than Defendant 5 and 8 against the Plaintiff are dismissed.

3. The plaintiff and the defendant 5 and 8 bear 10% of the total costs of the lawsuit and 90% of the above defendants, and the costs of the appeal between the plaintiff and the other defendants except the defendant 5 and 8 are assessed against each of the above defendants.

1. Purport of claim

The Plaintiff

A. At the same time, Defendant 1 received KRW 80,900,000 from the Plaintiff, and performed each procedure for the registration of ownership transfer for the reasons of the sale on the date of delivery of the complaint on the real estate stated in [Attachment] Nos. 3 and 5 of the above list, and delivered each of the real estate listed in [Attachment] Nos. 3 and 4 and 6 of the above list.

B. At the same time, Defendant 2 received KRW 43,800,000 from the Plaintiff, and performed each procedure for the registration of ownership transfer based on the sale on the date of delivery of the complaint regarding the real estate stated in paragraphs 7 and 8 of the above list, delivered the real estate listed in Paragraph 7 of the above list, and ordered the real estate listed in Paragraph 8 of the above list.

C. At the same time, Defendant 3 received KRW 59,600,000 from the Plaintiff, and performed each procedure for the registration of ownership transfer for the real estate listed in paragraphs 11 and 12 of the above list, and delivered the real estate listed in Paragraph 11 of the above list, and ordered the real estate listed in Paragraph 12 of the above list.

D. At the same time, Defendant 4 received KRW 259,924,480 from the Plaintiff, performed each procedure for the registration of ownership transfer for the sale of real estate listed in paragraphs 15 and 16 of the above list, delivered the real estate listed in Paragraph 15 of the above list, and ordered the real estate listed in Paragraph 16 of the above list.

E. At the same time, Defendant 5 received KRW 173,381,560 from the Plaintiff, and performed each procedure for the registration of ownership transfer for the real estate listed in paragraphs 19 and 20 of the above list, and delivered the real estate listed in Paragraph 19 of the above list, and ordered the real estate listed in Paragraph 20 of the above list.

F. At the same time, Defendant 6 received KRW 288,745,770 from the Plaintiff, and performed each procedure for the registration of ownership transfer based on the sale on the date of delivery of the complaint regarding the real estate stated in paragraphs 21 and 22 of the above list, delivered the real estate listed in Paragraph 21 of the above list, and ordered the real estate listed in Paragraph 22 of the above list.

G. Upon receiving KRW 844,962,040 from the Plaintiff, Defendant 7 performed each procedure for the registration of ownership transfer for the reasons of the sale on the date of delivery of the complaint regarding the real estate stated in paragraphs 23, 24, and 25 of the above list, and delivers each of the real estate listed in paragraphs 23 and 24 of the above list, and ordered each of the real estate listed in Paragraph 25 of the above list.

H. Upon receiving KRW 582,010,078 from the Plaintiff, Defendant 8 performed each procedure for the registration of ownership transfer for the reasons of the sale on the date of delivery of the complaint regarding the real estate stated in Section 26, 27, and 28 of the above list, and delivers each of the real estate listed in Section 26, 27 of the above list, and ordered each of the real estate listed in Section 28 of the above list.

2. Purport of appeal

The part against the Defendants in the judgment of the first instance is revoked, and the Plaintiff’s claim corresponding to that part is dismissed, respectively.

1. Quotation of judgment of the first instance;

The reason why this court is used is the same as the reasons for the judgment of the court of first instance, except for dismissal or addition as follows, and therefore, it is acceptable in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Parts in height:

A. The term “the term portion of administrative disposition” in the seventh and second sentence of the first instance court shall be regarded as “the term portion of administrative disposition”.

B. According to the statement No. 4-1 and No. 4-2, the fact that the establishment registration of a neighboring bank in the name of Daegu Bank, which was established on the real estate owned by Defendant 5, was cancelled can be recognized. Thus, the “Defendant 5” in the 11th sentence of the first instance court and the “Defendant 5” in the 12th sentence is deleted.

C. According to the list of real estate listed in attached Table 27, which is owned by Defendant 8, and evidence No. 5-1 through No. 3, the fact that the registration of provisional seizure entry in the name of the creditor in the name of the Daegu Sin-gu Sin-gu Hen-do Cooperative was cancelled can be recognized. As to the portion of the attached Table No. 26, 27, and 28 in the list No. 13 of the judgment of the court of first instance, the indication of the real estate as to the part of Defendant 8 is from “real estate” to “attached Table No. 26, 27, and 28,” and the market price is from “590,594,500 won” to “59,252,500 won” to “mortgage No. 596,00,000 won” to “mortgage No. 8,443,086 won, which was recorded as the secured debt and the secured debt of the real estate.”

