Plaintiff 1 and 51 others (Law Firm Ham Co., Ltd, Attorneys Lee Dong-jin et al., Counsel for the plaintiff-appellant)

Korea Housing Guarantee Co., Ltd. (Law Firm Korea, Attorneys Sung Sung-hee et al., Counsel for the defendant-appellant)

October 26, 2010

Seoul Southern District Court Decision 2008Gahap21007 Decided November 27, 2009

1. Each of the plaintiffs' appeals is dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

1. Purport of claim

The defendant shall pay to the plaintiffs 20% interest per annum from the day following the day of service of a copy of the complaint of this case with respect to each of the above amounts and each of the above amounts listed in the separate sheet 3.

2. Purport of appeal

The judgment of the first instance shall be revoked. This decision is identical to that of the purport of the claim.

1. Basic facts

The reasoning for this part of the court's explanation is as follows, the first instance court's reasoning is as stated in the corresponding part of the judgment, except for the second to third to third to 8 of the judgment of the first instance, and the second to 13 of the judgment of the second to 7 of the first instance court's "the testimony of the non-party 1" of the 7th to "the testimony of the non-party 1 of the witness non-party 1 of the first instance court". Thus, this part is cited in accordance with the main sentence of

[Supplementary Use]

A. The plaintiffs concluded a sales contract as stated in the plaintiffs' corresponding part of attached Form 2 with respect to the apartment of this case as to the construction decoration Co., Ltd. (formerly changed on May 20, 2004: hereinafter referred to as the "fumi Construction"), which is the execution company of 270 units of Seocho-dong 1166-1, Seocho-dong 116-1, Busan (hereinafter referred to as the "the apartment of this case") and two units of Seocho-dong 166-1 (the date of concluding the contract in attached Form 2 is below the actual date of concluding the contract and below the date of concluding the contract, but there is no dispute as to the conclusion of the sales contract before May 10, 2004 except for the plaintiff 17 (the plaintiff 13 of the judgment of the Supreme Court), and the down payment.

B-1. On May 10, 2004, decoration construction made a housing sale guarantee contract with the Defendant on May 31, 2006, the guaranteed amount of KRW 59,300,000,000, the date of commencement, May 20, 2004, the date of pre-use inspection (pre-use inspection) and the date of May 20, 2006, and the date of pre-use inspection, and the date of pre-sale inspection as to the apartment of this case, and where construction of decoration fails to perform the pre-sale contract with the buyer of this case due to bankruptcy, etc., the Defendant was issued a housing sale guarantee contract with the Defendant as to the contract of this case.

B-2. Article 4 of the Terms and Conditions of Housing Sale Guarantee (hereinafter referred to as the “Terms and Conditions of Housing Sale”) which is integrated with the instant sales guarantee agreement lists obligations not subject to the execution of the guarantee as follows:

Article 4 (Liability Which is not Subject to Guarantee Performance) The Guarantee Company shall not discharge any of its surety obligations for any of the following obligations:

2. Obligations owed by the principal debtor to a person other than the ordinary contractor under the Rules on Housing Supply, such as payment in kind, name of vehicle, double contract, etc.;

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

B-3. On the other hand, the letter of guarantee for the sale of housing stated in the letter of guarantee for the sale of housing as follows: “The account for the payment of occupancy deposit, the contents of the guarantee obligation, and the obligation not subject to the guarantee obligation, shall be specified in the contract for the sale of housing”; and Article 5(3) of the contract for the sale of housing in this case states the same exemption as Article 4 of the terms and conditions of this case. In addition, the letter of contract for the sale of housing in this case states that “the oral agreement on matters not specified in the

C. On May 10, 2004, the construction of decoration was announced by the head of the Dong/Dong in Busan with the approval of the announcement of the recruitment of the apartment of this case, and the "matters excluded from the object of guarantee" column of the announcement includes the same exemption as Article 4 of the terms and conditions of this case.

