[1] In relation to the cancellation of additional registration under Article 40 of the former Housing Act, whether eligible residents, etc. can file a claim against the project undertaker for restitution of the additional registration cancelled (negative)

[2] Whether the provisions of Article 32(5) of the former Housing Act concerning the qualifications, etc. of members of a housing association, Articles 38 and 39 of the former Enforcement Decree of the Housing Act, and Article 8 of the former Rules concerning the procedures for recruiting occupants are effective provisions (negative)

[1] The additional registration or the cancellation thereof under Article 40 of the former Housing Act (amended by Act No. 9366 of Jan. 30, 2009; hereinafter the same) is made by the business entity solely upon the application of the business entity. Article 40(1), (3), and (4) of the former Housing Act and Article 45(2) and (3) of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 21744 of Sept. 21, 2009) of the former Enforcement Decree of the Housing Act are difficult to regard the prospective resident or the business entity as the person liable for registration or the person liable for registration under the registration procedure in relation to the restoration of the additional registration cancelled at the time of cancellation. However, the lawsuit for the claim for cancellation of registration is filed against the person liable for registration in order to recover the cancelled registration if all or part of the registration is cancelled unlawfully, and it is inappropriate for the person other than the person liable for registration to file for registration to recover the additional registration against the business entity.

[2] Article 32(5) of the former Housing Act (amended by Act No. 9366 of Jan. 30, 2009; hereinafter the same) provides that the method and procedure for establishing a housing association, the standards for qualifications of members of a housing association, and matters necessary for the operation and management of a housing association shall be determined by the Presidential Decree: Provided, That where a regional housing association which has obtained authorization for establishment in an overheated speculative zone under Article 41(1) of the same Act selects its members, the status of members shall not be recognized in accordance with the order of receipt of an application. Accordingly, Article 38 of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 19935 of Mar. 16, 2007) provides that the requirements for qualifications of a housing association member shall be replaced and newly subscribed to the housing association, and Article 39 of the former Enforcement Decree of the Housing Act provides that a person who violated Article 32(6) of the former Housing Act (excluding a housing remodeling association) shall not be subject to criminal punishment under Article 308(5) of the proviso of the Housing Act.

[1] Article 40 of the former Housing Act (amended by Act No. 9366 of Jan. 30, 2009); Article 45 of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 21744 of Sep. 21, 2009) / [2] Articles 32(5), 97 subparag. 6 (see current Article 97 subparag. 7) and 7 (see current Article 97 subparag. 8) of the former Housing Act; Article 38 and 39 of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 19935 of Mar. 16, 2007); Article 5 of the former Rules on Housing Supply (amended by Presidential Decree No. 5318 of Aug. 18, 2006)

[2] Supreme Court Decision 97Da7264, 7271, 7288, 7295, 7301 decided October 10, 1997 (Gong1997Ha, 3416), Supreme Court Decision 2010Da10291 decided May 26, 201 (Gong201Ha, 1285)

Plaintiff 1 and 12 others (Law Firm Barun Law, Attorneys Kim Jung-chi et al., Counsel for the plaintiff-appellant)

Scattering East Forest Housing Association (Law Firm Democratic Law, Attorneys Yoon Jae-sik et al., Counsel for the defendant-appellant)

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

Seoul High Court Decision 2009Na118718 decided November 26, 2010

Of the lower judgment, the part of the lower judgment regarding the claim for cancellation of registration against the Defendant Franchi Forest Association is reversed, and that part of the lawsuit is dismissed. The remainder of the lower judgment is reversed, and that part of the case is remanded to

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding the plaintiffs' appeal

A. Regarding ground of appeal No. 1

Before determining the grounds of appeal, we examine the legitimacy of the lawsuit on this part of the claim for cancellation of registration.

