[1] In a case where public construction rental housing, the mandatory rental period of which has expired, is converted for sale in lots pursuant to Article 21(2) of the Rental Housing Act, which was wholly amended by Act No. 8966 of March 21, 2008, due to a rental business operator’s default, bankruptcy, etc., whether a rental business operator is obligated to preferentially convert the rental housing to the lessee who is

[2] In a case where Gap corporation, a rental business operator of public construction rental apartment, did not comply with the tenant's request for sale after bankruptcy was declared bankrupt, and filed a lease apartment sales claim with the rental business operator under the pre-sale conversion conversion agreement approved directly by the head of the Gu with the tenant's representative meeting, the case holding that Gap corporation's bankruptcy trustee is obligated to implement the procedure for ownership transfer registration of the relevant apartment to lessees according to the sales contract established with the pre

[3] Requirements to constitute a bankruptcy claim and whether a simple expectation of the occurrence of a claim constitutes a bankruptcy claim (negative)

[4] In a case where Gap corporation, a rental business operator of public construction rental apartment, was declared bankrupt, and tenant Eul et al, et al. exercised the right to claim sale of the apartment house against Eul et al. after obtaining approval for conversion for sale in lots directly from the head of the competent Gu pursuant to the newly amended Rental Housing Act (wholly amended by Act No. 8966 of Mar. 21, 2008), and the trustee in bankruptcy of Gap et al. asserted that the sale contract established by the trustee in bankruptcy was "unful bilateral contract" under Article 335 of the Debtor Rehabilitation and Bankruptcy Act and thus the trustee in bankruptcy can choose the performance or rescission of the sale contract, the case holding that the above sale contract does not constitute "unful bilateral contract" under Article 335 of the Debtor Rehabilitation and Bankruptcy Act

[5] In a case where a rental business operator of public construction rental housing concluded a real estate management trust agreement with a trust company to manage and preserve the ownership of rental housing until the time of completion of sale conversion, and completed the registration of trust of rental housing buildings, etc. and the registration of transfer of ownership transfer, etc. in the name of the trust company, and thereafter, a lessee who did not comply with the request for sale in lots even if the rental business operator was declared bankrupt and filed a claim for sale of rental housing with approval for sale in lots, the case holding that "the completion of a sale contract", which is the ground for termination of

[6] Where a real estate management trust has been established for the purpose of preserving and managing the ownership of a rental house until the completion of conversion for sale in lots, whether “a rental business operator may be entitled to receive a rental house from a trust company” (negative in principle)

[7] The case holding that Article 335 of the Debtor Rehabilitation and Bankruptcy Act does not apply to the above contract agreement, in case where Gap corporation agreed to receive the construction cost as the land allotted by the authorities in recompense for development outlay for development outlay for the land equivalent to the construction cost after entering into a contract for the land readjustment project with Eul and Eul, and constructed a public rental apartment in part of Eul, which was transferred in the name of the buyer in the purchase and sale register of land allotted by the authorities in recompense for development outlay for development outlay for the land corresponding to the construction cost in accordance with the agreement, and later Gap corporation suspended the construction work due to default under the status of 74.791% of the construction cost ratio of the contract, but Eul was declared bankrupt, Eul corporation's union notified Gap trustee in bankruptcy of confirmation as to whether the contract was implemented or terminated under Article 335 of the Debtor Rehabilitation and Bankruptcy Act

[1] Article 21(1) of the Rental Housing Act (wholly amended by Act No. 8966, Mar. 21, 2008; hereinafter “the Act”) requires a rental business operator to preferentially convert housing units into lots to lessee who falls under any of subparagraphs 1 through 5 of Article 60 of the Housing Act (hereinafter “public rental housing units”) in cases where a rental business operator constructs housing units with funds from the National Housing Fund or constructs housing units developed through public projects under Article 60 of the Housing Act among housing units constructed after the expiry of the mandatory rental period after obtaining approval of the project plan pursuant to Article 16 of the Housing Act (hereinafter “the Housing Act”). Article 21(1) of the same Act provides that a rental business operator shall first convert housing units into lots to lessee who resides in the relevant rental housing units at the time of conversion into lots. Article 21(2) of the same Act provides that “Where a rental business operator goes bankrupt and other cases prescribed by the Presidential Decree, a lessee who resides in the relevant rental housing unit at the time of conversion into lots is not subject to parcelling-out.”

