GaSdi case (Attorney Lee Im-soo, Counsel for the defendant-appellant)

Head of Daegu Metropolitan City Southern-gu

April 26, 2013

Daegu District Court Decision 201Guhap3250 Decided December 21, 2012

1. Revocation of a judgment of the first instance;

2. On July 11, 201, the Defendant’s disposition to return a report on the change of construction participants to the Plaintiff is revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On August 7, 2002, the building site of this case (hereinafter “the building site of this case”) was combined with 172 square meters (number 1 omitted), 155 square meters (number 2 omitted), 115 square meters (number 3 omitted), 406 square meters (number 4 omitted), 21 square meters (number 5 omitted), 18 square meters (number 6 omitted), 38 square meters (number 7 omitted) large-scale 38 square meters prior to the merger on June 17, 2008, each of the following buildings were (number 1 omitted), (number 2 omitted), (number 3 omitted), (number 3 omitted), and (number 4 omitted:

(3) 2. 2. 1: 4. 2. 2. 2. 1: 4. 2. 2. 4. 1. 1. 2. 1. 2. 2. 4 . 1. 1. 2. 1. 2. 4. 1. 1. 2. 1. 2. 1. 2. 4, 198 (No. 260.85) 1. 4. 1. 2. 1. 2. 1. 1. 2. 2. 1. 1. 4, 208 (No. 2. 4. 1. 1. 1. 1. 2. 1. 2. 4, 2004) 1. 1. 2. 1. 3, 2008 (No. 2. 4. 1. 27. 1986) 1. 2. 18. 2. 1, 1985

B. The New Housing Construction Co., Ltd. (hereinafter “New Housing”) completed the registration of ownership transfer on February 5, 2004 on the instant building site and the Nos. 1 of the said Table (hereinafter “New Housing”) based on sale and purchase on October 27, 2003. The New Housing was removed from the No. 1 of the above Table around February 10, 2004, and the building ledger was closed on March 5, 2004.

C. On March 18, 2004, the new house obtained a building permit (hereinafter “instant permit”) from the Defendant to construct apartment houses (hereinafter “instant building”) with the purpose of selling on the instant building site owned by the new house, with the ground floors, 14 floors above ground, total floor area of 4,129.94 square meters, reinforced concrete structure, apartment buildings (30 households), and Class II neighborhood living facilities (1 and 2 floors).

D. On March 24, 2004, the National Agricultural Cooperative Federation established a right to collateral security and superficies with respect to the instant building site. From March 25, 2004 to April 15, 2004, the Gyeongnam Cultural Heritage Research Institute conducted a cultural genetic index survey on the Japanese unit of the instant building site, and the existing buildings in the instant building site were demolished for the construction of collective housing at the time of the investigation.

E. While the new house reported on July 27, 2004 and carried out the new construction of the instant building, the new house entered into a contract with 14 households out of the instant building to be completed in the future from March 19, 2004 to December 29, 2006.

F. In the instant building, a new house had been built up to 13 floors above the ground and a building that can be the object of independent ownership separated from land was due to a default on payment.

G. On June 25, 2007, Steel Co., Ltd. applied for a compulsory auction on the instant building site, and thereafter the court auction was conducted. On February 27, 2008, ELF Housing Co., Ltd. acquired the ownership of the instant land through the compulsory auction procedure.

H. Meanwhile, on November 11, 2008, there was a decision to commence compulsory auction on the instant building, and on November 13, 2008, the preservation registration was completed on November 13, 2008. The Plaintiff purchased the instant building at the compulsory auction on November 18, 2009 and completed the registration of ownership transfer on December 14, 2009.

I. On May 23, 201, the Plaintiff filed a report on the change of the owner and the contractor to the Defendant (hereinafter “instant report”).

(j) On July 11, 2011, the Defendant issued a disposition to return the instant report (hereinafter “instant disposition”) on the grounds that the Plaintiff did not submit the certificate of registration of housing construction project on the following grounds: (i) document attesting the right to housing site ownership; (ii) document attesting the change of the former owner’s name or the change of legal relationship; (iii) supervision contract; and (iv) supervision

[Reasons for Recognition] Facts without dispute, Gap's statements, Gap's statements, 2, 4, 5, 7, 8, 10, 11, Eul's statements, 2, 4 through 20 (including all of the serial numbers), and the purport of the whole pleadings

2. The plaintiff's assertion

Since the report of this case should be accepted for the following reasons, the disposition of this case which rejected it is unlawful.

