See Attached 1 List (Law Firm Barun, Attorneys Kim Jung-soo et al., Counsel for the plaintiff-appellant)

Scattering East Forest Housing Association (Law Firm Democratic Law, Attorneys Gyeong-won, Counsel for defendant-appellant)

Dae Forestry Industry Co., Ltd. (LLC, Kim & Lee LLC, Attorneys Ma-tae et al., Counsel for the defendant-appellant)

October 15, 2010

Suwon District Court Decision 2008Gahap24701 Decided November 12, 2009

1. Of the ancillary claims for the judgment of the court of first instance, the part against the plaintiffs in relation to the defendant Fiberal Winter Zone Housing Association shall be revoked.

At the request of change from the trial to an exchange, the Defendant Fiber Forest District Housing Association shall implement the registration procedure for the transfer of ownership based on each apartment building entered in the list 2 list execution schedule, Dong and lake column of attached Table 2 to the plaintiffs.

2. The plaintiffs' remaining main claims that were exchangedly changed in the trial are dismissed.

3. Between the plaintiffs and the defendant flying Dong forest housing association, the total costs of lawsuit are divided into two minutes, and the remaining costs of lawsuit are borne by the plaintiffs, and between the plaintiffs and the defendant flying forest industry company, respectively.

1. Purport of claim

The primary purport of the claim is that the Defendant Fiber-dong District Housing Association shall carry out the procedure for the restoration registration of each of the apartment buildings listed in the separate sheet 2 list procedure performance sheet, and (1) the procedure for the registration of ownership transfer based on each sale contract entered in the column for the registration of ownership transfer in the execution sheet of the above registration procedure execution statement, and (2) the procedure for the restoration registration of each of the prohibited items entered in the registration column for the restoration registration of the execution sheet

Preliminary Claim: The defendants jointly and severally pay to the plaintiffs the amount of damages for each plaintiff in the attached Table 3 and the amount of damages for each plaintiff in the attached Table 1 of the above table "Difference" as to each of the above losses, from August 14, 2009 to Nov. 12, 2008; from Nov. 12, 2009 to Nov. 12, 2009; and from the next day to the day of full payment, the amount equivalent to 5% per annum from each of the above 20% interest per annum (the plaintiffs filed a claim with the defendants for confirmation of ownership of the apartment in question with the main claim; the plaintiff changed the lawsuit to seek implementation of the procedure for registration of ownership transfer registration and the procedure for registration of recovery of prohibited items for the apartment in question to the housing association of the defendant Dongdong Forest District to the defendants in the first instance, and reduced part of the conjunctive claim at the trial. The plaintiffs made a joint tort as to the defendants' conjunctive cause of the conjunctive claim.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiffs as to the conjunctive claim against the defendant Daelim Industry Co., Ltd. is revoked. The defendant Daelim Industry Co., Ltd. shall jointly and severally pay the plaintiffs the amount of damages as stated in the attached Table 3 to each plaintiff as well as the amount of damages as stated in the attached Table 1 to each of the above losses, and the amount as stated in the attached Table 1 to August 14, 2009 with respect to each of the above losses as stated in the above Table 1, and the amount as stated in the "B" column from November 1, 2008 to November 12, 2009, and 5% per annum from the next day to the date of full payment, and 20% per annum from the next day to the date of full payment.

Of the ancillary claim of the judgment of the court of first instance, the part of the housing association for the defendant Fiberal Zone against the plaintiffs shall be revoked. The plaintiffs' conjunctive claim against the defendant Fiberal Zone Housing Association as to the above revoked part shall be dismissed.

1. Facts of recognition;

The reasons for this part are the same as the "1. Facts of recognition" of the court of first instance (the main text of Article 420 of the Civil Procedure Act), except for the addition of the following paragraphs.

I. On October 27, 2008, each apartment of this case entered the registration of ownership preservation under the name of the defendant association and the registration of ownership preservation under Article 40 of the former Housing Act (amended by Act No. 9366, Jan. 30, 2009) (hereinafter “the registration of prohibited matters”) was completed as of October 27, 2008, stating that the registration of ownership preservation under Article 40 of the former Housing Act (amended by Act No. 82546, Jan. 30, 2009) shall not be permitted to transfer the relevant housing, establish a limited real right, or impose restrictions on ownership such as seizure, provisional seizure, provisional disposition, etc. (hereinafter “registration of prohibited matters”).

(j) On November 7, 2008, with respect to apartments listed in [Attachment 2] No. 2 List No. 1 on November 7, 2008, the Defendant Association registered the cancellation of the registration of prohibited matters due to the same day, and the Defendant Daelim Industry, from the Seoul Central District Court, as the right to claim the establishment of a right to claim the establishment of a right to collateral security based on the construction contract, and completed the registration of prohibited matters due to the unsold in lots on Nov. 18, 2008, with respect to apartments listed in [Attachment 2] No. 2, 3, 4, 7, 9, 10, and 12 as the right to claim the establishment of collateral security based on the construction contract on Nov. 31, 2008 by subrogation of the Seoul Central District Court as the right to preserve the right to claim the establishment of collateral security based on the construction contract on Dec. 5, 2008, by subrogationing the registration of Defendant Association on December 31, 2008.