In Article 40 (1) of the former Housing Act (amended by Act No. 9366 of Jan. 30, 2009; hereinafter the same shall apply), a project undertaker shall, with respect to the housing and site constructed by a housing construction project implemented after obtaining approval for the project plan under Article 16 (1), provide that the act of setting security rights, such as mortgage and provisional registration, on the relevant housing and site for sixty days after the date of application for approval for the announcement of invitation of occupants (in the case of a housing association, referring to the date of application for the approval for the project plan), the act of setting the right to lease on a deposit basis, superficies or provisional registration, the act of disposing of the relevant housing and site by means of sale or donation, etc., and the provisions of paragraph (3) provide that, with the exception of the cases of restricting the establishment of mortgage, etc. under paragraph (1), the project undertaker shall not make an application for the registration of ownership transfer, establishment of restricted real right, provisional registration and provisional disposition, etc., under the provisions of paragraph (2) of this Article 4).

As such, the additional registration or the cancellation thereof under Article 40 of the former Housing Act is made by the business entity’s sole application, and in relation to the restoration of the additional registration cancelled at the time of such provision, it is difficult to regard the prospective resident or the business entity as the person liable for registration or the person liable for registration under the registration procedure. However, in a case where any registration is entirely or partially cancelled, a lawsuit seeking cancellation of registration is instituted to recover the cancelled registration, and the person liable for registration files a lawsuit against the person liable for registration against the person liable for registration, who is not the person liable for registration, as such, claiming the restoration of the additional registration cancelled against the business entity who is not the

Therefore, the instant lawsuit may not be deemed unlawful for the Plaintiffs who concluded a sales contract with the Defendant Fiberdong Housing Association (hereinafter “Defendant Association”) to claim restitution of the additional registration cancelled against the Defendant Association, the project undertaker.

Nevertheless, the court below erred by misapprehending the legal principles as to the interest in a lawsuit, since the court below did not err by misunderstanding the legal principles on the interest in the lawsuit.

B. Regarding ground of appeal No. 2

This part of the grounds of appeal is inconsistent with the plaintiffs' primary claim against the defendant union, and it cannot be accepted by itself.

2. Determination ex officio as to the part of Defendant Daelim Industry Co., Ltd. (hereinafter “Defendant Co., Ltd”).

The court below held that the plaintiff's primary claim against the defendant union as the plaintiff's main claim and the additional registration cancelled on the premise of the validity of each contract for sale in this case, and that the plaintiff's conjunctive claim is claiming damages for tort on the premise of the invalidity of each contract for sale in this case or impossibility of performance of the obligation to transfer ownership, and it cannot be combined with the plaintiff's primary claim for damages for tort on the premise of the invalidity of each contract for sale in this case or non-performance of the obligation to transfer ownership. Thus, it is apparent that the plaintiff's primary claim is combined with the primary claim. If the primary claim is filed in the form of a consolidation of the primary and preliminary claim, it is not necessary to judge the conjunctive claim that is not logically compatible, and as long as the plaintiff's primary claim is accepted, it did not judge each conjunctive claim against the defendant union, and did not render a judgment against the defendant company.

However, the plaintiffs' claim for ownership transfer registration against the defendant association and the claim for damages against the defendant company are in a subjective and preliminary co-litigation relationship under Article 70 of the Civil Procedure Act. Such subjective and preliminary co-litigation is a form of litigation in which all co-litigants settle the dispute between the same legal relationship in a lump sum without contradiction (Article 70(2) of the Civil Procedure Act). It is not allowed to render a judgment or render an additional judgment for the remaining co-litigants (see, e.g., Supreme Court Decisions 2007Da36308, Apr. 10, 2008; 2009Da43355, Feb. 24, 2011).