A. Since the Plaintiff acquired ownership of the building of this case from the new house, which is the owner of the building, through an auction, and succeeded to the status of the owner under the building permit, the report of this case must be accepted as a matter of course.

B. The “documents evidencing the change in the right relationship” to be attached to the report on change of building owner under Article 11(1) of the Enforcement Rule of the Building Act refers to “documents evidencing the change in the ownership relationship of the building,” and it does not mean “documents evidencing the right to the ownership of the building,” and the Plaintiff satisfied all the documents prescribed in the said provision by submitting “documents evidencing the right to the ownership of the building site” and “documents evidencing the sale permit and the sale price completion,” and “a certified copy of the register. Furthermore, the purpose of the instant report by the Plaintiff is not a multi-family housing but a apartment

C. The Plaintiff concluded a supervision contract with the previous supervisor of the building of this case and confirmed that there was no change in the supervision, so the designation of the supervisor is unnecessary. Since the Plaintiff entered into a joint business agreement with a limited liability company registered as the housing construction business operator, it satisfies the requirements for registration of the housing construction business operator as required under Article 9

3. Related statutes;

Attached Table 1 is as stated in the relevant Acts and subordinate statutes.

4. Determination

A. Determination on the first argument

According to Article 16(1) of the former Building Act (amended by Act No. 10755, May 30, 201; hereinafter “former Building Act”), Article 12(1)3 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 2429, Dec. 12, 2012; hereinafter “former Enforcement Decree of the Building Act”), and Article 11(1) of the former Enforcement Rule of the Building Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 552, Dec. 12, 2012; hereinafter “former Enforcement Rule of the Building Act”), the transferee of a building under construction shall report to the permitting authority to replace the owner of the building on the previous building. In order for the transferee to receive the report on the change of the owner of the building under construction, the repair of the owner of the building submitted by the permitting authority does not merely receive the report on the acquisition of the building under construction, but also cause the change of the owner’s construction permit (see Supreme Court Decision 94. 294.

Therefore, even if the plaintiff acquired ownership of the building of this case in the process of compulsory auction, it cannot be deemed that he has succeeded to the status of the owner under the building permit without reporting the change of the owner. Therefore, the plaintiff's assertion

B. Judgment on the second argument

1) According to Article 16(1) of the former Building Act and Article 12(1)3 of the former Enforcement Decree of the Building Act, a building owner shall be reported to the head of a Si/Gun/Gu when he/she changes the building. Meanwhile, according to Article 11(1)1 of the former Enforcement Rule of the Building Act, a person who acquires a building under construction or large-scale repair from a person who has obtained permission or made a report on the construction or large-scale repair of a building shall submit a report on the change of the building owner’s name to the permitting authority within seven days from the date of the occurrence of the fact.

Article 11(1)1 of the above Enforcement Rule provides that “documents evidencing the change in the ownership of a building subject to permission” shall be construed as “documents evidencing the change in ownership for the following reasons.”

(1) Since a building permit has the character of an object, an administrative agency as an administrative agency shall conduct a formal examination of human elements, such as whose owner is the owner in granting the permit. In addition, a building permit may be freely transferred along with the alteration of a right to a building subject to permission, and accordingly, the effect of the building permit is transferred along with the alteration of a right to the building subject to permission, and is not transferred by a separate approval disposition (see Supreme Court Decision 2010Du2296, May 13, 2010).

② The “documents evidencing the fact of change in the title relationship” prescribed in the above Enforcement Rule is equivalent to the “written consent for change in the name of the owner before the change” in the form of the provision. In the case of “written consent for change in the name of the owner before the change,” the new house, which is the owner of the instant building, lost ownership in the instant land, shall be deemed to be able to report the change of the owner’s name, along with the written consent for change in the name, even though the new house, which is the owner of the instant building, lost ownership in the instant land. However, the interpretation that the corresponding “documents evidencing the change in the title relationship

③ Article 6 (1) 1-2 (b) of the former Enforcement Rule of the Building Act provides that in cases of constructing multi-family housing for sale, a person who purchases multi-family housing shall submit an application for construction permission to protect the purchaser of multi-family housing along with “documents proving the right to own the site for construction.” Article 12 (4) of the former Enforcement Decree of the Building Act provides that “any person who intends to obtain a building permit shall submit an application for construction permission along with relevant documents to the permitting authority as prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs.” However, Article 9 (1) of the former Enforcement Decree of the Building Act provides that “The person who intends to obtain a building permit shall submit an application for construction permission along with relevant documents (related documents prescribed in Article 6 of the former Enforcement Rule). However, this does not mean that an application for change of the building permit should be accompanied by the relevant documents prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs (in cases of a building owner, related documents prescribed in Article 11 of the former Enforcement Rule).