[2] In a case where Gap corporation, a rental business operator of public construction rental apartment, did not comply with the tenant's request for sale in lots even after the bankruptcy was declared, and filed a lease apartment sales claim with a rental business operator based on the pre-sale conversion price approved directly by the head of the Gu having jurisdiction over the tenant's representative meeting, the case holding that Gap corporation, a rental business operator, has the obligation to implement the procedure for the transfer registration of ownership of the relevant apartment building and the procedure for the change of purchaser's name on the land ledger of development recompense land, as the lessee, who resides in the rental apartment at the time of sale in lots, was insolvent or bankrupt, regardless of whether the leased apartment was housing owned, and as long as the lessee exercised the right to demand sale by obtaining a direct approval for sale in lots pursuant to the procedure under Article 21 (5) and (8) of the Rental Housing Act (hereinafter "Act"), as long as the lessee exercised the right to demand sale in lots with the approval of the pre-sale conversion price established by the approved pre-sale conversion price.

[3] Article 423 of the Debtor Rehabilitation and Bankruptcy Act provides that "a claim on the property arising from a cause that occurred before the declaration of bankruptcy against the debtor shall be a bankruptcy claim." In this case, "claim arising from a cause that occurred before the declaration of bankruptcy" does not require specific confirmation of the contents of the claim already occurred at the time the declaration of bankruptcy is declared or the maturity comes, but it is sufficient if at least the major cause of the claim is preserved before the declaration of bankruptcy. If it is merely a simple expectation right for the occurrence of the claim,

[4] The case holding that in a case where Gap corporation, a rental business operator of public construction rental apartment, was declared bankrupt, and the tenant, including Eul, exercised the right to sell the relevant apartment after obtaining approval for conversion for sale directly from the head of the competent Gu pursuant to the newly amended Rental Housing Act, which was wholly amended by Act No. 8966 of March 21, 2008, and the tenant claimed that Gap corporation, a trustee in bankruptcy, who exercised the right to sell the apartment, can choose the performance or cancellation of the sales contract because the sales contract constituted "unful bilateral contract" as stipulated in Article 335 of the Debtor Rehabilitation and Bankruptcy Act, since Eul's claim for transfer registration of ownership of the relevant apartment building, etc. based on the sales contract which was formed by the tenant's exercise of the right to request sale by Eul et al. was clearly caused by the cause before the bankruptcy is declared, and since such a sales contract was not established yet at the time of the declaration of bankruptcy, there is no room to apply the right to choose the termination of the contract as stipulated in Article 335 of the Debtor Rehabilitation and Bankruptcy Act.

[5] In a case where a rental business operator of public construction rental housing entered into a real estate management trust agreement with a trust company for the purpose of managing and preserving the ownership of rental housing, and completed the registration of the trust of rental housing and the registration of transfer of ownership in the name of the trust company, and where a lessee who did not comply with the request for conversion for sale even after a rental business operator was declared bankrupt, filed a claim for sale of rental housing with the approval of conversion for sale directly by a lessee, the case held that the sale contract should be interpreted as having been completed in terms of "sale for sale" as it means a lessee's obligation to pay the pre-sale price based on the pre-sale conversion price and a rental business operator's obligation to transfer ownership of rental housing to a rental business operator for the purpose of performing the obligations such as transfer of ownership in order for a rental business operator to perform the obligations such as transfer of ownership. However, the meaning of "sale for sale", which is the ground for termination of the trust contract, should be interpreted as "sale for sale for sale in lots" as the purpose of the trust agreement.

[6] If a rental business operator, who is a beneficial interest, entrusted a trust company with an intention to preserve and manage the ownership of a rental house until the completion of sale in lots, grants a rental business operator a right to return the rental house from the trust company to his/her creditor, according to the pledgee’s exercise of the pledge right, the rental business operator may be at risk of not able to recover the ownership of the relevant rental house. This cannot be deemed unjust in that the trust of the rental house can be changed into a lessee’s preferential right to conversion in lots. Therefore, in light of the legislative purpose of the additional registration system, such as the restriction on disposal in lots and prohibition of the establishment of the mortgage, and the purport of the provision that recognized exceptions to the additional registration, where a real estate management trust was established for the purpose of preserving and managing the ownership until the completion of sale in lots of the rental house, barring special circumstances, the rental business operator’s right to return the rental house from the trust company cannot be subject to the nature of the right to return the rental house

