In case where a reconstruction association delegates the right to sell an apartment unit for a general unit sale to the construction association in accordance with the so-called share ownership agreement when entering into a contract for reconstruction project with a construction business operator who is registered as a housing construction business operator, whether the sales contract concluded with a third party who is a non-member of the general apartment unit for a general unit sale of a unit of the

According to Article 44 of the Housing Construction Promotion Act, where a housing association including a reconstruction association constructs its members (i.e., a partner), it shall implement a project jointly with a registered housing construction business operator and a registered housing business operator in this case, and the reconstruction association implements a reconstruction project after obtaining approval of the housing construction project plan as a joint project operator and a joint project operator. In the construction contract for the implementation of a reconstruction project, the reconstruction association implemented a reconstruction project with the approval of the housing construction project plan as a joint project operator and the joint project operator. Under the construction contract for the implementation of a reconstruction project, the reconstruction association's members are included in a kind of business partnership agreement that makes a joint project by investing their own land in construction capacity, labor, etc., and implements a reconstruction project. Thus, it is reasonable to view that the reconstruction association's members in the above contract for the construction project includes a kind of business partnership agreement that makes a joint project with the association members and the general third parties until the completion of the sale in lots after completing the reconstruction apartment, and it constitutes an act of selling in lots with the general third party and the company.

[1] Article 44 of the Housing Construction Promotion Act, Articles 703 and 709 of the Civil Act

A (Law Firm Sejong, Attorneys Lee Yong-soo, Counsel for the plaintiff-appellant)

Bitrebuilding Housing Association

1. It is confirmed that the Plaintiff is a purchaser of an apartment building listed in the attached list.

2. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Basic facts

A. On May 31, 1996, the Defendant BY reconstruction housing association (hereinafter referred to as the “Defendant reconstruction association”) was established to reconstruct B-building on the land other than Guro-gu Seoul Metropolitan Government and obtained authorization for establishment on May 31, 1996 with 61 members of the association. On October 10, 1998, it entered into a construction contract for the reconstruction construction project with the owner to remove the existing B-type housing as the contractor and newly construct the apartment (125 households) (hereinafter referred to as the “contract for the instant construction project”).

B. Upon entering into the contract for the construction project of this case, the defendant reconstruction association and the sub-permanent housing shall preferentially allocate apartment units 1,602.417 (63 households) and 264.405 (63 households) which are the shares of the association to the association members in relation to the sale of newly constructed apartment units, but the 51 households of the association members shall supply apartment units of 25.067 (25.067) and to the 12 households of the association members shall supply apartment units of 27 square meters in the selling area to the 12 households of the association members, and the association members shall pay the 39 million won additional charges to the sub-permanent housing at the time of occupancy except the shares of the association, and the 1,954.100 square meters (62 households) and parking lots of 325.415 (62 households) and the 325.415 square meters in the share of the project

(c) The defendant reconstruction association obtained the approval of the project plan for housing construction from the competent authorities as the project undertakers and sub-contractors.

D. On October 25, 200, Nonparty D, representing the Plaintiff, entered into a sales contract with the non-party D to sell an apartment in the attached list (hereinafter referred to as “the apartment in this case”) as part of the trial shares of the apartment to be newly constructed for reconstruction between the sub-building and the sub-building (hereinafter referred to as “sub-sale contract in this case”) from the sub-permanent housing in order to purchase the apartment in the same amount of KRW 120 million (hereinafter referred to as the “sub-sale contract in this case”). On the same day, he paid the above amount of KRW 150 million to the sub-permanent housing in cash and paid the remaining amount of KRW 15 million to the third party in lieu of the payment for the sale price (the sale price in the contract was discounted as KRW 160 million or KRW 260 million, or in lump sum payment).

(e)The apartment units to be newly built due to the instant reconstruction have not yet undergone the completion inspection, but are almost completed, and the defendant reconstruction association sold the instant apartment units to E on April 2001.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1, 2, and 4, witness F's testimony, and whole purport of oral argument

2. Issues of the instant case

A. The plaintiff asserts that the contract of the contract of the contract of the construction of this case is a so-called share contract, and the defendant reconstruction association delegated the right to sell the apartment of this case, which is the general unit sale household, to the apartment of this case, and did not raise any objection to the sale of the apartment of this case. As such, the contract of this case was effective to the defendant reconstruction association, the defendant reconstruction association delegated the right to sell the apartment of this case to the defendant reconstruction association, but the defendant reconstruction association delegated the right to sell the apartment to the non-permanent unit to the general unit sale, but it delegated the right to sell the apartment to the non-permanent unit jointly with the defendant reconstruction association, not to the right to sell the apartment unit independently, and the contract of this case was concluded with the plaintiff in its own name against this, the contract of this case

In this regard, the plaintiff asserts that the defendant reconstruction association cannot deny the validity of the sales contract of this case in accordance with the legal principles of expression agency, since it had no choice but to believe that the apartment house as the plaintiff had the right to sell the apartment of this case.

