Plaintiff 1 and two others (Attorney Song-jin, Counsel for the plaintiff-appellant)

Seocho River District Housing Association and 1 other (Law Firm Barun, Attorneys Choi Young-ro, Counsel for the plaintiff-appellant)

June 28, 2005

Seoul Central District Court Decision 2003Ga383493 Delivered on September 21, 2004

1. Based on the main claim that was changed in exchange at the trial, the Defendants will implement each procedure for the registration of ownership transfer on January 11, 2001 with respect to one half of each of the real estate listed in the separate sheet with respect to the Plaintiffs.

2. The costs of lawsuit shall be borne by the Defendants through the first and second trials.

In the first place, the Defendants performed each procedure for the registration of ownership transfer on January 11, 2001 or November 20, 2002 with respect to one half of each of the real estates listed in the separate sheet. In the second place, the Defendants performed each procedure for the registration of ownership transfer on January 11, 2001 or November 20, 202 with respect to one half of each of the real estates listed in the separate sheet No. 1, 3, and 4 with respect to each of the real estates listed in the separate sheet No. 1, 3, and 4 with respect to each of the real estates, and jointly and severally, paid 315 million won and the amount equivalent to 20% per annum from the day following the delivery of the written request for correction of the purport of the claim on June 8, 2005 to the date of complete payment (the Plaintiff added the plaintiff's claim to the first instance claim in exchange for the first instance claim in addition).

1. Basic facts

The following facts are either disputed between the parties, or acknowledged by taking into account the following facts: Gap evidence 4, Gap evidence 5-1 through 4, Gap evidence 6-8, Gap evidence 9-1 through 4, Gap evidence 10, Gap evidence 13-1, 2, Gap evidence 14-2, Gap evidence 16-18, Eul evidence 16 through 18, Eul evidence 16-2, Eul evidence 3-1, 2, Eul evidence 3-1, 4-6, and non-party 1's testimony of the court of first instance, and the testimony of non-party 2 of the court of first instance shall not interfere with the following recognition.

A. In around 1999, the Hanwon-dong Housing Association (hereinafter “Defendant Association”) intended to build a partnership apartment on the ground, such as the 67-2, 67-3, and 67-5, Seocho-gu Seoul Howon-dong, Seocho-gu, Seoul, but its construction site was insufficient. However, it decided to purchase the above 67-4 land, which is its neighboring land, and concluded a contract with the plaintiffs, who are the above land owners, to purchase the above land at KRW 1.4 billion on September 21, 199.

B. However, as the Defendant Union did not pay the down payment of KRW 100 million per contract date and did not pay the remainder of the sales price, the Plaintiffs Union intended to cancel the said sales contract. However, the Defendant Union requested the Plaintiffs to enter into a new sales contract by changing only the payment method for the purchase price. Accordingly, on January 11, 2001, the Plaintiffs and the Defendant Union entered into a new contract to sell the above 67-4 land at KRW 1.4 billion. However, on the payment method of the purchase price, the down payment shall be replaced by KRW 160 million already paid, and the down payment shall be paid in reality on the above date, and the remainder amount of KRW 140 million shall be paid in 1.14 million among the remainder of the payment, instead of paying the money, the Plaintiff Union agreed to grant members’ right to sell the 4-household unit (hereinafter “instant sales contract”).

C. According to the instant sales contract, the Defendant Union paid 160 million won to the Plaintiffs on the day of the contract, and issued to the Plaintiff 1 a written apartment sales contract for each apartment unit with respect to the two households, Plaintiff 2, and each apartment unit. The Plaintiff 1 issued to the Plaintiff 1 a receipt confirming that the sales price for each apartment unit for each apartment unit was 570 million won, and the sales price for each apartment unit was 285 million won in full.

