In a case where Gap and Eul completed the registration of ownership transfer under their own name on the grounds of reversion of each real estate trusted to Byung Housing Association, and completed the registration of ownership transfer under Eul's own name on the grounds of the trust property, and immediately re-registered the registration of ownership transfer under Byung's name after completing the registration of ownership transfer under Byung's name on the grounds of the trust; the reconstruction project site at the time of the registration of ownership transfer was completed under Byung's name on the grounds of all the trust for the implementation of the project; and Byung's non-registration certificate of rights and the corporate design of Byung's association was kept on the ground of the trust, the case held that the series of acts conducted on the same day by transferring Eul's ownership of real estate owned by Byung to Eul and Eul's ownership after the completion of the registration of ownership transfer is an evasion of law to evade the application of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, and the establishment of mortgage for the real estate owned by Byung should be deemed to have been carried out with the purpose of establishing the right to collateral security, and the agreement becomes invalid.

Article 24 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7428 of March 31, 2005)

Songdo Rebuilding Housing Association (Law Firm Lee & Lee, Attorneys Kim Yong-nam et al., Counsel for the defendant-appellant)

Daod Co., Ltd.

Defendant Receiving Intervenor (Law Firm, Attorneys Ojin-hwan et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2008Na33865, 33872, 2009Na43128 decided December 11, 2009

The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the Seoul High Court. The appeal by the Defendant and the Intervenor is dismissed. The costs of appeal by the Defendant and the Intervenor are assessed against the Intervenor.

We examine the grounds of appeal.

1. As to the ground of appeal by the defendant and the intervenor

According to Article 24 subparagraphs 3 and 12 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7428, Mar. 31, 2005; hereinafter the same), with respect to "a contract that imposes a burden on union members, other than the matters stipulated in the budget," or "other matters prescribed by Presidential Decree or articles of incorporation as necessary to determine important matters, such as matters imposing a financial burden on union members," a resolution of a general meeting of union members.

According to the reasoning of the judgment below, the court below held that, in addition to the above provisions of the relevant Acts and subordinate statutes, Article 18 subparagraphs 6 and 7 of the plaintiff's articles of incorporation, "matters concerning the contract and dues to become a partner" shall be decided through the resolution of the general meeting, and since it is reasonable to view that the above provisions purport to prevent the establishment of a partnership's property and the difficulty in business achievement due to improper borrowing, etc. of a reconstruction association, etc., the act of the representative without obtaining a resolution of the general meeting of union members pursuant to the Acts and subordinate statutes is invalid, since the act of the representative without obtaining a resolution on the matters to be decided by the general meeting of union members is presumed to be invalid, the third and fourth mortgage contract of this case is a real estate listed in the attached Forms 3 and 4 of the court below, which is owned by the plaintiff to be used as the site for reconstruction construction of this case, and it was concluded with the guarantee obligation of the defendant as a joint plaintiff, the joint plaintiff, the corporation of the court below, and the third and fourth mortgage registration of this case was void.

Examining the reasoning of the judgment below in light of the records, the conclusion of the judgment of the court below is justified.

The court below did not err by exceeding the bounds of the principle of logic and experience and by exceeding the bounds of the principle of free evaluation of evidence, or by misapprehending the legal principles as to the scope of secured obligation and the necessity of the resolution of the general meeting of the plaintiff under the contract, as alleged in the grounds of appeal.

2. Plaintiff’s ground of appeal

The court below rejected the plaintiff's assertion that the establishment registration of the first and second collateral security agreement of this case was null and void since the debtor of the first and second collateral security agreement of this case was acknowledged to be the non-party 1 and 2, not the plaintiff. Thus, the court below rejected the first and second collateral security agreement of this case cannot be viewed as the plaintiff's act of disposal of the plaintiff's property since there is no evidence to prove that the first and second collateral security agreement of this case was owned by the plaintiff, and since there is no evidence to prove that each real estate listed in the attached Tables 1 and 2 list of the court below

However, in light of the facts and records acknowledged by the court below, the non-party 1 completed the registration of ownership transfer under his name on March 16, 2005 with respect to each share of the real estate listed in the separate sheet No. 1 of the court below, which was trusted to the plaintiff, on the ground that the registration of ownership transfer was completed on March 16, 2005 due to the reversion of trust property to Sungwon District Court Sung-nam Branch Branch of Sungnam Branch of the court below. On the same day, the defendant completed the registration of ownership transfer under the above registration No. 6279, and immediately completed the registration of ownership transfer due to the trust under the above registration No. 6280, which was received by the above registration office. The non-party 2 also completed the registration of ownership transfer due to the trust under the above registration office No. 13181, Jun. 14, 2005, which was entrusted to the plaintiff, and completed the registration of ownership transfer under his name due to the above registration office No. 13182, the plaintiff's joint housing construction under the title of the plaintiff 2.

In full view of the above circumstances, it is sufficient to view that a series of acts conducted on the same date and in order from the date when the ownership of the Plaintiff’s real estate was temporarily transferred to Nonparty 1 and Nonparty 2 by means of returning the ownership after the establishment registration was completed is an evasion of the law to avoid the application of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, which requires that the association members be subject to a resolution of the general meeting of association members on the matters that give financial burden to the association members. Thus, if the real estate owned by the Plaintiff is ultimately subject to the burden of mortgage, it is reasonable to deem that the first and second mortgage contract of this case was made for the purpose of establishing the right to collateral security on the real estate owned by the Plaintiff. Accordingly, as long as the Plaintiff became aware of the burden of collateral security on the real estate owned by the Plaintiff, it is not effective because it did not go through the resolution of the general meeting of association members pursuant to Article 24 of the former Act on the Maintenance and Improvement of Urban Areas

Nevertheless, the court below's rejection of this part of the plaintiff's assertion solely on the ground that the debtor is Nonparty 1 and 2 in the name of the contract establishing a right to collateral security, is erroneous in the misapprehension of legal principles as to the matters to be resolved by the general meeting of partners under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents,

The ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The appeal by the Defendant and the Intervenor is dismissed, and the costs of appeal are assessed against the Intervenor. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)