New Franc Co., Ltd. (Law Firm Taeok, Attorney Hah-ho et al., Counsel for defendant-appellant)

The debtor (Law Firm U.S., Attorney Lee Im-soo, Counsel for defendant-appellant)

Suwon District Court Order 2012Kadan5676 dated September 25, 2012

1. Revocation of the order of the court below

2. The provisional disposition order issued on March 18, 201 by this Court as to a case of provisional disposition prohibiting real estate disposal between the above parties shall be revoked by this Court.

3. The request for provisional disposition of this case is dismissed.

4. The total expenses incurred in filing an application shall be borne by the obligee.

1. Basic facts

According to the records, on March 18, 2011, the creditor filed an application for provisional disposition against the debtor on March 18, 201, with the right to demand sale under Article 18-2 of the Housing Act as the preserved right, and the creditor has received a provisional disposition of 9,917/800 of the 1,313 square meters of the 1,313 square meters of the 1,313 square meters of the 1,317 square meters of the 1,313 square meters of the Gagdong-dong (hereinafter “instant real estate”). Accordingly, the debtor filed an application for provisional disposition as of June 18, 2012 with the court below ordering the provisional disposition to authorize the provisional disposition of this case on September 25, 2012.

2. Determination

A. In full view of the overall purport of the record and examination of this case, the following facts are recognized.

(1) On September 28, 2010, the creditor was a project proprietor who obtained the approval of the housing construction project plan by making the project owner, including the instant real estate, as a project site, and on October 5, 2010, the creditor agreed with the debtor to purchase in order to exercise the right to demand sale under Article 18-2(1) of the Housing Act, such as sending the content-certified mail to the debtor for consultation on the purchase of the instant real estate, but did not reach the sale.

(2) On May 26, 201, the creditor filed a lawsuit against the debtor to sell real estate and received KRW 516,123,450 from the creditor on May 26, 201, and at the same time, the creditor obtained a judgment that “the debtor shall implement the procedure for the registration of ownership transfer for sale of the real estate in this case to the creditor on February 10, 201, and deliver the real estate in this case to the creditor”. Accordingly, the creditor filed an appeal (this Court Decision 2011Na2235), but all of the appeals (Supreme Court Decision 201Da113073) were dismissed, and the judgment on March 15, 2012 became final and conclusive.

(3) After that, the obligor urged the obligee to perform the performance following the conclusion of the above sales contract, but the obligee failed to comply with it. Ultimately, the obligor prepared documents necessary for the registration of ownership transfer of the instant real estate and urged the obligee to perform the payment obligation pursuant to the above sales contract by May 15, 2012, and notified the obligee that the sales contract will be rescinded upon the lapse of the above period if the obligor fails to pay the price within the said period.

(4) The creditor has not performed the obligation to pay the price to the debtor until now, or has not provided it to him.

B. According to the above facts, the obligation of the creditor under the sales contract for the instant real estate concluded due to the exercise of the claim for sale under Article 18-2(1) of the Housing Act and the obligation of the debtor to pay the price and the obligation of the debtor to pay the ownership transfer registration procedure are concurrently performed. However, since the creditor failed to pay the price without justifiable grounds despite the debtor's performance, the above sales contract was lawfully rescinded on May 15, 2012 due to the debtor's cancellation notice (it is not possible to restrict the debtor's exercise of the right of rescission on the ground of the debtor's failure to pay the price, even if the Housing Act grants a claim for sale to the project undertaker

C. Therefore, the application for provisional disposition of this case is insufficient to vindicate the right to be preserved.

3. Conclusion

Therefore, the order of the court below that approved the provisional disposition order of this case is unfair, and all of the provisional disposition order of this case is revoked and the application of this case is dismissed. It is so decided as per Disposition.

Judges Lee Jae-young (Presiding Judge)