D. On the other hand, on May 29, 2001, the defendant Construction Co., Ltd. (which concluded a construction contract with the first new public corporation, but was changed to the defendant Construction Co., Ltd. due to the failure of the above company; hereinafter "the defendant's completion construction") selected as the contractor and entered into a contract for the construction of an apartment with the total of 83 households in 31 square meters (48 households in allocation of union members and 35 households in general), and the union members paid 285 million won per household with the payment method of the construction price, and the remaining construction price was agreed to cover the remainder of the apartment, excluding the portion of the share allotted by the union members.

E. In concluding the above construction contract, the Defendants are jointly project undertakers under the Housing Construction Promotion Act, other relevant Acts and subordinate statutes, and provisional contracts (Article 3(1) of the contract), and are responsible and responsible for the Defendants’ obligations and obligations (Article 9 of the contract), and all affairs related to the business shall be performed by the Defendants under the name of the joint project undertakers (Article 9 of the contract). The registration of preservation of the apartment and welfare facilities occupied by the association members after the completion of the construction project shall be handled with the responsibility and expenses of the Defendant association or the Defendant’s association members (Article 10 of the contract), and the sales contract for the association members also indicates the name of the Defendant construction (Article 14(1) of the contract), and the agreement was concluded to open and manage the

F. Following that, on June 15, 2001, the Defendant Union was authorized to establish an association with 48 members of the association, and the Defendants began to construct the said apartment building after obtaining approval from the joint project proprietor in accordance with Article 33(1) of the former Housing Construction Promotion Act on July 10, 201.

G. On March 9, 2002, the Defendant Cooperative allocated the number of housing units with 48 households allocated to its members by lot. Among them, among them, 305, 405, 605, and 705 (hereinafter collectively referred to as the “instant apartment unit”) decided to move to the Plaintiffs for the implementation of the instant sales contract, and excluded the apartment from the unit by lot from the beginning, and around that time, notified the Plaintiffs that the apartment unit to be transferred to the Plaintiffs was finalized.

H. However, on June 20, 2003, the Defendant Union decided to pay the Plaintiffs in cash the remainder after deducting the amount already paid from the total purchase price agreed at the time of the instant purchase and sale contract without completing the registration of ownership transfer on the instant apartment. On June 20, 2003, the Defendant Union deposited KRW 1,256,967,122, including principal and interest, with the Plaintiffs as the principal and interest as the principal, and the construction of completion of the instant apartment between the Plaintiffs and the Defendant Union would be responsible for the occurrence of a problem with the Plaintiffs regarding the instant apartment between the Plaintiffs and the Defendant Union. On September 2003, the Defendant Union distributed No. 405 among the instant apartment to Nonparty 3, and 305 to Nonparty 4, the executive officer of the Defendant Construction, and 605 to Nonparty 5, and the Defendant Construction Co. 6, the executive officer of the Defendant Construction, who completed the instant sales contract, concluded a contract for sale in general form

I. On September 25, 2003, the Defendants received the certificate of usage inspection for the above apartment as joint project undertakers. As to the apartment of this case ( Plaintiffs 1, 305, 405, 605, and 705) by the Plaintiffs, the Plaintiffs filed an application against the Defendants for a provisional injunction against the disposal of real estate by claiming the ownership transfer registration against the Defendants as the preserved right, and the provisional injunction was decided by the Seoul Central District Court on October 10, 2003, and the registration of ownership preservation was completed as to the apartment of this case for which the registration of provisional injunction was not registered upon entrustment of the provisional injunction registration pursuant to the above provisional injunction decision.

2. Determination on the cause of claim and Defendant’s assertion

A. Determination on the cause of the claim

According to the above facts, the plaintiffs and the defendant association agreed to sell a partnership apartment to be constructed later as payment in kind of the purchase price at the time of the sales contract, and as such, the apartment of this case was specified as apartment to be transferred to the plaintiffs at the time of drawing lots, so the defendant association is obligated to implement the procedure for the registration of transfer of ownership of the apartment of this case.

