[1] Whether a lease apartment sales contract can be established even where a lease apartment agreement was concluded between a lessor and a lessee upon expiration of the mandatory rental period, but the amount of the pre-sale conversion price was not specified at the time when the agreement was concluded (affirmative); and whether the court may determine the pre-sale conversion price pursuant to the former Enforcement Rule of the Rental Housing Act (affirmative)

[2] Whether the provisions of the former Rental Housing Act and other relevant Acts and subordinate statutes are mandatory (affirmative) and the validity of a sales contract concluded based on a pre-sale conversion price exceeding the amount based on the standard for calculation under the provision (i.e., the excess within the scope)

[1] Article 3-3 (see current Article 9) of the former Enforcement Rule of the Rental Housing Act (amended by Ordinance of the Ministry of Construction and Transportation No. 481 of December 14, 2005) / [2] Article 15 (1) (see current Article 21 (1) and (3) (see current Article 21 (10)) of the former Rental Housing Act (amended by Act No. 8966 of March 21, 2008), Article 9 (5) (see current Article 13 (5)), Article 13 (3) (see current Article 23 (8)), Article 3 (1) (10) of the former Enforcement Rule of the Rental Housing Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs of June 20, 2008), Article 9 (5) (see current Article 13 (5)), Article 13 (3) (see current Article 23 (8) of the former Enforcement Rule of the Rental Housing Act (wholly amended by Ordinance of the Ministry of Land, Transport and Fisheries)

[1] Supreme Court en banc Decision 2009Da97079 Decided April 21, 201 (Gong2011Sang, 993)

Plaintiff 1 and 32 (Attorney Lee Young-chul, Counsel for the plaintiff-appellant)

Plaintiff 2 and 40 others (Law Firm Ro-young et al., Counsel for the plaintiff-appellant)

Dongnam Housing Industry Co., Ltd. (Attorney Yoon-nam et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2009Na58274, 58281 decided August 13, 2010

The part of the judgment of the court below against plaintiffs 1, 3, 4, 5, 8, 10, 11, 13, 14, 17, 19, 21, 23, 25, 26, 30, 31, 33, 34, 36, 37, 38, 51, 54, 55, 56, 59, 61, 62, 66, 68, 71, 72, and 73, which are the lawsuits of the deceased non-party 1, and this part of the case is reversed and remanded to the Seoul High Court. The defendant's appeal is dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. As to the establishment of a sales contract

Article 3-3 [Attachment Table 1] of the former Enforcement Rule of the Rental Housing Act (amended by Ordinance of the Ministry of Construction and Transportation No. 481, Dec. 14, 2005; hereinafter “former Enforcement Rule of the Rental Housing Act”) provides for detailed criteria for calculating the pre-sale conversion price of rental housing, such as construction cost, appraisal price, construction cost, housing site cost, and pre-sale conversion price. Therefore, where a lessor and lessee agree on the pre-sale conversion price upon the expiration of the lease period of a leased apartment, even if the pre-sale conversion price is not specified at the time when the agreement is concluded, the pre-sale conversion price amount may be determined by the former Enforcement Rule of the Rental Housing Act (see, e.g., Supreme Court Decision 2004Da2984, Dec. 9, 2004).

The court below determined that since the procedures for the selection of appraisal business entities, determination of objects of sale, report on the conversion of the sale in lots to the Si interest market, and the procedure for the conclusion of the sale in lots after the conclusion of the contract for sale in lots between the lease business operators and lessees fall under the follow-up procedures that are conducted in accordance with the standards prescribed by the Rental Housing Act and subordinate statutes, the plaintiffs expressed their intent to purchase the apartment of this case by sending a written cooperation for sale in lots to the defendant on April 31, 2003 under the Rental Housing Act, and that even without the specific pre-sale conversion price on August 20, 203, the agreement that the defendant would submit the plan for sale in lots to the parcelling-out promotion committee is not merely a mere expression of the guidelines for sale in lots, but it should be deemed that the whole lessee's expression of consent to

In light of the above legal principles and records, the above fact-finding and judgment of the court below are justified, and there is no error in the misapprehension of legal principles as to the establishment of a sales contract as alleged in the grounds of appeal.

B. As to the assertion of refusal or renunciation of a sales contract

The court below held that since the plaintiffs wanting to purchase the apartment of this case from the time when the first agreement was reached and submitted a written consent to purchase the apartment of this case to the defendant, and in particular, after the third agreement, the plaintiffs filed the lawsuit of this case on April 1, 2008, which was immediately after the third agreement, thereby establishing their intention to purchase the apartment of this case, and that they want to purchase the apartment of this case even with the third amount claimed by the defendant as preliminary claim at the court below, the plaintiffs cannot be said to have rejected or renounced the conclusion of the sales contract itself.

In light of the records, the above fact-finding and judgment of the court below are justified, and there is no error of law by misapprehending the legal principles as to the refusal or renunciation of a sales contract, as alleged in the grounds of appeal.