[7] The case holding that in case where Gap corporation agreed to receive the construction price as the land secured by the recompense for development outlay for development recompense for development recompense for the land equivalent to the construction price after entering into a contract for the land readjustment project with Eul and the land secured by the development recompense for development recompense for development recompense for the land Eul, and constructed a public rental apartment for part of the land under the agreement, which was transferred in the name of the buyer of the purchase and sale ledger of land secured by development recompense for development recompense for development recompense for development recompense for the land under the agreement, and later the Gap corporation suspended the construction due under the status of 74.791% of the construction work progress rate for the contract, but was declared bankrupt, Eul corporation notified Gap trustee in bankruptcy pursuant to Article 335 of the Debtor Rehabilitation and Bankruptcy Act, Eul corporation shall be deemed to have fully performed its obligation as the contractor by transferring the land secured by the development recompense for development recompense for development recompense for development outlay for the land to Gap corporation, the contractor, and in this case, Article 335 of the Debtor Rehabilitation and Bankruptcy Act shall not be applied from the beginning.

[1] Article 21 (1) and (2) of the former Rental Housing Act (amended by Act No. 9541 of March 25, 2009) / [2] Article 21 (2), (5), and (8) of the former Rental Housing Act (amended by Act No. 9541 of March 25, 2009) / [3] Article 423 of the Debtor Rehabilitation and Bankruptcy Act / [4] Article 335 of the Debtor Rehabilitation and Bankruptcy Act / [5] Articles 105 and 536 of the Civil Act, Article 98 subparagraph 6 of the Trust Act, Article 21 (2), (5), and (8) of the former Rental Housing Act (amended by Act No. 9541 of March 25, 2009) / [6] Article 21 (2), (5), and (8) of the former Rental Housing Act (amended by Act No. 9541 of March 25, 2007) / [3] Article 2084 of the former Rental Housing Act

Plaintiff 1 and 418 others (Attorney Cho Chang-chul et al., Counsel for the plaintiff-appellant)

The bankruptcy debtor, the bankruptcy debtor, the bankruptcy debtor corporation, and one other (Law Firm, Kim & Lee LLC, Attorneys Doh-ho et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 201Na14488 delivered on May 2, 2011

Busan High Court Decision 2009Na19857 decided August 23, 2011

All appeals are dismissed. The costs of appeal are assessed against the Defendant’s Intervenor, and the remainder are assessed against the Defendants.

The grounds of appeal are examined.

1. Objects of adjudication of this Court;

According to the records, some of the plaintiffs of the judgment below can be known to the court of final appeal that has lawfully withdrawn the lawsuit. Therefore, in the judgment of the court below, the remaining part of the judgment excluding the part concerning each of the plaintiffs' corresponding real estate and shares as stated in the plaintiff's list in the judgment of the court of final appeal [in particular, the remaining portion of the judgment below excluding the part concerning each of the plaintiffs' corresponding shares in the plaintiff's corresponding real estate and shares in the plaintiff's list in the judgment of the court of final appeal 25647.1908/38214 shares in the 25647.1908/38214 shares of the judgment (hereinafter "the apartment site in this case") excluding the part concerning each of the plaintiffs' corresponding real estate and shares in the judgment of this court

2. On the first ground for appeal

A. Article 21(1) of the Rental Housing Act (wholly amended by Act No. 8966, Mar. 21, 2008; hereinafter “the Act”) provides that when a rental business operator sells a house constructed with funds from the National Housing Fund or constructs a house on a housing site developed by a public project (hereinafter “public rental housing”) after the expiration of the mandatory rental period, the rental business operator shall first convert the house into sale in lots to the lessee falling under any of subparagraphs 1 through 5 of Article 60 of the Housing Act among the houses constructed with approval of the project plan pursuant to Article 16 of the Housing Act after the expiration of the mandatory rental period, the rental business operator shall make a conversion into sale in lots (hereinafter “public rental housing”) to the lessee who is a State agency or corporate lessee at the time of conversion in lots. Article 21(2) of the same Act provides that “Notwithstanding paragraph (1), the lessee who resides in the relevant rental housing at the time of conversion in lots may first convert the house into sale in lots.”

In full view of all the circumstances seen below, including the contents and form of the above provisions, the legislative purpose and background of the Act, and relationship with other relevant provisions, Article 21(2) of the Act is reasonable to interpret that Article 21(2) of the Act provides that the lessee who resides in the relevant rental house at the time of conversion for sale in lots is entitled to preferential conversion into lots even if he/she is a housing owner, and that the rental business operator has the obligation to preferential conversion into lots to the lessee.