In light of the above legal principles, the lower court should have rendered a judgment on the conjunctive claim against the Defendant Company even if all the Plaintiffs’ claims for ownership transfer registration against the Defendant Company were accepted. Nevertheless, the lower court did not render a judgment on the conjunctive claim against the Defendant Company. In so doing, the lower court erred by misapprehending the legal doctrine on subjective and preliminary co-litigation, thereby adversely affecting the conclusion of the judgment, and such illegality constitutes the matter to be investigated ex officio

3. As to the appeal by the defendant union

A. As to the grounds of appeal Nos. 1 through 4

Article 32(5) of the former Housing Act provides that the method and procedure for the establishment of a housing association, standards for the qualifications of members of a housing association, and matters necessary for the operation and management of a housing association shall be determined by Presidential Decree: Provided, That where a regional housing association which has obtained authorization for establishment within an overheated speculative district under Article 41(1) of the same Act selects its members, the status of members shall not be recognized in accordance with the order of receipt of an application; accordingly, Article 38 of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 19935, Mar. 16, 2007) provides that the requirements for the qualifications of members of a housing association shall be replaced with those of a housing association, and Article 97 subparag. 6 of the former Enforcement Decree of the Housing Act provides that the act of a newly-built housing association shall be jointly owned by 10,000 members, other than those of a housing association (excluding a housing association) under Article 32, and that the act of a newly-built housing association shall not be subject to be subject to 70.

After compiling the adopted evidence, the court below acknowledged the facts as stated in its holding, and determined that each of the sales contracts in this case is valid since the defendant union and the new representative of the defendant union delegated the authority to dispose of the apartment unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit

In light of the aforementioned legal principles and the evidence duly admitted, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, it did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles on interpretation of the covenant of association, the procedure for disposal of collective ownership by non-corporate groups, the compulsory nature of the Housing Act, the legal principles on the essential organization of non-corporate groups and the comprehensive delegation of authority, and by omitting judgment, or by omitting judgment.

B. Regarding ground of appeal No. 5

The court below held that, as long as each of the contracts for sale in this case is effective, since the plaintiffs 1, 2, 3, and 4 did not pay the price of each of the contracts for sale in this case to the defendant association, and received the money deposited in the defendant company, and the remaining plaintiffs deposited in the passbook in the name of the non-party's association and embezzled it to the non-party and thus the defendant union could not receive the purchase price, the above assertion by the defendant association cannot prevent the plaintiffs from claiming the transfer registration of ownership against the defendant association. Thus, the above argument by the defendant association is without merit, and the above argument by the defendant association issued a judgment ordering a simple performance.

However, we cannot accept the above decision of the court below for the following reasons.

According to Article 6 (1) of the sales contract of this case (No. 12-1, etc. of this case), the procedure for the registration of ownership transfer of the apartment land and building at the time of the sales contract of this case is that the purchaser shall pay in full to the defendant association as the payment is completed after the construction of the building, and all expenses (acquisition tax, registration tax, stamp tax, fees, and other public charges) required for the registration of ownership transfer shall be borne by the purchaser of this case. Thus, if the purchase contract of this case which the plaintiffs concluded the sales contract of this case did not adjust public records after the completion of the contract of this case, the remaining payment obligation of the plaintiffs should be executed in preference to the obligation for the registration of ownership transfer of the defendant association. However, if the sale contract of this case which is the bilateral contract of this case does not perform the obligation for ownership transfer transfer registration of the seller, it is sufficient to view that the sale contract of this case has already been completed with the obligation for ownership transfer registration of the purchaser and the purchaser of the apartment as the obligation for ownership transfer registration of each of this case.

However, the above argument by the court below is deemed to include the argument that the plaintiffs' obligation to pay the sale price belongs to the obligation to transfer the ownership of the defendant union and the obligation to perform the preferential or simultaneous performance. Therefore, the court below should have ordered the defendant union to perform the obligation to transfer the ownership in accordance with the argument by the defendant union.

Nevertheless, the court below rejected the above argument of the defendant union. In so doing, the court below did not err by misapprehending the legal principles on prior performance or simultaneous performance relationship under a sales contract, or by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

4. Conclusion

Therefore, the part of the judgment of the court below regarding the claim for the cancellation of registration against the defendant cooperative is reversed. Since this part is sufficient for this court to render a direct judgment, it shall be dismissed pursuant to Article 437 of the Civil Procedure Act. The remaining part of the judgment of the court below shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Poe-dae (Presiding Justice)