Plaintiff (Counterclaim Defendant) (Attorney Jeong-young et al., Counsel for defendant-appellant)

Defendant-Counterclaim (Attorney Park Yong-young, Counsel for the plaintiff-appellant)

November 18, 2015

1. On October 26, 2010, the Plaintiff (Counterclaim Defendant) applied the application procedure for the resale agreement to change the ownership of the purchaser, which was based on the sale contract with the Korea Land and Housing Corporation on the housing site for the use of the designated purpose.

2. The plaintiff (Counterclaim defendant)'s main claim, the defendant (Counterclaim plaintiff)'s main counterclaim, and the remaining preliminary counterclaim claims are dismissed, respectively.

3. The costs of litigation shall be borne by the Plaintiff (Counterclaim Defendant) and the 1/5, respectively, by the Defendant (Counterclaim Plaintiff).

1. Main elements;

It is confirmed that the purchase and sale contract of the resettlemented Housing Site as of October 26, 2010 on real estate entered in the separate sheet concluded between the Plaintiff (Counterclaim Defendant, hereinafter “Plaintiff”) and the Defendant (Counterclaim Plaintiff, hereinafter “Defendant”) is null and void.

2. Counterclaim;

A. Main Claim: The Plaintiff shall implement the procedure to change the purchaser’s name on March 4, 2015 between the Defendant and the Korea Land and Housing Corporation as to the land specified in paragraph (1) of the order to the Defendant as the Defendant.

B. Preliminary Claim 1: On the basis of the consent of the Korea Land and Housing Corporation on the order of Paragraph 1 and the above consent procedure, the Plaintiff shall implement the procedure to change the purchaser’s name on March 4, 2015 with the Defendant and the Korea Land and Housing Corporation as to the land specified in Paragraph 1 of the Disposition.

C. Second preliminary claim: The plaintiff shall pay to the defendant 216,00,000 won with 20% interest per annum from the day following the delivery of a copy of the counterclaim of this case to the day of complete payment.

A principal lawsuit and a counterclaim shall be deemed simultaneously.

1. Basic facts

A. On October 26, 2010, the Defendant entered into a sales contract with the Plaintiff on the purchase right to purchase KRW 72 million from the Korea Land and Housing Corporation (hereinafter “instant purchase right”) that the Plaintiff would receive from the said business implementer, as each real estate listed in the attached list owned by the Plaintiff was incorporated into the development project for the Busan Sea Free Economic Zone (hereinafter “instant development project”), and paid KRW 50 million to the Plaintiff as the remainder of November 1, 2010, with the purchase right to purchase KRW 72 million (hereinafter “instant purchase right”).

B. On September 6, 2013, the Plaintiff was selected as eligible for the relocation measures of the instant development project. On March 4, 2015, the Plaintiff entered into a sales contract with the Korea Land and Housing Corporation for the supply of KRW 207,726,00 of Gangseo-gu Busan Metropolitan Government (location omitted) for KRW 247 square meters (hereinafter “the instant real estate”). On the same day, the Plaintiff paid KRW 20,772,600 for the down payment on the same day.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3-2, Eul evidence 1, the purport of whole pleadings

2. The parties' assertion and judgment

A. The plaintiff's assertion

The instant sales contract was concluded between the Plaintiff and the Plaintiff before the date of resale and the time of resale, and ② concluded without the consent of the Korea Land and Housing Corporation, which is the project implementer, in violation of Article 19-2(1) of the Housing Site Development Promotion Act, and thus, is null and void in accordance with Article 19-2(2) of

B. Defendant’s assertion

1) The primary counterclaim

Since the instant sales contract is effective, and the consent of the Korea Land and Housing Corporation, which is the project implementer, is obtained, the Plaintiff is obligated to implement the procedure to change the name of the purchaser on March 4, 2015, which was entered into between the Defendant and the Korea Land and Housing Corporation with respect to the instant real estate, to the Defendant. Even if the requirements for consent are not satisfied, it is invalid as it goes beyond the scope of delegation by the mother law to obtain the consent of the implementor on the resale of the housing site in

2) First preliminary counterclaims

Even without the consent of the Korea Land and Housing Corporation as to the instant sales contract, since the instant sales contract is in a state of flexible invalidation, the Plaintiff is obligated to implement the procedure of applying for resale consent so that it can obtain the consent of resale from the Korea Land and Housing Corporation. Upon the consent of the Korea Land and Housing Corporation on the said procedure, the Plaintiff is obligated to implement the procedure to change the name of purchaser on March 4, 2015, which was concluded between the Defendant and the Korea Land and Housing Corporation

3) 2 Preliminary Claim

The instant sales contract provides that the Plaintiff shall compensate for the amount equivalent to three times the purchase price in the event of termination or non-performance in the execution of the contract. However, the Plaintiff is obligated to pay the Defendant penalty KRW 216 million for breach of contract and damages for delay, since the Plaintiff did not implement the procedure for change in the ownership of the purchase price despite having received KRW 72 million from the Defendant, and expressed clearly its intention of refusal of performance.