① Article 21(1) of the Act provides, in principle, the duty of conversion for sale in lots to a lessee of a house without a housing, and thus, in principle, rental housing residing by a lessee of a house at the time of conversion for sale in lots can be sold to a third party, including the lessee, regardless of whether the lessee’s default, bankruptcy, etc. Therefore, if Article 21(2) of the Act is interpreted as the delegation of the right to allow the rental business operator to choose the preferential conversion for sale in lots to a lessee of a house without a housing, it would eventually be an meaningful legislation.

(2) Article 21(3), (4), (1), and (2) of the Act provides that a rental business operator shall apply to the Mayor, etc. for approval of conversion for sale in lots, and in such cases, the Mayor, etc. shall grant approval of conversion for sale in lots within 30 days. Paragraph (7) of the same Article provides that where a lessee fails to comply with conversion for sale in lots for at least six months even after a rental business operator obtained approval for conversion for sale in lots, a rental business operator may sell the relevant rental house to a third party under the conditions as prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs. Article 13(7) of the Enforcement Rule of the Act delegated by the Minister of Land, Transport and Maritime Affairs (wholly amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 19 on June 20, 2008; hereinafter the same shall apply) provides that a rental business operator shall supply the rental house remaining after conversion for sale in lots pursuant to Article 21(7) of the

Each of the above provisions of the Act was newly established in the Act, and it is sufficient for a rental business operator to submit a plan for the conversion of rental housing to the market, etc. along with the documents on the basis of calculation of the conversion price. However, the above provision strengthened control over whether the pre-sale conversion price calculated under the Act and subordinate statutes should be approved from the market, etc., including the pre-sale conversion price. Meanwhile, the approved pre-sale conversion price is equally applied not only to the pre-sale conversion of rental housing but also to the sale to a third party, thereby fundamentally preventing rental business operators from changing the rental housing system into a means for economic interest of rental business operators. As such, under the circumstance where the price has become so long as the price has become so, it is difficult to present reasonable grounds to enable rental business operators to sell rental housing to a third party according to the

③ At the time of the pre-amended Act by Act No. 7598 of July 13, 2005, the pre-sale conversion right was granted to only the lessee who is the householder of a house without a house. The pre-sale conversion right applied only to the pre-sale conversion right was bound to undergo the pre-sale conversion according to the price demanded by the rental business operator. In particular, there was a closure that is not properly converted for sale due to differences between the rental business operator and the general lessee surrounding the pre-sale conversion price in the case of default and bankruptcy by the rental business operator. Accordingly, the amendment of the pre-amended Act by Act No. 7598 of July 13, 2005, under Article 15(1) of the pre-amended Act, the scope of pre-sale conversion right limited to the pre-existing lessee of a house without a house should be extended to the tenant without a house, and under Article 15(2), the provision related to pre-sale conversion of the pre-sale conversion right should be applied to all lessee residing in the rental house.

④ Article 21(5) of the Act provides that where a rental business operator fails to apply for approval for conversion for sale in lots for at least one year after the lapse of the mandatory period of lease, dishonor, bankruptcy, or other cases prescribed by Presidential Decree, a lessee may directly apply for approval for conversion for sale in lots with the consent of at least 2/3 of the total number of lessees. Paragraph (8) of the same Article provides that where a rental business operator fails to comply with conversion for sale in lots for at least six months after the approval for conversion in lots was granted, a lessee may file a claim for sale according to the conversion for sale in lots approved. Since each of the above provisions of the Act was newly established in this Act, as long as the Act provides that a lessee who is the subject of the exercise of the right to apply for approval for conversion in lots or the right to claim for sale in lots can purchase the relevant rental house regardless of the lessor’s intent by exercising the right to request sale, it is logical to understand that a lessee of a house in lots has a preferential right to purchase in lots.

(5) Article 22(1) of the Act provides that where a rental house for public construction is sold by auction under the Civil Execution Act, a lessee entitled to preferential conversion for sale pursuant to Article 21 of the Act may, until the date of sale, provide a guarantee under Article 113 of the Civil Execution Act and report a rental business operator’s preferential purchase of a rental house at the same price as the highest bid price, at the same time as that of the highest bid price, at the time of the amendment in 2005, to the effect that a lessee who is entitled to preferential conversion for sale extends the scope of a preferential right holder at the time of the amendment in 2005 so that he/she can continue to reside after receiving a successful bid of the relevant rental house through the exercise of a preferential right to purchase at the time of the auction of a rental house, thereby preventing the lessee’s housing defect and economic loss. Therefore, the scope of a preferential right holder for sale for sale should be construed equally.