2. The assertion and judgment

A. The outline of the plaintiffs' common assertion ( plaintiffs 17 and 24)

The part payments paid by the plaintiffs after the public announcement of the invitation of occupants should be interpreted not to correspond to "the occupancy fee paid by the person who entered into a housing sale contract before the public announcement of the invitation of occupants" under Article 4 subparagraph 3 of the Clause of this case. If such interpretation is not construed, Article 4 subparagraph 3 of the Clause of this case is null and void pursuant to the Act on the Regulation of Terms and Conditions. At least, the defendant, despite being aware that the plaintiffs were the pre-sale contractor who entered into a housing sale contract before the public announcement of the invitation of occupants, conducts business as if the plaintiffs were the subject of the sale guarantee before the public announcement of the invitation of occupants, without notifying the fact that they are not the subject of the purchase guarantee, and then claims the exemption pursuant to Article 4 subparagraph 3 of the Clause of this case. Since this is in violation of the good faith principle, the defendant is obliged to pay to the plaintiffs the amount equivalent to the attached Form 3, which is the part payments paid by the plaintiffs pursuant to the contract of this case. In

B. Whether the intermediate payment paid by the plaintiffs after the public announcement of invitation of the plaintiffs constitutes Article 4 subparagraph 3 of the terms of this case

(1) The plaintiffs' assertion

The purpose of the housing sale guarantee system is to protect the bona fide buyer who has paid the price for sale in good faith. Article 4 subparagraph 3 of the Clause of this case was introduced to avoid the defendant's difficulty to prove the creditor of payment in kind or the policyholder for false sale in violation of the Housing Supply Rules. Thus, whether the construction in this case was pre-sale in violation of the Housing Supply Rules, or whether the plaintiffs were aware of the contents of Article 4 subparagraph 3 of the Clause of this case should not be the standard for determining the buyer's good faith. The plaintiffs are not the creditor of payment in kind and the contractor for false sale, but the bona fide buyer who actually paid the intermediate payment after receiving a loan from the National Bank. Further, the plaintiffs were unaware of the fact that the construction in this case was made before the public announcement of the sale in this case. Accordingly, even if the plaintiffs received the apartment in advance, it should be interpreted that Article 4 subparagraph 3 of the Clause of this case is not applicable to the part payment paid by the plaintiffs after the public announcement of the invitation.

(2) Determination

On the other hand, Article 4 subparagraph 3 of the Clause of this case provides that "the occupancy price paid by a person who has entered into a housing sale contract before the public notice for invitation of occupants" shall be interpreted as "the occupancy price paid by the person who entered into a housing sale contract before the public notice for invitation of occupants". Thus, it is difficult to interpret it as

(4) According to the above basic facts, it is difficult for the business entity to openly recruit occupants, and if the housing is supplied, it shall be announced in daily newspapers not later than five days prior to the date of receiving the first application for the public announcement of the sale contract (Articles 8(1) and (4)), and if the business entity selects occupants by means of general supply, it shall be made in order and in sequence as provided in Articles 11 through 13 of the above Rules as of the date of the public announcement of the sale. (Article 10) Since it is difficult for the business entity to enter into the public announcement of the sale contract for the purpose of the public announcement of the sale contract for the purpose of which the public announcement of the sale contract for the purpose of which the public announcement of the sale contract for the purpose of which the public announcement of the sale of the housing was made for 3 days after the expiration of 5 days from the date of the invitation of occupants, it shall be deemed that there is no moral reason for the public announcement of the sale of the housing for the purpose of protecting the sale of the housing by the public announcement of the sale contract.

C. Whether Article 4 subparagraph 3 of the Terms and Conditions of this case is null and void pursuant to the Regulation of Terms and Conditions Act

(1) The plaintiffs' assertion

Article 4 subparag. 3 of the Terms and Conditions of this case provides that the requirements for the plaintiffs to exclude or limit the defendant's guarantee liability without undue and reasonable grounds, or the exercise of the plaintiffs' rights to hold the guarantee liability are aggravated pursuant to Articles 6(1), 6(2)1, and 7 subparag. 3 of the Terms and Conditions Regulation Act, and thus, it is null and void pursuant to Article 6(2)2 of the Terms and Conditions Regulation Act, since it falls under a provision that is difficult to expect in light of all the circumstances, such as the form of

(2) Determination

However, the contract of this case is a standardized contract which is regulated by the Act on the Regulation of Terms and Conditions since the contract of this case was prepared in advance by the defendant for the purpose of a housing sale guarantee contract to be entered into with a large number of housing construction project undertakers.