C. Relevant statutes

(1) No person supplied with a housing site created pursuant to this Act shall resell (including change of the name, sale or other acts accompanying change of rights, but excluding inheritance; hereinafter the same shall apply) the housing site as it is without using it for the purpose of supply thereof, unless he/she registers transfer of the ownership: Provided, That the main sentence may not apply to cases prescribed by Presidential Decree, such as housing construction sites supplied for relocation measures.

D. Determination

1) Determination as to whether the sales contract of this case was null and void since it was concluded before the right to sell the instant case was created and before the time of resale

The object of the instant sales contract is the right to purchase a re-sale of a re-sale site to be supplied by the Korea Land and Housing Corporation, which is the project implementer, as the real estate listed in the attached list owned by the Plaintiff was incorporated into the instant development project. Since the Plaintiff became final and conclusive as the object of the instant right to purchase the real estate supplied by the Plaintiff at the time of the said sales contract, even if there was no specific right to purchase the real estate at the time of the conclusion of the instant sales contract, it is possible to sell the real estate in the future, and it shall not be deemed null and void just for the aforementioned reasons. Furthermore, Article 19-2(1) of the Housing Site Development Promotion Act prohibits the act of the “person who is supplied with the housing site” from resale in the “before the registration of ownership transfer,” but according to the proviso of the same paragraph and Article 13-3 subparag. 1 of the Enforcement Decree of the Housing Site Development Promotion Act, the said real estate is not subject to the provisions on the restriction on resale, and as long as the resale is permitted, it cannot be interpreted only after resale.

Therefore, this part of the plaintiff's assertion is without merit.

2) Determination as to whether the instant sales contract was null and void as it was concluded without the consent of the Korea Land and Housing Corporation

A) Whether the main text of Article 13-3 of Enforcement Decree of the Housing Site Development Promotion Act is invalid for the phrase “cases where the consent of the implementer is obtained”

The main text of Article 19-2(1) of the Housing Site Development Promotion Act prohibits, in principle, the resale prior to the registration of transfer of ownership of a housing site created under the said Act, and the proviso exceptionally permits resale. As long as the proviso delegates the requirements, etc. for exceptional cases under the said proviso to the Presidential Decree, it is difficult to view that Article 13-3 of Enforcement Decree of the Housing Site Development Promotion Act requires the consent of the implementer with regard to the requirements for exceptional cases, even if it exceeds the delegation scope

B) Whether the agreement of the project operator is necessary for the instant sales contract

The main text of Article 19-2(1) of the Housing Site Development Promotion Act prohibits, in principle, the resale prior to the registration of transfer of ownership on a housing site developed under the above Act, and exceptionally permits the resale in the proviso of the same Article and Article 13-3 of the Enforcement Decree of the same Act to obtain consent from the implementer is because it is necessary to restrict the acquisition of land for speculative purposes, on the premise of a policy consideration that the original purpose of supplying the housing site for migrants is to minimize the side effects of the restriction on fundamental rights prescribed by the Constitution by providing a new place of residence to the persons who lose their place of residence in the national policy, and that the housing site should be supplied to the actual users of the relevant land, and accordingly, it is necessary for the implementer to participate in the change of the name or verify and examine the requirements for sale. If the application of the restriction on resale is excluded and no restriction is possible, the legislative purpose of the restriction on resale of the housing site becomes inconsistent with the legislative purpose of the Housing Site Development Promotion Act to prevent the resale of the housing site to avoid the application of the restriction on resale.

C) Whether the consent of the Korea Land and Housing Corporation was obtained regarding the instant sales contract

In full view of the purport of the oral argument as a result of the fact-finding conducted on October 8, 2015 on the President of the Korea Land and Housing Corporation of this Court, the ○○ Dong Resident Support Committee consisting of residents in the instant development project zone, around May 20, 2008, around October 7, 2008, and around November 3, 2008, the Korea Land and Housing Corporation (at the time, the Korea Land and Housing Corporation was merged with the Korea Housing Corporation on October 1, 2009) sent the documents referred to in the items of “the requirements of residents in the instant development project” to the Korea Land and Housing Corporation three times more than three times, and the Korea Land and Housing Corporation demanded the Korea Land and Housing Corporation to approve sale and purchase of the right” as required by landowners, and the Korea Land and Housing Corporation may inform the Korea Land and Housing Corporation of the title “the first ○ Dong Resident Support Committee” under Article 20-13 of the Enforcement Decree of the Housing Site Development Promotion Act as “the first 3rd Housing Site to be supplied.”