In addition, Article 16(3) of the Act and Article 13(2)2(b) and (4) of the Enforcement Decree of the Act (wholly amended by Presidential Decree No. 20849, Jun. 20, 2008) provide that, even if the mandatory rental period is within the leased period, where a rental business operator cannot continue to lease due to default, bankruptcy, etc., and where a public construction rental house is converted for sale after obtaining approval from the Mayor, etc. for conversion for sale in lots, "it shall be converted for sale in lots preferentially to lessee who satisfies the requirements under Article 21(1) or (2)." Thus, there are no special circumstances to view that the scope of the right to conversion in lots is different,

(6) The purpose of this Act is to promote the construction of rental housing and to stabilize the residential life of people by prescribing matters necessary for the construction, supply and management of rental housing and the rental housing business (Article 1). To achieve this purpose, the National Housing Fund provides various support, such as the long-term and low-interest preferential use of rental housing in the construction of rental housing in the National Housing Fund and appropriation in the expenditure budget for construction of rental housing (Article 5), ownership of rental business operators by the State, local governments, public enterprises, etc., preferential sale of housing sites (Article 10) and preferential supply of housing unsold in lots or rental housing (Article 12), preferential installation of arterial facilities (Article 13), special recognition of Acts on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (Article 14) and other Acts provide multi-dimensional support, such as mitigation of floor area ratio

The Act prohibits the sale of rental housing (Article 16), the obligation to subscribe to guarantee deposit for lease deposit (Article 17), the restriction on the establishment, etc. of mortgage prior to conversion for sale in lots (Article 18), the standards for the terms and conditions of lease, such as qualifications, methods of selection, lease deposit, rent, etc. of lessees of constructed rental housing, shall be prescribed by Presidential Decree (Article 20), and where a rental house is converted for sale in lots for public construction for which the mandatory period of lease has expired due to the restriction corresponding to the above various support, the Act shall first make a conversion for sale in lots to a lessee without a house, and the matters concerning the method, procedure, price, etc. of such conversion for sale in lots shall be prescribed by Presidential Decree (Article 2

In light of the structure of overall regulations imposing various restrictions on rental business operators with various support in order to achieve the legislative purpose and purpose of this Act, it does not mean that a reasonable pre-sale conversion price should be applied by granting a preferential pre-sale right to a lessee of a house who was excluded from pre-sale conversion in order to rectify the problems arising from the existing laws and regulations in the event of default, bankruptcy, etc. by a rental business operator (see Supreme Court en banc Decision 2009Da97079, Apr. 21, 201).

7) Article 335 of the Housing Lease Protection Act (amended by Act No. 7428, Mar. 31, 2005; hereinafter “Integrated Bankruptcy Act”) provides that when a lessor is declared bankrupt, when a lessee satisfies the requirements for counterclaim under Article 3(1) of the Housing Lease Protection Act, Article 335 of the Housing Lease Protection Act shall be excluded (Article 340(4)), which provides for the trustee in bankruptcy to exercise the right to terminate an executory contract with respect to executory bilateral contract, and Article 340(4) of the Housing Lease Protection Act recognizes the right to preferentially pay the deposit from the proceeds from the sale of the house belonging to the bankrupt estate, and Article 8 of the Housing Lease Protection Act provides for the right to preferential repayment (Article 415 of the Housing Lease Protection Act).

However, in the case of public construction rental housing, it is difficult to deny that there is a certain limit in preventing the lessee's housing default and economic loss in the case of default and bankruptcy due to the limitation of the first priority right of the National Housing Fund and the protection of small-value security deposit. Therefore, it is difficult to readily conclude that the legislation of the Act is a measure to lose balance in the relationship with the bankruptcy creditors, in order to further protect the lessee who is the economically weak.