2. As to the ground of appeal by misapprehending the legal principles as to the calculation of 34 pre-sale conversion conversion prices filed by the plaintiffs

A. The lower court acknowledged the following facts as stated in its reasoning.

(1) Article 3-3 [Attachment Table 1] of the former Enforcement Rule of the Rental Housing Act merely because the sales contract was concluded on the basis of the pre-sale conversion price for publicly constructed rental house in violation of the standards for calculating the pre-sale conversion price for publicly constructed rental house under Article 3-3 [Attachment Table 1] cannot be readily denied the validity of the relevant sales contract under private law, and it may not be allowed as it violates Article 3-3 of the former Enforcement Rule of the Rental Housing Act only if it essentially

(2) However, although the base price for sale in lots determined by the third agreement is somewhat larger than the base price calculated on the basis of the appraisal conducted by the first and second agreements, it is the amount finally approved through the return and supplement of the time of the Si of Si of Si of Si of Si of Si of Si of Si of the competent administrative agency. In light of the fact that most lessees other than the plaintiffs, other than the plaintiffs, concluded the sale in lots with the above sale in lots, even if some errors were found in the calculation process, it cannot be deemed excessive to the extent that the right of preferential sale by the lessee would be deprived, and thus, its judicial effect cannot be denied.

B. However, the above determination by the court below is difficult to accept for the following reasons.

(1) Relevant statutes, such as the former Rental Housing Act (wholly amended by Act No. 8966, Mar. 21, 2008; hereinafter “former Rental Housing Act”) aim at facilitating the construction of rental housing and stabilizing national housing conditions, imposing various restrictions on rental business operators to achieve the objectives. In particular, setting the priority right to pre-sale conversion of rental housing after the lapse of the mandatory rental period and setting the standards for pre-sale conversion of rental housing in detail so that a rental business operator can prevent arbitrary pre-sale conversion of rental housing and sell pre-sale housing units at a reasonable pre-sale conversion price. Nevertheless, if a rental business operator interpreted that pre-sale conversion of rental housing units is not binding upon the above pre-sale conversion standards, it is necessary for a rental business operator to stipulate that pre-sale conversion of rental housing should be made in violation of the former Rental Housing Act’s regulations and regulations to prevent rental business operators from entering into a pre-sale conversion contract and allow tenants to hold pre-sale conversion of rental housing units in violation of the former Rental Housing Act’s penal purpose.

(2) According to the reasoning of the judgment below, although the Defendant set the pre-sale conversion price of the apartment of this case at the time of the public announcement of the recruitment of the construction costs and the arithmetic mean of the appraisal values pursuant to the Rental Housing Act and the Construction Division Management Guidelines, the Defendant alone requested the appraisal by selecting two appraisal companies at 17 square meters after the first agreement. The fact that the base price of the pre-sale conversion price calculated based on the appraisal results is 61,134,000 won in the case of 17 square meters, and 81,272,000 in the case of 23 square meters in the case of the pre-sale conversion price calculated based on the appraisal results by requesting the appraisal to the appraisal company at 2 location after the second agreement on March 2004, the base price of the pre-sale conversion price calculated based on the appraisal results is 5,030,952 won in the case of 17 square meters, 72,741,136 square meters in the case of 23 square meters, 62000,300 square meters in the case.

Meanwhile, Article 3-3(1) [Attachment 1] [Attachment 1](2)(b)(1) of the former Enforcement Rule of the Rental Housing Act provides that the arithmetic mean of the appraisal value assessed by two appraisal business entities based on the “date determined to sell the relevant house” shall be the arithmetic mean of the appraisal value assessed by two appraisal business entities; and one appraisal business entity shall be selected respectively by a lessor and a lessee; but if a lessor and a lessee have any inevitable reason not to select, the head of the competent Si/Gun shall be selected.

Therefore, in the instant case, the reasonable pre-sale conversion price under Article 3-3 [Attachment Table 1] of the former Enforcement Rule of the Rental Housing Act should be calculated on the basis of the “date determined to sell”. This can be seen as around August 20, 2003, which was agreed between the Plaintiffs and the Defendant on the basis of the “date determined to sell”. However, since the appraisal by the two appraisal businesses in the place of selection in compliance with the statutory standard is deemed to be the base price calculated based on the second agreement, the pre-sale conversion price can be calculated on the basis of the two appraisal businesses in which the record can be known. However, the pre-sale conversion price can not be calculated on the basis of a legitimate selected appraisal business entity’s results, rather than on the basis of the appraisal business entity’s lawfully selected appraisal business, and the base point of evaluation may not be applied as of February 2, 2008.

(3) Nevertheless, even if the lower court agreed to conclude a pre-sale conversion price calculated in violation of the standards for calculating pre-sale conversion conversion price under the relevant statutes, such as the former Rental Housing Act, on the premise that such agreement cannot be denied even if it was effective under the private law, the lower court erred by misapprehending the legal doctrine on the interpretation and application of the pre-sale conversion price calculation standard under the relevant statutes, such as the former Rental Housing Act, and thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the plaintiffs, the part against the above plaintiffs among the judgment below is reversed, and this part of the case is remanded to the court below for a new trial and determination. The defendant's appeal is dismissed in entirety as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)