The contents of each of the above contents are confirmed by the contents of Article 19-2 of the Housing Site Development Promotion Act and Article 13-3 of the Enforcement Decree of the same Act, and it does not state the consent of the Korea Land and Housing Corporation on the resale of each of the above contents. In addition, it is difficult to find that the above contents alone are valid with the consent of the Korea Land and Housing Corporation as to the sales contract in this case, in light of the fact that the original purpose of supplying the housing site is to minimize adverse effects of the fundamental rights of the Constitution by providing a new residence to those who lose their place of residence as a national policy, and thus, it is necessary to limit the acquisition of land for speculative purposes by providing a new place of residence to those who lose their place of residence. Accordingly, it is necessary to take into account the fact that the implementer is involved in the change of name or confirm and examine the requirements for the sale of land for the purpose of speculation. Thus, considering that the consent of the implementer is to be permitted only by specific and individual consent, it is difficult to acknowledge that there exists no other evidence to acknowledge otherwise.

D) The validity of the instant sales contract, and whether the Defendant can compel the Plaintiff to implement the procedure of applying for the resale agreement to change the name of the buyer pursuant to the instant sales contract

According to Article 13-3 subparag. 1 of the Enforcement Decree of the Housing Site Development Promotion Act, a contract for the resale of a re-sale site prior to the registration of ownership transfer shall be valid with the consent of the implementer. In light of the above evidence and the statement of subparagraph 2 as well as the purport of the entire arguments and arguments as to the Korea Land and Housing Corporation in this court, considering the following circumstances: (i) the above re-sale contract shall become effective only with the consent of the implementer, and shall not take effect until the consent is obtained; (ii) the effect of real rights as well as the in personam effect shall not take effect until the consent is obtained; (iii) however, if the pre-sale contract is a contract with the contents that excludes or excludes the consent from the beginning; (iv) there is no possibility that the validity of the pre-sale contract shall take effect as a completed juristic act under law until the consent is obtained; (iv) the re-sale contract becomes invalid retroactively; and (v) if the consent is not obtained or it becomes impossible to obtain any other consent, it shall be deemed null and void as it becomes void (see, Supreme Court en banc Decision 2006Nu. 196.

Therefore, in a case where a resale contract is concluded on the housing site for the said migrants (this case includes the case where the migrantss have become final and conclusive after the conclusion of the sale contract for the ownership of the real estate), the parties to the contract have the duty to cooperate with each other so that the contract can be completed as effective. Thus, both parties to the contract have the duty to jointly apply for the consent of the implementor, and the other party who does not cooperate in the procedure for the application for consent in violation of such duty has the interest to seek as a lawsuit for the performance of the obligation to cooperate (see Supreme Court en banc Decision 90Da12243, Dec. 24, 191, etc.). Accordingly, the plaintiff has the obligation to implement the procedure for applying for the consent to the resale with the Korea Land and Housing Corporation for the change in the name of the buyer in accordance with the sale contract for the real estate in this case.

① Interpretation of a contract premised on the consent of an implementer is also null and void, and it is very unreasonable in light of the reality of transaction. Real estate transactions, such as sale, are established by the agreement between a seller and a buyer in accordance with the market principle formed by transaction at the same point as supply and demand, and the agreement between a seller and a buyer can be made after such agreement is reached. It is only impossible to compel the other party to whom the agreement will be reached even before such agreement is reached to engage in the sale.

In full view of the description of the evidence No. 2 and the purport of each fact-finding by the Korean Land and Housing Corporation, the consent to resell the real estate of this case and the housing site of this court is concluded between transferor, transferee, and Korea Land and Housing Corporation after the relocation of the housing site becomes final and conclusive. In applying for change of title, the Korea Land and Housing Corporation requires an approval seal contract pursuant to Article 4 of the Act on Special Measures for the Registration of Real Estate. According to Articles 4 and 3(1) of the above Act, the above approval seal application shall state "matters concerning payment, such as the party, objective real estate, contract date, price, and payment date, or matters concerning settlement of the difference, etc., or matters concerning settlement of the difference." Thus, prior to the application for the approval, it can be seen that the parties have already agreed to the transaction details, price, etc., which are the object of transaction, etc.