B. According to the reasoning of the judgment below and the record, the case of Pyeongtaek Ho was transferred from the supplementary intervenor association to register the apartment site of this case within the land annexed to the land readjustment project zone and was registered in the sale ledger of land allotted by the National Housing Fund, and constructed apartment buildings by 827 households with support from the National Housing Fund on the ground. The case of Pyeongtaek Ho-to-land was a rental business operator as prescribed by the Act, and the lessee of this case was not qualified in the process of tenant recruitment, and some households recruited the apartment of this case as the lessee of the housing in the first-come first-come first-served manner as prescribed by the Rules on Housing Supply, and the lessee of this case filed a claim for sale of the apartment of this case in accordance with the pre-first-served order. The case of Pyeongtaek Ho-to-first was not in arrears on December 26, 2006 and was declared bankrupt on April 25, 2008 but did not comply with the tenant's request for sale in lots. Accordingly, it can be known that the council of lessees of this case, including the plaintiffs, filed on July 30,

Examining the above facts in light of the legal principles as seen earlier, the Plaintiffs, who reside in the apartment of this case at the time of sale in lots, have the right to preferentially convert the relevant apartment according to Article 21(2) of the Act regardless of whether or not they own the housing, and as long as such Plaintiffs exercise their right to sell after obtaining approval for conversion in lots directly in accordance with the procedures prescribed in Articles 21(5) and (8) of the Act, Defendant bankruptcy trustee, who is the party in charge of the lawsuit, is obligated to implement the procedure for the transfer of ownership of the relevant apartment building and the procedure for the change of purchaser’s name on the sale ledger of land ownership (hereinafter referred to as “sale registration procedure, etc. for apartment buildings, etc.”) on the purchase and sale price of the relevant apartment building based on the sale contract

The reasoning of the judgment of the court below is partially inappropriate, but the conclusion that the defendant bankruptcy trustee is obligated to implement the procedure for the registration of ownership transfer of the relevant apartment building, etc. to the plaintiffs including the "house lessee" is just, and there is no error in the misapprehension of legal principles as to the scope of persons eligible for preferential sale for sale in lots in the case of default of rental business operators and bankruptcy under Article 21 (2)

3. On the second ground for appeal

Article 423 of the Integrated Bankruptcy Act provides that "a claim on the property that has arisen before the declaration of bankruptcy against the debtor shall be a bankruptcy claim." In this case, a claim that has arisen before the declaration of bankruptcy does not require that the contents of the claim have already been specifically determined or that the maturity has arrived at the time of the declaration of bankruptcy, and at least a major cause of the claim has been secured before the declaration of bankruptcy, but it does not constitute a bankruptcy claim if it is merely a simple expectation right for the occurrence of the claim.

However, according to the reasoning of the judgment below, the plaintiffs who were not the lessee of the apartment of this case can be found to have exercised the right to claim the sale of the apartment of this case against Cho Chang-jo with the approval of conversion for sale in lots directly from the head of Ulsan-do North Korean government in accordance with the newly established provisions of the Act that came into force from June 22, 2008, which was after the declaration of bankruptcy for

Examining the above facts in light of the legal principles as seen earlier, it is clear that the right to claim the registration of ownership transfer of the relevant apartment building, etc. based on the sales contract established by the plaintiffs' exercise of the right to claim the sale does not have arisen before the bankruptcy is declared against the right to claim the sale of the apartment building, etc., and since such a sales contract has not yet been established at the time of the declaration of bankruptcy, there is no room for the application of the right to cancel the contract by the trustee in bankruptcy under Article 335 of the Integrated Bankruptcy Act, premised on

The reasoning of the judgment below is partly inappropriate, but it is just in the conclusion that the plaintiffs' claims such as the plaintiffs' right to claim for ownership transfer registration of the apartment building, etc. of this case against the defendant bankruptcy trustee and the defendant bankruptcy trustee's right to cancel the contract is denied. There is no error in the misapprehension of legal principles as to the requirements for bankruptcy claims under the Consolidated Bankruptcy Act or the right to cancel the contract for bilateral contract not performed by both parties

4. On the third and fourth grounds

A. According to the reasoning of the judgment below, in order to manage and preserve the ownership of the apartment of this case until the completion of conversion for sale in lots, the following facts are revealed: (a) the Defendant trust company entered into a trust contract for managing and preserving the ownership of the apartment of this case with the Defendant trust company; and (b) the beneficiary entered into the trust registration and ownership transfer registration of the building, etc. in the name of the trust company; and (c) the trust principal is a rental business operator; (d) the trust principal is a rental deposit in the apartment of this case and the company; (e) the property acquired by subrogation of the trust real estate; and (e) the trust period is the period from the execution date of the trust contract to the completion date of the conversion for sale in lots; and (e) the beneficiary can apply for the payment, settlement, and cancellation, etc. of the trust fees to the trustee at the time of the termination of the trust contract; and (e) the right of pledge for the purpose of the trust interest of this case is to secure obligations to the Intervenor