C. On September 11, 2010, at the time of death, the heir was Nonparty 2 and Nonparty 3, Nonparty 4, and 5, who were the wife, but the heir did not have any right to the apartment as set forth in the [Attachment 2] No. 4] on October 4, 2010.

2. The plaintiffs' assertion

(a) The primary claim

(1) Claim for transfer registration of ownership

Pursuant to each of the sales contracts in this case, the Defendant Union is obligated to implement the registration procedure for ownership transfer on each of the apartment buildings listed in the above registration procedure execution schedule, and the registration procedure for ownership transfer on each of the above registration procedure execution schedule.

(2) Requests for restoration registration of cancelled prohibited matters

The registration of cancellation on the registration of prohibited matters by the Defendants was made illegally without any substantive reason, and the Defendant Union is obligated to implement the procedure of restoration registration of each prohibited matter entered in the column for recovery of the execution statement of each of the above registration procedure to the plaintiffs who are the claimant for ownership transfer registration based on each of the sale contracts in this case.

(b) Preliminary claim

(1) Claim for damages due to impossibility of performance

The Defendant Association has a duty to implement the procedures for the registration of ownership transfer for each apartment of this case in accordance with each of the sales contracts of this case, and the Defendants neglected to cancel or cancel the registration of each of the prohibited matters while being well aware of such circumstances, and the Defendant Dae forest industry received a decision of provisional disposition on the prohibition of disposal for each of the apartment of this case. After the cancellation of the registration of prohibited matters, a large amount of provisional seizure by the creditors of the Defendant Association with respect to each of the apartment of this case was made, and the obligation to register ownership transfer to the plaintiffs of the Defendant Union was impossible. Therefore, the Defendants are jointly and severally liable to compensate the plaintiffs for the difference between the general sale price, which is the damages suffered by the

(2) Claim for damages caused by tort, etc.

Even if each sales contract of this case is null and void, each of the sales contracts of this case was null and void since the defendant association president, non-party 1 (the non-party to the judgment of the Supreme Court), and employees of the defendant Daelim industry, deceivings the plaintiffs as being lawful free sale, and did not take proper measures despite the issuance of the "written pledge to preserve the right of preferential sale of land owners" prepared according to the intent of the defendant Daelim industry. As the employer or joint tortfeasor against the non-party 1's illegal act, the defendant Daelim industry is jointly and severally liable for compensation for the damages suffered by the association members together with the association as a registered business operator.

3. Determination

A. Method of determining the plaintiffs' claims

Under the premise that each contract for the sale in this case is effective, the plaintiffs filed a claim for ownership transfer registration and the registration of restitution of prohibited matters with respect to the defendant union, and filed a preliminary claim against the defendants for damages arising from tort on the premise that each contract for the sale in this case is null and void or the obligation to register ownership transfer is impossible. The preliminary claim can not be joined in preparation for dismissal of the main claim, and it is logically apparent that the above preliminary claim is joined with the main claim. If the main claim is filed in the form of consolidation of main and conjunctive claims, it is not necessary to determine the conjunctive claim that is logically incompatible if the main claim is accepted, and as long as the plaintiffs accepted the claim for ownership transfer registration against the defendant union, each of the conjunctive claims against the defendants that are logical incompatible, should not be judged separately.

B. Main Claim

(1) Claim for transfer registration of ownership

(A) Effect of each of the instant sales contracts

Where the articles of association or regulations of a cooperative stipulate in relation to the management and disposition of property belonging to collective ownership of all partners, they shall comply therewith, and unless otherwise stipulated, they shall be subject to a resolution at a general meeting of partners.

In this case, according to the health section, Gap evidence No. 1, where the rules of the defendant association provide that "the agent of the association" shall be "the agent of the association for the efficiency of the business of the association," and the agent of the association shall execute the business throughout the entire business of the association (Article 3 of the rules), the defendant association shall have "the steering committee" as a meeting of the association, and the defendant association shall have "the matters concerning the amendment or abolition of the regulations, the matters concerning the methods of housing supply, the matters concerning the housing projects, the matters concerning the execution of the association's business, and other important matters concerning the achievement of its business objectives" as the deliberation and resolution of the steering committee, and shall newly delegate the above affairs to the agent of the operating committee (Articles 19 and 20 of the rules) for the efficiency of the business of the association. In addition to the above facts, the defendant association shall not function as a decision-making body of the defendant association, but it shall have the plaintiffs newly delegated the status of the association's member of the association as an agent of the association in advance to the housing project of this case.

Therefore, the act of the representative or the new representative of the defendant association to conclude each of the sales contracts of this case when purchasing the land for the housing project from the plaintiffs is valid against the defendant association.