② If the resale contract prior to the consent of an implementer is considered to be null and void, the agreement between the parties to the contract is deemed to be merely a prior consultation at the preparation stage for the conclusion of the contract and to newly conclude the resale contract after the consent. However, since the agreement between the parties to the relevant housing site and the proceeds thereof is not different from the actual contents of the resale contract, the conclusion of the resale contract prior to the consent can be acknowledged, but if the agreement can achieve the objective of preventing speculative transactions by making the contract not effective until the consent is obtained, then the demand for a new contract after the consent will be made more complicatedly and more complicated and more complicated to the parties to the transaction, and even if one party refuses to conclude the contract after the consent, it cannot be disregarded that the failure to obtain the original agreement would undermine the adverse effect of the transaction order and the trust relationship.

In full view of the purport of the entire argument in the statement No. 4-1 and No. 2 of the evidence No. 4-2, the actual transaction amount of the pertinent real estate as of July 2015 is assessed to be more than KRW 300 million, and it can be acknowledged that there is a purchaser who has received ownership transfer registration pursuant to the purchase and sale contract for the land within the instant development project, which was concluded before the purchase and sale contract became final and conclusive, as the instant sales contract, as to the land within the instant development project zone. Thus, it is unreasonable to view that the seller can receive ownership transfer registration even if the parties to the contract who entered into the purchase and sale contract for a similar purchase and sale contract cooperate in the procedure for obtaining consent to resale pursuant to the above sales contract, on the ground of market price gains, etc., the above sales contract becomes null and void, and there is no way to receive ownership transfer registration without cooperation in the above procedure. Such interpretation is unreasonable contrary to the purport of the relevant provision allowing resale, and such problem is clearly more likely than the transferee who entered into the sale contract after meeting the requirements of the name change and conclusion.

③ Article 2 of the sales contract of this case provides, “The seller and the buyer shall actively cooperate in all procedures in the exercise of their rights, and the seller shall deliver all necessary documents to the buyer and the buyer by actively cooperating in the registration procedure and deliver the real estate to the buyer or the buyer.” Thus, at the time of conclusion of the sales contract of this case, the Plaintiff and the Defendant planned to cooperate in the procedure of applying for the consent to resale of the Korea Land and Housing Corporation as to

④ The main text of Article 19-2 (1) of the Housing Site Development Promotion Act prohibits, in principle, the resale of the housing site created under the above Act prior to the registration of transfer of ownership, and stipulates exceptions to the above principle in the proviso of the said Act and Article 13-3 (1) of the Enforcement Decree of the said Act in the case of the housing site for migrants identical to the instant real estate, by providing the land, etc. necessary for the implementation of public projects, provides substitute housing sites as part of living compensation to the migrants who lose their base of livelihood, and generally require considerable time to develop the substitute housing site, thereby enabling them to resell the housing site to be supplied even before the registration of transfer of ownership. As seen earlier, the consent to the resale of the housing site for the Korea Land and Housing Corporation is deemed to have been concluded by the transferor and the transferee of the housing site to have become final and conclusive, so it is difficult to interpret the operator’s right to resell the housing site for a considerable period of time to permit the resale of the housing site for a considerable period of time.

As seen earlier, the ○○○ Dong Residents’ Countermeasure Committee may recognize the fact that the landowner’s request was made to the Korea Land and Housing Corporation for the recognition of sale and purchase of a sale right, and around October 7, 2008, around November 3, 2008. The instant sales contract was concluded on March 4, 2015, which was four years and four months before the date when the Plaintiff entered into a sales contract with the Korea Land and Housing Corporation on the instant real estate, around October 26, 2010. However, it appears that there was a need for the Plaintiff to sell the instant sales right to the said land in order to provide the basis of living at the time when the said housing site was supplied.

3) Sub-determination

As long as the sales contract of this case is in a flexible invalidation state, the obligation to implement the procedures for applying for the consent to the resale for the change in the name of the buyer is recognized. Thus, the plaintiff's main claim and the defendant's main counterclaim claim are without merit, and the part seeking implementation of the above procedures for application among the defendant's first preliminary counterclaim claim is reasonable. The part seeking implementation of the procedure for change in name under the condition that consent of the Korea Land and Housing Corporation is obtained from the defendant's first preliminary counterclaim cannot be a claim for the transfer of rights since it has no effect on the sales contract of this case before obtaining consent (as long as part of the defendant's first preliminary counterclaim claim is accepted, the defendant's second preliminary counterclaim claim is not judged separately).

3. Conclusion

Since the plaintiff's main claim and the defendant's main counterclaim are without merit, each of them is dismissed, and since the part of the defendant's first preliminary counterclaim seeking the implementation of the application procedure for consent to resell for changing the ownership of the buyer, it is justified, and the remainder of the first preliminary counterclaim is dismissed, and it is so decided as per Disposition.

[Attachment]

Judges Kim Chang-sik (Presiding Judge) and Park Jong-jin