B. As long as a sales contract for conversion into parcelling-out has been established between the Plaintiffs and Pyeongtaek-si, the obligation to pay the purchase price based on the pre-sale conversion price to be borne by the Plaintiffs and the obligation to transfer ownership to the instant apartment building, etc. to be borne by Pyeongtaek-si is in a simultaneous performance relationship. Therefore, in order to perform the obligation such as ownership transfer registration, it is necessary to refund the instant apartment that is placed in trust with the Defendant trust company first. However, if the meaning of the “the completion of parcelling-out conversion”, which is the reason for termination of the instant trust contract, is interpreted to have been completed to have fulfilled each of the above obligations under the sales contract, which is the reason for the termination of the instant trust contract, even if the establishment of the sales contract for conversion into parcelling-si was not completed, it would not be possible to refund the instant apartment, and this would result in the result of compelling the Plaintiffs to perform the advance payment of the purchase price. Accordingly, in terms of the smooth performance of the sale into parcelling-out.”

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the interpretation of "sale contract completion" as the ground for termination of the trust contract of this case.

C. Article 12-3(1) of the former Rental Housing Act (amended by Act No. 8534, Jul. 19, 2007; hereinafter “former Act”) provides that a rental business operator shall not establish a security right, such as mortgage or provisional registration, before the conversion for sale in lots, with respect to a rental house constructed by a housing construction project implemented with approval for a business plan under the Housing Act; and Paragraph (2) of the same Article provides that a rental business operator shall apply for an additional registration with regard to a rental house under the provisions of paragraph (1) at the same time as an application for registration of ownership preservation, and that a rental business operator shall file an application for establishment of a limited real right, seizure, provisional seizure, provisional disposition, etc. before the conversion in lots, with respect to a rental house under the provisions of paragraph (1). Paragraph (3) of the same Article shall be null and void after the date of additional registration

The purpose of these regulations is to prohibit rental business operators from taking certain disposals such as the creation of a mortgage on rental housing so that lessees can acquire ownership effective by conversion for sale in the future, and to additionally add the purpose of the prohibition to prevent the third parties from incurring losses due to such disposal restrictions, and to deny the effect of registration, seizure, provisional seizure, provisional disposition, etc. due to the creation of a security right, etc. which is prohibited from disposing of rental housing after additional registration, thereby protecting lessee prior to the creditors of rental business operators.

Meanwhile, Article 12-3(2) of the former Act and Article 9-5(2) of the former Enforcement Decree of the Act (wholly amended by Presidential Decree No. 20849, Jun. 20, 2008) upon delegation by the former Act provide that where a rental business operator is the State, a local government, the Korea National Housing Corporation, or a local government-invested public corporation, or a trust company, etc., an exception to the duty of additional registration of prohibited matters is recognized. This is due to the fact that, in the case of the State, etc., there is no risk of disposal prohibited by default, bankruptcy, or law, and in the case of a general rental business operator, when a trust of a rental house is established, the relevant rental house can be separated from the property rights of the rental business operator, as well as the trustee's own property, and can be seen as having the same effect as the additional

However, if a rental business operator has entrusted a rental house to a trust company in order to preserve and manage the ownership until the completion of sale in lots of rental housing, and a rental business operator, who is a beneficial interest, grants a rental business operator the right to receive a refund of rental housing from the trust company to his/her creditor, according to the pledgee’s exercise of the pledge right, the said rental business operator may be at risk of not being able to recover the ownership of the relevant rental housing, and this cannot be deemed unjust in that the trust of rental housing can be changed to a lessee’s preferential right to purchase in lots. Accordingly, in light of the legislative purpose of the additional registration system, such as the restriction on disposal in lots and prohibition on the establishment of a mortgage, and the purport of the provision that recognized exceptions to the additional registration, in cases where a real estate management trust is established for the purpose of preserving and managing the ownership until the completion of sale in lots of rental housing, barring any special circumstance, the right to receive a refund of rental housing from the trust company can not be subject to the nature

Examining the above facts in light of the legal principles as seen earlier, since the trust of this case was established only for the purpose of managing and preserving the ownership of the apartment of this case until the completion of sale for sale in lots, so long as the sale contract for sale in lots was concluded between the plaintiffs and Pyeongtaek-si, the purpose thereof has been achieved. As long as the trust was terminated, the defendant Korea Land Trust is obligated to return the rental housing of this case corresponding to the trust principal, the beneficiary, pursuant to the trust agreement of this case, and since the right pledge established for the purpose of the right to claim the return is not effective, the right pledge established for the purpose of the right to claim the return is not effective. Thus, Pyeongtaek Chang-to, the beneficiary of this case, need

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the validity of a pledge for trust interest of a rental business operator as otherwise alleged in the ground of appeal.