(B) The assertion and determination of the Defendant Union

1) The defendant union asserts that each of the sales contracts of this case concluded in a voluntary way by which the non-qualified plaintiffs succeeded to the status of the withdrawing member with the new main office of the executing agency delegated with all the authority concerning the affairs of the housing association by the association, or obtained an unsold apartment unit due to the withdrawing member from the association, is invalid in violation of the former Housing Act and subordinate statutes stipulating the qualification of the association member, the method of sale in lots, and the prohibition of comprehensive delegation to the executing agency

In light of the above, the old Housing Act and subordinate statutes stipulate that the number of buyers may be recruited by additional recruitment with the approval of the relevant government agency only when there is a vacancy in prohibiting the replacement, new joining, etc. of association members. However, even if the association entered into a contract for selling unsold parcels of association members by means of a negotiated contract, not open recruitment, in violation of the old Housing Act and subordinate statutes, to a person who is not qualified as association members, in violation of the old Housing Act and subordinate statutes, it cannot be concluded that the judicial effect of the sales contract is denied. The provisions prohibiting association's comprehensive delegation of the enforcement affairs to the association cannot be found in the old Housing Act and subordinate statutes, and it does not require a resolution of the general meeting of association members separately from each of the sales contracts in this case

2) The Defendant Cooperative, Plaintiff 1, 2, 3, and 10 (Plaintiff 4 of the Supreme Court Decision), did not pay the price for each of the instant sales contracts to the Defendant Cooperative, and returned the money deposited in the Defendant Daelim Industry. The Plaintiff 5, 6, 7, 8, 9, 11, 12, and 13, deposited the money into the passbook in the name of the Defendant Cooperative established by Nonparty 1 at his own discretion, and Nonparty 1 did not receive the sale price by embezzlement, and thus, the Defendant Cooperative could not comply with the Plaintiffs’ claim for transfer registration.

As long as each of the contracts for sale in this case is effective, the above argument by the defendant union cannot prevent the plaintiffs' claim for the transfer registration of ownership against the defendant union. Thus, the above argument by the defendant union is without merit.

(C) Whether the obligation to transfer ownership of the Defendant Union is impossible

With respect to each apartment of this case, as seen earlier, the circumstance where the provisional disposition prohibition against the disposal of the defendant Daelim Industry and the provisional disposition against the sum of the amount of claims is not sufficient to the extent that the funds of the defendant association can entirely rescind the provisional disposition or provisional disposition. However, such circumstance alone cannot be readily concluded that the obligation to transfer the ownership of the defendant association with respect to each apartment of this case owned by the defendant association has become impossible to perform the obligation to transfer the ownership of each apartment of this case. However, in light of the fact that the defendant association did not have any defense against non-performance and the plaintiff 1 also seeks the registration of ownership transfer, such circumstance alone cannot be readily concluded that the obligation to transfer the ownership of the defendant association is impossible to perform, and therefore, this part is subject to the registration of ownership transfer with respect to the defendant association.

(D) Sub-committee

Therefore, the defendant union should implement the registration procedure for transfer of ownership based on each sale contract entered in the execution statement of the above registration procedure with respect to each apartment unit entered in the execution statement of the above registration procedure and item column of the above registration procedure.

(b) Requests to reinstate the registration of prohibited matters cancelled;

According to the former Housing Act, the term "occupant" means a person who is supplied with a house for the purpose of Article 38 of the same Act (Article 2 subparagraph 10 (a) of the same Act; a project undertaker shall obtain approval from the head of the Si/Gun/Gu under the conditions as prescribed by the Ordinance of the Ministry of Construction and Transportation in cases where he intends to invite occupants; and shall supply a house in compliance with the conditions, method, and procedure for recruiting occupants; the method, time and procedure for the payment of occupancy deposit; the method and procedure for a housing supply contract; and the method and procedure for a housing supply contract as prescribed by the Ordinance of the Ministry of Construction and Transportation (Article 38); with respect to a housing and site constructed by a housing construction project after obtaining approval for the project plan under Article 16 (1), the project undertaker shall not establish a mortgage, etc. for the period from the date of application for the announcement of invitation of occupants until 60 days after the date of application for the registration of the ownership transfer of the relevant housing and housing site; in cases of restricting the establishment of mortgage, etc., a limited real right after transfer or registration of the housing site.

In light of the language and text, etc. of Article 40 of the former Housing Act, the provision is interpreted as a provision to protect prospective occupants who are qualified as residents according to the conditions, method, and procedure for recruiting occupants as prescribed by the Ordinance of the Ministry of Construction and Transportation, and it is interpreted as a provision to protect prospective occupants who are supplied housing after the approval for the public announcement of invitation of occupants. Since the plaintiffs fail to meet the eligibility as occupants under the above Act, they do not constitute prospective occupants under Article 40 of the former Housing Act,

Therefore, this part of the plaintiffs' assertion on the premise that the plaintiffs have such title is without merit.

4. Conclusion

Therefore, the plaintiff's primary claim that is changed in exchange in the trial against the defendant association is justified within the above scope of recognition, and the remainder is dismissed as there is no ground. As long as the plaintiff's primary claim is accepted, the part against the defendant flying-dong forest association's loss against the defendant flying-dong forest association among the conjunctive claim in the judgment of the court of first instance shall be revoked, and the plaintiffs' appeal against the defendant flying-dong forest industry and appeal against the plaintiffs against the defendant association shall not be judged separately. It is so decided as per Disposition.

[Attachment]

Judges Mansung (Presiding Judge)