However, in cases where a guarantee accident occurred due to the bankruptcy or bankruptcy of a housing construction business entity, the housing sale guarantee contract is "a contract for a third party" with the purport that the defendant would refund the down payment and intermediate payment paid by the business entity or complete the apartment of this case instead of a business entity (see Supreme Court Decision 97Da10208 delivered on September 26, 1997). Thus, the parties to the housing sale guarantee contract of this case are the head construction and the defendant, and the plaintiffs are merely the beneficiaries who receive the payment by expressing their intent of profit (request for the performance of guarantee obligation) upon the fulfillment of the above conditions. Thus, it is difficult to view the plaintiffs as a "customer" under Article 2 (3) of the Act on the Regulation of Terms and Conditions. ② In light of the economic status of the construction of the defendant and the defendant for the housing construction and the purpose of the housing sale guarantee system, it is difficult to view that the plaintiffs' exemption from the terms and conditions of this case were unfairly unfavorable or difficult to recognize that there were reasons for the above plaintiffs' exemption from liability.

D. Whether the Defendant’s assertion of Article 4 subparag. 3 of the Clause of this case violates the good faith principle

(1) The plaintiffs' assertion

In full view of the fact that the land was acquired by conversion of part payments to loan funds, the trust registration of the defendant, the issuance of the defendant's house sale guarantee certificate, and the approval of the announcement of the invitation of the head of Busan Dong-gu office on May 10, 2004, the non-party 2 and the director non-party 3, who was the head of the defendant's Busan branch office, were investigated by the prosecutor's office on the above acts of convenience around December 2004, the construction of decoration was submitted to the above non-party 3 on January 2, 2005 or around February 2, 2005, it seems that the defendant was aware of the fact that the sale contract of this case was made in advance by the defendant around February 2005. Thus, since the defendant had a duty to notify the plaintiffs in any way that it cannot reduce the sale guarantee fee to the plaintiffs, the defendant did not notify the plaintiffs that it did not constitute an illegal act against the defendant's duty of disclosure and the defendant's duty of disclosure.

(2) Determination

No. 139, 140 No. 1 of the Act provides that "No. 139, and No. 140 of the Act provides that "No. 139, and No. 140 of the Act provides that "No. 136, 141, and 146 shall be submitted to the head of the defendant's branch of Busan shall be the former representative director or director's statement, which is the debtor for the construction of a decoration, and it shall not be believed that there is no objective evidence supporting the above provision." No. 136, 141, and 146 shall be sufficient to recognize that the defendant was the pre-sale contractor who entered into a contract prior to the public announcement of the invitation of the plaintiffs, and there is no other evidence to support the above, and even if the defendant was aware of the above fact, it is difficult to consider that the party to the contract of the sales guarantee in this case and the defendant's pre-sale contract in the public announcement of the sale contract in this case, and that the pre-sale contractor's amount paid is not subject to the defendant's obligation."

E. Whether the Defendant entered into a separate agreement which takes precedence over Article 4 subparag. 3 of the Terms and Conditions of this case

(1) The plaintiffs' assertion

With the knowledge that the plaintiffs are pre-sale contractors, the defendant posted the fact that the plaintiffs are the sellers of the sale contracts subject to the guarantee of sale, notified the plaintiffs of the occurrence of the guarantee accident, notified them of the method of implementing the guarantee, notified them of the choice of the methods of performing the guarantee, and collected the fees for the guarantee of sale to the whole buyers including the apartment units sold by the plaintiffs from the decoration Construction, and conducted the guarantee business on the premise that the plaintiffs are the buyers of the sale contracts subject to the guarantee of sale. Therefore, it should be viewed that the defendant explicitly expressed the plaintiffs' intent to perform the guarantee of sale in this case. Since the plaintiffs did not have the intention to refuse it, it should be viewed that there was an implied agreement between