D. Article 475 of the Civil Act provides that the obligee may demand the return of the certificate of credit if the obligee fully performs the obligation. However, the right to claim the return of the certificate of credit does not have concurrent performance relationship with the repayment (Supreme Court Decision 2003Da22042 Delivered on August 19, 2005).

According to the reasoning of the judgment below, the court below rejected the defendant Korea Land Trust's simultaneous performance defense on the ground that the obligation to return the beneficiary's certificate and the obligation to return the trust property of the defendant Korea Land Trust are not in the relationship of simultaneous performance, on the ground of the following circumstances: (a) the beneficiary's certificate based on the trust contract of this case can be deemed as falling under the bond certificate, not the securities or

In light of the above legal principles and records, the above judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the duty to return the beneficiary's certificate of beneficial interest and the duty to return the trustee's object of trust.

5. On the fifth ground for appeal

Article 335(1) of the Integrated Bankruptcy Act provides that when both the bankrupt and the other party have not yet completed the performance of a bilateral contract at the time that the bankruptcy is declared bankrupt, the bankruptcy trustee may rescind or terminate the contract, or perform the debtor's obligation and claim the other party's performance of obligation. In the case of paragraph (1), the other party may demand that the bankruptcy trustee cancel or terminate the contract within a reasonable time specified by Article 335(1) of the Integrated Bankruptcy Act and that the other party may demand confirmation as to whether to cancel or terminate the contract or to fulfill the other party's obligation within a reasonable time specified by Article 335(2) of the same Act shall be deemed to have terminated or terminated the contract if the bankruptcy trustee does not confirm within the reasonable time specified by Article 335(1) of the same Act. Even if a party's obligation under the bilateral contract is a debt, it is clear that Article 335 of the Integrated Bankruptcy Act is applicable only to the other party's obligation under ordinary bankruptcy proceedings (see Supreme Court Decision 2

According to the reasoning of the judgment below and the records, the supplementary intervenor association entered into a contract for the construction cost of KRW 100,803,926,00 with the land annexed to the land annexed to the land annexed to the land annexed to the land annexed to the land annexed to the land of this case and entered into a contract for the construction cost of KRW 100,80,803,926,000 with the land annexed to the land annexed to the land annexed to the land annexed to the land. Accordingly, the supplementary intervenor association entered into a contract for the land annexed to the land annexed to the land annexed to the land of this case with the land annexed to the land annexed to the land of this case, and changed the purchaser's name on the sale ledger of the land annexed to the land annexed to the land annexed to the land annexed to the land of this case with the land annexed to the land of this case with the land annexed to the land of this case with the land annexed to the land of this case with the land annexed to the land annexed to the land of this case. The supplementary intervenor association failed to give a definite reply against the bankruptcy trustee or the land.

If the facts are as above, the supplementary intervenor association should be deemed to fully perform the obligation of the contractor by transferring the land allotted by the authorities in recompense for development outlay equivalent to the same amount to the contractor in lieu of the payment of the construction price in accordance with the terms and conditions of the contract in this case. In this case, the contract in this case cannot be deemed to be a bilateral contract which is not performed by both parties at the time of the declaration of bankruptcy, and therefore, Article 335 of the Integrated Accounting Act does not have room

Therefore, the court below erred in holding that the contract of this case between Pyeongtaek Ho and a supplementary intervenor's association constitutes a bilateral contract not performed by both parties at the time when the contractor's bankruptcy is declared, and that the contract of this case was rescinded pursuant to Article 335 (2) of the Integrated Dosan Act. However, the court below rejected the defendants' defense disputing the validity of the plaintiffs' exercise of the plaintiffs' right to sell the apartment site of this case on the ground that it was impossible to return the apartment site of this case to the supplementary intervenor's association in accordance with the prohibition of separate disposal of an aggregate building, notwithstanding the cancellation of the contract of this case. Thus, this error of the court below did not affect the conclusion of the judgment. The ground of appeal on this part

6. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the Intervenor and the remainder are assessed against the Defendants. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: omitted

Justices Park Poe-dae (Presiding Justice)