[1] The time when the project implementer is obligated to pay liquidation money to the owner of land pursuant to Article 47 subparagraph 1 and subparagraph 2 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents

[2] Where a project implementer bears the obligation to pay liquidation money to an owner of land, etc. under Article 47 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the relationship between the duty to transfer the ownership of land and the project implementer

[1] Under Article 47 subparagraph 1 and subparagraph 2 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, a project implementer shall liquidate land, buildings, or other rights in cash within 150 days from the "date falling under such application for parcelling-out" when the owner of land, etc. fails to apply for parcelling-out or withdraws the application for parcelling-out before the expiration of the period for parcelling-out application. Here, the time when the payment of liquidation money arises for the owner of land, etc. who failed to apply for parcelling-out or has withdrawn the application for parcelling-out before the expiration of the period for parcelling-out application is "the following day of the expiration of the period for parcelling-out application" as stipulated by the project implementer under Article 46 of the same Act.

[2] In a case where a project implementer fails to apply for a parcelling-out or has withdrawn an application for a parcelling-out under Article 47 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the owner of land, etc. under the principle of equity bears the obligation to transfer the ownership of land, etc. to the project implementer in the condition that no rights are restricted, and the obligation to transfer ownership without registration of restriction of rights and the obligation to pay liquidation money to the project implementer is in a simultaneous performance relationship. However, if necessary for the project implementation, the project implementer may first pay the remaining amount after deducting the amount necessary to cancel the registration of restriction of rights from the liquidation money, and the landowner of land, etc. shall not exercise the right to resist simultaneous performance. In the meantime, if the owner of land, etc. has already completed the registration of transfer of ownership

[1] Articles 46 and 47 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents / [2] Article 47 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents

Plaintiff

Defendant Reconstruction Association (Attorney Kim Jong-soo, Counsel for the defendant-appellant)

Busan High Court Decision 2007Na20532 decided April 30, 2008

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A project implementer under Article 47 subparagraph 1 and 2 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the "Urban Improvement Act") shall liquidate land, buildings, or other rights in cash within 150 days from the date when the owner of land, etc. fails to apply for the parcelling-out or withdraws the application for the parcelling-out, according to procedures prescribed by Presidential Decree. The time when the payment of liquidation money takes place for the owner of land, etc. who failed to apply for the parcelling-out or withdrawn the application for parcelling-out before the expiration of the period for the parcelling-out application shall be deemed to be the following day of the expiration of the period for the application for parcelling-out under Article 46 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the "Urban Improvement Act"), and

According to the reasoning of the judgment below, the court below ordered the defendant union to pay damages for delay since the 150-day payment period stipulated in Article 47 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions, on the premise that the obligation of the plaintiff (designated parties) and the designated parties (hereinafter referred to as "the plaintiff, etc.") to pay the liquidation money from "the date when the application for sale was withdrawn" occurs. In light of the above legal principles, the court below erred by misapprehending the legal principles as to the time when the obligation to pay liquidation money under Article 47 of the Act on the Maintenance and Improvement of Urban Areas

2. As to the grounds of appeal Nos. 2 and 3

In cases where a project implementer fails to apply for parcelling-out or has withdrawn an application for parcelling-out under Article 47 of the Urban Improvement Act, and the owner of land, etc. under the principle of fairness bears the obligation to transfer ownership of land, etc. to the project implementer in the state of absence of restriction of rights, and the obligation to transfer ownership without registration of restriction of rights and the obligation to pay liquidation money for the project implementer is in the relationship of simultaneous implementation. However, if necessary for the project implementation, the project implementer may first pay the remainder after deducting the amount necessary for cancellation of registration of restriction of rights from the liquidation money from the owner of land, etc., and the owner of land, etc. is not entitled to exercise the right of simultaneous performance. Meanwhile, if the owner of land, etc. has already completed the registration of ownership transfer due to trust in the future

According to the records, the plaintiff et al. completed the registration of ownership transfer on each real estate of this case by reason of trust with the defendant partnership regarding the implementation of the reconstruction project of this case, and immediately thereafter, the plaintiff et al. established the right to collateral security of 96 million won with respect to each real estate of this case and completed the registration of ownership transfer.

In light of the above legal principles, the Plaintiff et al. is obligated to cancel the registration of establishment of a neighboring mortgage in order to withdraw the application for parcelling-out pursuant to Article 47 of the Act on the Maintenance of Urban Areas and Dwelling Conditions for Residents and to receive the settlement money from the Defendant Cooperative (it is without the obligation to transfer ownership separately because the ownership registration was made in the future of the Defendant Cooperative on the grounds of this trust). Such obligation to cancel the registration of establishment of a mortgage and obligation

Nevertheless, the court below did not proceed to the above simultaneous performance defenses and omitted judgment and affected the conclusion of the judgment. [The defendant union submitted a preparatory document claiming the amount of the obligation to be borne by the plaintiff, etc. from the liquidation money only after the closing of argument in the court below, but there was an argument that the unilateral claim for the payment of liquidation money is unjustifiable in the statement of reasons for appeal. In addition, if an important argument that can lead to the conclusion of the judgment was filed after the closing of argument, the appellate court has a duty to conduct sufficient deliberation by allowing the resumption of pleading in order to resolve the dispute between the parties (see Supreme Court Decision 94Da3433, Nov. 11, 1994, etc.)]

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)