3. The addition;

A. As to the assertion that the rebuilding resolution of the Plaintiff Union is null and void since the matters concerning the estimated amount of expenses incurred in the removal of a building and construction of a new building pursuant to Article 47 of the Aggregate Buildings Act were not determined at the time of rebuilding resolution, the rebuilding resolution of the Plaintiff Union is reasonable to deem that the rebuilding resolution of this case is to be determined to the extent that it may not be agreed later again on matters concerning the cost of new building and ownership of a new building, and that the said Defendants’ assertion to the same purport is not accepted with the grounds of the first instance judgment rejecting the assertion to the same effect as Defendant 1, etc.

B. Defendant 7’s and Plaintiff’s association rejected the Defendant’s assertion with the same purport as the reasoning of the first instance judgment rejecting the Defendant’s assertion that Defendant 1, etc. did not have any legitimate peremptory notice or that the said Defendant did not have any legitimate peremptory notice, or that the said Defendant did not have any legitimate peremptory notice, as it did not confirm the estimated amount of expenses incurred in the removal of the building and construction of the new building pursuant to Article 47 of the Aggregate Buildings Act at the time of resolution for rebuilding and thereafter did not provide the Defendant with an opportunity to participate in rebuilding because it did not make any recommendation or use for participation in rebuilding and did not make any use of it.

C. Determination as to the assertion that the instant commercial building by Defendant 1, 2, 3, and 7 is an independent housing complex

(1) The Defendants asserted to the effect that, under Article 16 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Do Government Act”), two units of Dong, five units of Dong, four units of Dong, and two units of Dong, as the independent housing complex consisting of five units of Dong in total, five units of Dong, five units of Dong, five units of Dong, five units of Dong, pursuant to Article 16 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Do Government Act”), shall obtain the consent of 2/3 or more sectional owners, as well as 4/5 or more of all sectional owners and voting rights of the above commercial building. The Plaintiff Union failed to meet the requirements for the said resolution at the time of re-building, and there was no specific provision on the share of expenses following the re-building. Thus, the Plaintiff Union asserts to the effect that re-building resolution is nonexistent or null and void in relation to the above commercial building.

Therefore, in full view of the health stand, Eul evidence No. 9, and the provisions of the relevant Acts and subordinate statutes as to whether the commercial building of this case, which is the premise of the above defendants' assertion, constitutes a housing complex under Article 16 (2) of the Do Government Act, the commercial building of this case should be deemed as a housing complex under the Housing Construction Promotion Act and the Enforcement Decree of the same Act (referring to a housing constructed with funds raised by the Korea Housing Bank and the local government under the same Act) or a national housing of 100 or more units under the Do Government Act, where the commercial building of this case, which is the premise of the above defendants' assertion, becomes a housing complex under Article 2 (2) 7 of the Do Government Act, to which Article 16 (2) of the said Do Government Act is applicable. Since it is apparent that the commercial building of this case does not fall under any of the above requirements, it cannot be deemed as a housing complex under the Do Government Act.

The Defendants also asserted that the commercial building of this case is a facility attached to the adjacent luminous man and a housing complex with the luminous man, and thus, it should be deemed as one unit within the housing complex subject to Article 16(2) of the Do governor Act. However, it is not sufficient to recognize the commercial building of this case as a welfare facility attached to the luminous man, and there is no other evidence to acknowledge it.

Fidelity, the above defendants' arguments are without merit.

4. Conclusion

Therefore, the plaintiff is liable to transfer the ownership of the real estate stated in the separate list No. 19,381,560 won from the plaintiff at the time of receiving KRW 193,381,560 from the plaintiff and to transfer the real estate stated in the separate list No. 19,20, and to deliver the real estate listed in the above list No. 19, and to order the real estate listed in the above list No. 20, and to order the above list No. 20.

In addition, the judgment of the first instance against the remaining Defendants other than the above Defendants is justifiable, and the remaining Defendants’ appeal is dismissed as it is without merit.

【Omission of Real Estate List】

Judges Hwang Han-sik (Presiding Judge)