The legislative intent of Article 19-2 of the former Housing Site Development Promotion Act and Article 13-3 of the Enforcement Decree of the same Act / The validity of a sales contract for the sale of a housing site that requires the seller to resell the housing site to be supplied in the future before entering into a housing site supply contract as it is, and whether the seller is obligated to cooperate with the procedure of “project implementer’s consent” with respect to the housing site to

In full view of the legislative purport of the former Housing Site Development Promotion Act (amended by Act No. 10303, May 17, 2010); Articles 19-2 and 31-2 of the former Housing Site Development Promotion Act; Article 13-3 (Enforcement Decree of the former Enforcement Decree of the Housing Site Development Promotion Act (amended by Presidential Decree No. 23113, Aug. 30, 201) (hereinafter “Enforcement Decree”) and special cases concerning the acquisition, development, supply, and management of housing sites necessary for housing construction in urban areas to contribute to the stabilization of national residential life and the improvement of welfare, the legislative purport of the Housing Site Development Promotion Act, which is to contribute to the stabilization of national housing and the improvement of welfare, shall be prohibited in principle by providing for special cases concerning the acquisition, development, supply, and management of housing sites necessary for housing construction; however, in light of the circumstances in which the housing site is supplied, it is necessary to grant an opportunity to sell the right to housing site before the registration of ownership transfer; or to exceptionally permit the implementer’s consent to use the housing site for the purpose of directly by examining the housing site.

Therefore, “the consent of a project implementer” prescribed by the Enforcement Decree as the special requirement for the restriction on resale is premised on the fact that a housing site supply contract was concluded with respect to a housing site developed in accordance with the Housing Site Development Promotion Act. Even if a housing site sale contract was concluded with the intent to resell the housing site to be supplied in the future before the conclusion of the said housing site supply contract, it is impossible for the project operator to consent to the sale contract for the housing site, so it is null and void, and it is reasonable to interpret that the seller is not obliged to cooperate with

Articles 1, 19-2, and 31-2 of the former Housing Site Development Promotion Act (Amended by Act No. 10303, May 17, 2010; hereinafter referred to as “Housing Site Development Promotion Act”); Articles 13-3 of the former Enforcement Decree of the Housing Site Development Promotion Act (Amended by Presidential Decree No. 23113, Aug. 30, 201)

Plaintiff (Counterclaim Defendant) (Law Firm Re-Appellee et al., Counsel for the plaintiff-appellant)

Defendant-Counterclaim (Law Firm Trust, Attorneys Kim Tae-tae et al., Counsel for the defendant-Counterclaim plaintiff-appellant)

Busan High Court Decision 2016Na50108, 50115 decided May 25, 2016

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. According to Articles 19-2 and 31-2 of the former Housing Site Development Promotion Act (amended by Act No. 10303, May 17, 2010; hereinafter “Housing Site Development Promotion Act”), a person supplied with a housing site created pursuant to the Housing Site Development Promotion Act may not resell the housing site as it is without using it for the purpose for which the housing site is supplied until the time when the transfer of ownership is registered: Provided, That this restriction may not apply in cases prescribed by the Presidential Decree, and if the housing site is resold in violation of such restriction, the relevant juristic act shall be null and void and subject to criminal punishment. Meanwhile, according to the former Enforcement Decree of the Housing Site Development Promotion Act (amended by Presidential Decree No. 2313, Aug. 30, 201); the “cases prescribed by the Presidential Decree” in the proviso to Article 19-2 (1) means cases where the purchaser obtains consent from the implementer because he/she falls under any of subparagraphs 1 through 9; the “cases prescribed by the Presidential Decree” shall be subject to the first sale of the housing site and public works under the Housing Site Development Promotion Act, etc.

In full view of the legislative purport, etc. of the Housing Site Development Promotion Act, which aims to contribute to the stabilization of national housing and the improvement of welfare by prescribing special cases concerning the acquisition, development, supply, and management of housing sites necessary for housing construction in order to solve the housing shortage in the urban area, the act of resale of housing sites created pursuant to the Act shall be prohibited in principle until the registration of ownership transfer; Provided, That the purport of the provision that the act of resale requires an opportunity to sell the ownership of housing sites prior to the registration of ownership transfer in light of the details of the provision of the housing site, or the requirement that the project operator’s consent should be exceptionally permitted in cases where there is no concern about speculative transactions in light of the use of the housing site concerned, the parties to a resale contract, the reasons for conclusion of a resale contract, and the resale price. Accordingly, it is interpreted that the application for supply of housing sites for the purpose of acquiring the housing site for the purpose of acquiring the housing site to be supplied to the actual users of the housing site for the purpose of use thereof is to prevent the effect of a contract binding upon the parties without such consent.

Therefore, the phrase “the consent of the implementer” stipulated by the Enforcement Decree of the instant case as the special requirement for the restriction on resale is premised on the conclusion of a housing site supply contract with respect to a housing site developed in accordance with the Housing Site Development Promotion Act. Even if the sale and purchase contract with the intent to resell the housing site to be supplied in the future before the conclusion of the said housing site supply contract was concluded, it is impossible for the implementer to consent to the sale and purchase contract for the housing site so that it is null and void and it is reasonable to interpret that the seller is not obliged to cooperate with the

2. According to the reasoning of the first instance judgment as cited by the lower court and the evidence duly admitted, the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) entered into a sales contract with the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) on October 26, 2010, stating that each real estate listed in the list of the lower judgment owned by the Plaintiff is incorporated into the Busan and Jinhae Free Economic Zone Development Zone (hereinafter “Defendant”). As the Plaintiff would be supplied by the Korea Land and Housing Corporation (hereinafter “instant sales contract”) to the Defendant as the implementer of the instant project, the sales contract was concluded with the Defendant to sell the sales price of KRW 72 million (hereinafter “instant sales contract”). On the other hand, the Plaintiff was selected as eligible for relocation measures for the said development project on September 6, 2013, and the Plaintiff entered into the sales contract with the Korea Land and Housing Corporation and its migrants on March 4, 2015 (hereinafter “instant housing site”).

3. Examining these facts in light of the legal principles as seen earlier, the instant sales contract constitutes a contract with the purport to resell the migrants created under the Housing Site Development Promotion Act before the transfer of ownership is registered. Since the instant sales contract was concluded without the consent of the Korea Land and Housing Corporation prior to the conclusion of the sales contract with the Korea Land and Housing Corporation, the executor, and thus becomes null and void. The Plaintiff is not obligated to cooperate with the procedure of applying for consent to resell the housing site from the Korea Land and Housing Corporation, and even if the Plaintiff received the instant housing site by the instant sales contract, such circumstance alone cannot be viewed differently

Nevertheless, the lower court, citing the reasoning of the judgment of the first instance, determined that the instant sales contract was in a state of flexible invalidation that can be retroactively effective upon obtaining ex post consent from the Korea Land and Housing Corporation, and on that premise, determined that the Plaintiff is obligated to cooperate with the Defendant to ensure the validity of the instant sales contract pursuant to the instant sales contract, and that the Defendant is obliged to implement the procedure for applying for the consent to resale to change the buyer’s name regarding the instant sales contract.

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the validity of resale of the migrants who violated Article 19-2 of the Housing Site Development Promotion Act, the interpretation of "the consent of the implementer" as stipulated in the Enforcement Decree of this case, and the validity of sale contract of the migrants housing site without the consent, which affected the conclusion of the judgment.

4. Therefore, without examining the remaining grounds of appeal by the Plaintiff, the judgment of the court below is reversed, and the case is 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 on the bench.

Justices Park Sang-ok (Presiding Justice)