B. If so, the issue of this case is whether the sales contract of this case, which was concluded by the So-young Housing as the seller in the sole name of the seller, also affects the defendant reconstruction association. In other words, whether the defendant reconstruction association should be liable for the plaintiff to fulfill its obligations under the sales contract of this case to allow the plaintiff to be the buyer of the apartment of this case and the plaintiff to be the buyer.

3. Determination

A. The relationship between the defendant reconstruction association and the sub-permanent housing

According to Article 44 of the Housing Construction Promotion Act, when a housing association including a reconstruction association, constructs its members (i.e., members of a housing association), the housing association and the registered business entity shall be deemed joint project undertakers. As seen earlier, the defendant reconstruction association implemented the reconstruction project of this case with the approval of the housing construction project plan as a housing construction business entity and a joint project proprietor. In the contract for construction for implementing a reconstruction project, the contractor, the contractor, sold the remaining households after the completion of the reconstruction project to the reconstruction association to the reconstruction association members, and appropriate them for the construction cost. In light of the fact that the contract for the construction project of this case, it is reasonable to view that the members of the defendant reconstruction association included a kind of business agreement with the housing association to make an investment in the land owned by them and conduct a joint project by investing the construction capacity, labor capacity, etc., and therefore, the housing construction project of this case constitutes a kind of joint project agreement with the third party and the members of the housing association to execute the reconstruction project of this case and the third party.

B. Effect of the instant sales contract

(1) Whether it constitutes an act of acting as an association

As to whether the contract for the sale of this case can be seen as the act of the representative of the association or the agent of the association for the association formed by the defendant reconstruction association and the subcontractor's house, the fact that the defendant reconstruction association entrusted the right of the association to sell the apartment house for the construction project to the subcontractor's house, and that the apartment house of this case which the plaintiff purchased from the subcontractor's house constitutes the general sale household belonging to the shares of the construction project. According to the Gap's evidence No. 1, it can be acknowledged that the name of the subcontractor house and the defendant reconstruction association were printed together on the cover of the contract for the sale contract of this case which was concluded under the name of the subcontractor's sole house according to the contract for the sale contract of this case which was concluded under the name of the plaintiff's name. Thus, even if the seller's name was signed and sealed by the plaintiff's own name in the form of the above sale contract of the plaintiff, it is reasonable to view that the sale contract between the plaintiff and the Jung-young house constitutes the association or association's representative, and therefore, the defendant reconstruction association and the defendant's joint obligation of this case is liable.

(2) Restriction of power of representation (Agreement on Joint Representation)

However, comprehensively taking account of the whole purport of the pleadings in Eul evidence Nos. 5-1, 2, 6-1, 2, and 8 of Eul evidence Nos. 5-2 and Eul evidence Nos. 6-1, 2, and 8, in case of the sale in lots to non-party G, the non-party 101 and 609, which were the general unit unit unit units prior to the conclusion of the sale contract of this case, the sales contract was entered into between the So-young Housing and the defendant redevelopment association as the joint unit. The So-young Housing and the defendant redevelopment association did not know that the non-party 5 had already sold the apartment of this case from the So-young Housing to the plaintiff. In light of such circumstances, it is reasonable to view that the non-party 5 and the non-party 1 were the joint unit unit unit ownership as the joint unit ownership of the house of this case, and that the non-party 5 and the non-party 1 were the joint unit ownership of the house of this case.

Therefore, so long as the So-young Housing concluded the instant sales contract with the Plaintiff on its own name, it constitutes an act of unauthorized Representation beyond authority as a juristic act violating joint representation agreement.

(3) Whether a expressive representation is established

As to this, the plaintiff argued that the effect of the sales contract of this case extends to the defendant reconstruction association in accordance with the legal principles of expression agency in excess of authority as to whether the effect of the sales contract of this case extends to the defendant reconstruction association under the above legal principles. Thus, the above evidence adopted and the whole purport of pleading are as follows. In other words, the sales contract of this case was concluded at the office of sale of the Socyoung Housing, and the name of the Socyoung Housing and the defendant reconstruction association were printed on the cover of the sales contract of this case (Evidence No. 1). The form of the sales contract of this case and the contract provision of this case are the same as that of the sales contract of this case used by the defendant reconstruction association (Evidence No. 3). Under the above sales contract of this case, the purchaser of this case was not entitled to enter into the sales contract of this case as a "H apartment supply contract", and there was no legitimate authority to conclude the sales contract of this case with the plaintiff reconstruction association of this case as an employee of the plaintiff reconstruction association of this case.

C. Sub-committee

Therefore, the plaintiff can claim against the defendant reconstruction association that he himself is the buyer of the apartment of this case. As long as the defendant reconstruction association is disputing the validity of the contract of this case, the plaintiff is recognized as having a benefit to seek confirmation of the buyer's appointment of the apartment of this case after the completion of the future apartment of this case and after the completion of the contract of this case.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

Judges Hong-sung (Presiding Judge) Sheon Sheet