(2) Determination

On the other hand, the fact that the defendant notified the plaintiffs to choose the method of implementing the guarantee and notified the plaintiffs that the defendant decided the method of implementing the guarantee to implement the refund is as seen above, and in addition to the whole purport of the pleadings in the statement of the evidence Nos. 9 and 65 (including the provisional number; hereinafter the same shall apply) of the defendant's Internet homepage seller, if the information on the plaintiffs is entered and searched on the screen of the defendant's Internet homepage seller, the plaintiffs also can be confirmed as the "household where the sale guarantee is issued", and when the defendant receives additional guarantee fees from the construction of the decoration around January 2005, he can be recognized that the plaintiffs received the amount calculated as the object of the guarantee, including the apartment purchased by the plaintiffs as the whole.

However, in light of the fixed formation and large volume of guarantee contracts, it is reasonable to view that the business entity has obtained approval of the business plan prior to the occurrence of the guarantee accident and that the business entity has conducted an examination of the credit rating of the business entity. Since the authority or obligation to approve the contract in advance is not deemed to have been granted to the defendant, the defendant's act of posting the plaintiffs on the Internet homepage or receiving guarantee fees for the whole unit unit unit from the construction of the decoration is merely merely premised on the premise that the number of unit buyers on the list submitted by the decoration construction is a normal buyer (the above list on the screen page of the pre-sale purchaser is prepared by the business entity based on the data submitted by our company, so there may be no list according to the period of submission or submission of the list). Further, according to the evidence No. 4 above, it is difficult to recognize that the guarantee of the our company's apartment unit is merely the guarantee purchaser's obligation under the terms and conditions of the contract for sale in lots to protect the plaintiffs in accordance with the Housing Act and the regulations on the supply of housing.

Ultimately, it cannot be deemed that there was an agreement between the plaintiffs and the defendant as to the sale guarantee under Article 4 subparagraph 3 of the Terms and Conditions of this case, so the plaintiffs' above assertion is without merit.

F. Determination on Plaintiff 17’s assertion

(1) Plaintiff 17’s assertion

The reasoning for this part of the court's explanation is as stated in Section 2-B(1) of the reasoning of the judgment of the court of first instance, and this part is cited by the main text of Article 420 of the Civil Procedure Act.

(2) Determination

The statements in Gap evidence Nos. 130, 135, and 137, which correspond to the plaintiff 17's assertion, are difficult to believe in light of the opposing circumstances that are followed.

However, considering that Gap's statement Nos. 81, 126 and 129 and the witness of the first instance court's testimony, the above plaintiff's conclusion date of the sales contract of this case and the receipt date of KRW 11,100,000 prepared by the above plaintiff is stated on April 12, 200, but there was a case where the contract date and the receipt date of the sales contract were entered retroactively in order to meet the examination date of intermediate payment loan, the above plaintiff's transfer of 10,00,000 won to the 4's account which was conducted on May 20, 200, the above plaintiff's 10,000 won was 10,000 won and 10,000,000 won were 10,000 won and 20,000 won were 10,000 won, 20,0000 won, 20,000 won, 20,000 won, 26.

In addition, as long as the above plaintiff constitutes a pre-sale contractor, the above plaintiff's preliminary assertion cannot be accepted for the same reasons as seen earlier.

G. Judgment on the plaintiff 24's assertion

The reasoning for this part of the court's explanation is as stated in Section 2-c. of the reasoning of the court of first instance, except for the deletion of "the" of Section 16, Section 17, which is the same as that of Section 2-c. of the reasoning of the judgment of the court of first instance. Thus, this part shall be

3. Conclusion

Therefore, the plaintiffs' claims are dismissed without merit, and the judgment of the court of first instance is justified as it is so decided that the plaintiffs' appeals are dismissed. It is so decided as per Disposition.

[Attachment]

Judges Landscaping Co., Ltd. (Presiding Judge)