Next, as seen earlier, as to whether Defendant Construction is liable for the registration of ownership transfer to the Plaintiffs, as seen earlier, the Defendants jointly operated the association housing from the beginning as a joint project proprietor with respect to the construction of the association housing and the inspection of the use thereof. As such, the Defendants, once they registered the preservation of the entire apartment, shall be held in the position of completing the registration of ownership transfer to the union members or the general buyers, and as long as Defendant Union is liable for the registration of ownership transfer to the Plaintiffs, Defendant Construction shall also be held in the position of completing the registration of ownership transfer (as to the apartment to be allocated to the Plaintiffs, according to the above-mentioned relation of recognition, in principle, the authority and responsibility for the apartment to be allocated to the union members are held by the Defendant Union, and Defendant Construction is limited to the apartment to be registered as the nominal owner. In this case, it constitutes part of the apartment already allocated to the union members, and if Defendant Union bears the obligation of ownership transfer registration, Defendant Construction shall also be held liable for its completion).

B. Determination of the defendants' assertion

(1) As to this, the Defendants asserted that the delivery of the partnership apartment sales contract at the time of the instant sales contract is for the purpose of securing the payment of the remainder of the sales contract, and the Defendant’s association’s payment of the remainder of the sales contract is extinguished if it pays the remainder of the sales contract. However, in light of the fact that there is no provision on the language of the sales contract of this case and the payment period or interest for the remainder of the sales contract of this case, it is reasonable to regard the above apartment sales

(2) In addition, the Defendants asserted to the effect that, even if the agreement at the time of the instant sales contract was entered into in accord and satisfaction agreement, apartment buildings are not specified to be transferred to the Plaintiffs, so the Plaintiffs cannot file a claim for the registration of transfer against the instant apartment buildings.

Since the right to sell the apartment house to the defendant association, which had been held by the plaintiffs under the sales contract of this case, is not specified at the time of sale, it shall be deemed that there was an implied agreement between the parties to specify the apartment house when there is a trend of apartment house among the members of the association later (as to the construction procedure of the association apartment, the apartment lot is the procedure with the largest interest among the members of the association, but in general, if other members allow to leave the apartment house of this case, which is located on the apartment unit's preference to the plaintiffs, for the purpose of transferring it to the plaintiffs, the parties to the above specific agreement, and even if not, it can be seen that there was an implied agreement between the parties to the above specific agreement. The defendant association, the debtor association, after drawing the apartment house, was specified in the apartment lot, or immediately after the designation of the object to be performed with the plaintiffs' consent after the completion of the construction of the above apartment house, or the defendant association, even after a considerable period of time, did not register the ownership transfer to the plaintiffs, it can be deemed that the plaintiffs applied for provisional disposition of this case.

The Defendants again asserted that, according to the construction contract form between the Defendants, the first union established 48 members, but the actual union members were not more than 43 members at the time of the establishment, and that, with the aim of increasing the construction cost for the Defendant’s completion construction, the construction of the Defendant’s completion of construction on behalf of the Defendant with the right of disposal was agreed to pay 285 million won per household to the Defendant Union in cash instead of having the right of disposal. Therefore, it cannot be said that the Defendant Union excluded the instant apartment from the subsequent unit lottery cannot be said to specify the subject matter of the instant sales contract.

According to the statement of evidence Nos. 1 and 1, it is necessary to establish a housing association because the defendants' assertion is merely an agreement among the defendants, and it is insufficient to reverse the fact that the above facts are the general sale of housing to be distributed to the members of the housing association, and the change of the number of members and the members of the association is required. However, in light of the statement of evidence No. 16, the defendant association's withdrawal from the association after May 29, 2001, the above agreement between the defendants association obtained the approval of the establishment of the association with the name of 48 members on June 15, 2001, since the defendant association was concealed in the completion of the construction of the defendant and the shares of the defendant association were not paid in cash (Article 10 of the special agreement). However, the defendants' assertion that the above facts of the defendants' assertion are the sale of housing to be distributed to the members of the housing association. Thus, the above agreement between the defendants cannot be accepted.