④ Although there is no room for the owner to obtain a building permit to prove the ownership of the site, which is the site for the building, and to meet the requirements for the continued existence of the building permit, continuous execution of the construction work, and completion inspection, it would be more effective to make the new owner who has no choice but to have an interest and interest in the construction of the remaining building that has lost the ownership of the building under construction even if so, to the previous owner of the building, rather than to issue a corrective order on the ownership of the site for the building and the verification thereof, and to obtain a close interest and strong interest in the construction of the building, and to make the said corrective order as above is reasonable and consistent with the substantive legal relationship.

(5) In addition, in cases where the previous owner of a building who lost ownership of the building under construction has no choice but to be interested and interested in the construction of the building, and the previous owner of the building has issued a corrective order concerning the ownership of the site of the building and the verification thereof, and where the previous owner of the building has failed to comply with the corrective order (it is obvious that most previous owners intend not to comply with the corrective order because the previous owner is not obligated to comply with the order and there is no need to implement it in reality) and that the previous owner of the building has failed to comply with the order for cancellation of the construction permit, the order for suspension of construction, or the order for removal of the building under construction, or neglect without giving the previous owner an inspection of the completion, on account of such circumstances,

2) In light of the above legal principles, it is not necessary to attach documents proving ownership of the building site of this case to the report of this case, and it is sufficient to attach documents proving that the building site of this case was acquired by transfer of this case. According to the statement No. 1-2 of the evidence No. 1-2 of this case, the plaintiff's report of this case was accompanied by a certified copy of the register of this case concerning the building of this case (the registration of transfer of ownership was completed due to a compulsory auction on November 14, 2009 in the future of the plaintiff on November 18, 2009). The above certified copy constitutes "documents proving alteration of rights" as stipulated in Article 11 (1) of the former Enforcement Rule of the Building Act.

3) Therefore, the rejection of the instant report on the ground that documents evidencing the right to own a site should be attached is unlawful.

C. Judgment on the third argument

1) According to Article 25(1) of the former Building Act, Article 19(1) of the former Enforcement Decree of the Building Act, and Article 11(2) of the former Enforcement Rule of the Building Act, where a building owner constructs a building for the purpose, size, and structure prescribed by Presidential Decree, he/she shall designate an architect as a construction supervisor and require him/her to supervise the construction. When a construction supervisor is changed, the building owner shall report the change of the construction supervisor in attached Form 4 within seven days from the date of change.

However, according to the results of fact-finding on the evidence Nos. 1-1 and 3-3 and the fact-finding on the Dowon Construction Office of the court of first instance, Nonparty 2, who was appointed as the construction supervisor at the time of the permission of this case, submitted the written waiver of the supervisor around Nov. 2004 to the defendant, and thereafter, the plaintiff can be acknowledged as not having submitted the supervision contract without stating the supervisor at the time of the report of this case.

However, the report of the change of the project supervisor is not necessarily required to be accompanied by the report of this case, which is the "report of the change of the project owner or contractor," and the rejection of the report of this case is unlawful.

2) According to Article 9 of the former Housing Act (amended by Act No. 11690, Mar. 23, 2013); Articles 10(1) and 11(1) of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 2294, Jun. 29, 2011); a person who intends to operate a housing construction project with at least 30 households of multi-family housing is registered with the Minister of Land, Transport and Maritime Affairs; however, there is no evidence to acknowledge that the Plaintiff was registered as a housing construction project operator.

However, the rejection of the instant report on the ground that the instant report was not made on the ground that the instant report was not made on the ground that the instant building construction business was not registered, on the ground that separate sanctions were imposed on the said business (see, e.g., Article 97 subparag. 1 of the Housing Act), and there is no legal basis to regard the registration of the housing construction business owner and

5. Conclusion

Therefore, the disposition of this case is unlawful, so the plaintiff's claim is accepted for reasons, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance is revoked and the disposition of this case is revoked and it is so decided as per Disposition.

[Attachment Form 5]

Judges Lee Jae-dae (Presiding Judge)