(3) In addition, the defendants asserted that since the plaintiff 1 and 2 did not meet the requirements for membership qualification under Article 44(2) of the former Housing Construction Promotion Act and Article 42(3) of the Enforcement Decree thereof, the plaintiff 1 and 2 cannot claim the right to claim the registration of ownership transfer of the apartment of this case, which were decided to be sold to the members of the defendant association, but the plaintiffs 1 and 2 cannot claim the right to claim the registration of ownership transfer of the apartment of this case. However, even if the plaintiff 1 and 2 are not qualified as the members of the defendant association, the plaintiff 1 and 2 cannot claim the registration of ownership transfer of the apartment of this case

(4) In other words, the defendants asserted that the apartment house in this case belongs to the collective ownership of all the members of the defendant association, so if there are provisions in the articles of association or regulations of the association regarding the management and disposal of the apartment house in this case, it shall follow the resolution of the general meeting of the members, and if there is no provision in the articles of association or regulations, the disposal act shall be null and void, and since the apartment house in this case is not subject to the resolution of the general meeting of the members when it is sold in lots to the plaintiffs, the apartment house in this case against the plaintiffs is null and void. According to the evidence No. 18, the defendant association's agreement provides that the association's decision of each member of the housing in this case shall be determined by the lottery method as determined by the whole general meeting of the members of the association (Article 29 (1) of the union's regulations). As seen above, if the apartment house in this case was excluded from the objects of the lottery in this case for the plaintiffs, it is reasonable to view that the above apartment association's general meeting of members of the defendant association has not been established.

(5) Lastly, even if the plaintiffs were assigned the apartment house of this case in the name of the non-party 7, non-party 8, non-party 9, and non-party 10 whose membership was listed in the form of the plaintiffs, the defendants are prohibited from transferring the status to be supplied with the house under Article 44 of the former Housing Construction Promotion Act or from being supplied with or allowing to be supplied with the house constructed and supplied under this Act by deceit or other unlawful means. Paragraph (2) of Article 4 of the former Housing Construction Promotion Act provides that the Minister of Construction and Transportation or the project proprietor may invalidate the status that can apply for the supply of the house against the provisions of Paragraph (1) or cancel the housing supply contract which was already concluded with the person who transferred the deed or status in violation of the provision of Paragraph (1) or who was supplied with the deed or status or housing by fraudulent or other unlawful means. This is a mandatory provision prohibiting the act of violation and directly excludes the legal effect of the apartment house from the private law, and the act of receiving the sale or allotment by borrowing another person's name.

Therefore, in principle, the provisions of the same Act or the Enforcement Decree thereof concerning the qualifications of the association members of the housing association cannot be deemed to be a voluntary provision that can be excluded from the application of the above provisions by the parties' will. However, in this case, in that the defendant association first proposed to sell the apartment of this case to the plaintiffs for payment in kind, the plaintiffs cannot be deemed to have committed the plaintiffs' act of supplying or having to be supplied with a house constructed and supplied under this Act by deceit or other unlawful means. In addition, in light of the total site area of the above apartment and the size of the above land sold by the plaintiffs to the defendant association, if the defendant association failed to purchase the land from the plaintiffs pursuant to the sales contract of this case, it would be very difficult to construct the apartment as of now if the defendant association did not purchase the land from the plaintiffs, and even if the plaintiffs could have received the purchase price in cash under the sales contract of this case, the defendants assisted the defendant association to receive the purchase price in kind at the request of the defendant association, and the defendants's act of selling the apartment after June 20, 2003.

Therefore, the above assertion by the defendants is without merit.

3. Conclusion

Therefore, the defendants are obligated to implement each procedure for the registration of ownership transfer with respect to one half of each of the real estate listed in the separate sheet with respect to the plaintiffs' respective real estate on January 11, 2001. Thus, the defendant's primary claim against the defendants of this case is accepted (the previous lawsuit was withdrawn by the exchange change of the lawsuit made in the trial and the judgment of the court below was invalidated). It is so decided as per Disposition.

[Attachment List omitted]

Judges Cho Yong-ho (Presiding Judge)