Whether eligible residents, etc. can file a claim against a project operator for recovery of additional registration cancelled pursuant to Article 40 of the former Housing Act (negative)

Article 40(1), (3), and (4) of the former Housing Act (amended by Act No. 9366 of Jan. 30, 2009); Article 45(2) and (3) of the former Enforcement Decree of the Housing Act (amended by Act No. 21744 of Sep. 21, 2009)

Plaintiff 1 and seven others (Law Firm Han-ro, Attorneys Hong-soo et al., Counsel for the plaintiff-appellant)

Plaintiff 9 (Law Firm Han-ro, Attorneys Hong-soo et al., Counsel for the plaintiff-appellant)

Scattering East Forest Housing Association (Law Firm Democratic Law, Attorneys Yoon Jae-sik et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2010Na79079 decided March 21, 2012

The part against the plaintiffs in the judgment of the court below against the defendant is reversed. The judgment of the court of first instance on the claim for recovery registration of prohibited matters is revoked, and this part of the lawsuit is dismissed, and the remaining part of the case is remanded to the Seoul High Court. The defendant's appeal

The grounds of appeal are examined.

1. Regarding the plaintiffs' appeal

A. Regarding ground of appeal No. 1

The court below acknowledged that the plaintiffs' claim for registration of transfer of ownership of each apartment building based on each of the sales contracts of this case defects in the simultaneous performance resistance with the unpaid sale price, and ① the amount stated as the members' contributions to each of the sales contracts of this case as the sale price to be paid by the plaintiffs (the agency service fee and trust registration fee claimed by the defendant was excluded from the sale price). ② The plaintiffs recognized the validity of the sale price as well as the amount deposited by the defendant as the payment of the sale price to the defendant as well as the amount deposited to the defendant, and ③ calculated the unpaid sale price by the plaintiff in addition to the late payment of the sale price as calculated separately by the defendant, and received the simultaneous performance change within the scope of the defendant.

However, according to the documents on which the Defendant calculated the late payment charges (No. 27-1 through 8, No. 28) by the Defendant, the Defendant, unlike the original judgment, included the agency service charges and the registration fees for trust in the scope of the parcelling-out price, and without recognizing the validity of the funds deposited by the Plaintiffs to the Defendant as the sale price, calculated the late payment charges based on the different payment deadline from the written contract for each of the instant sales contracts or the Defendant’s application fees.

Therefore, the judgment of the court below is inconsistent with its reasoning, and there is an error of law by acknowledging facts without evidence or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, and thereby affecting the conclusion of the judgment.

B. As to the grounds of appeal Nos. 2 and 3

Before determining the grounds of appeal, we examine the legitimacy of the lawsuit on the claim for cancellation of registration ex officio.

In Article 40 (1) of the former Housing Act (amended by Act No. 9366 of Jan. 30, 2009; hereinafter the same shall apply), a project undertaker shall, with respect to the housing and site constructed by a housing construction project implemented after obtaining approval for the project plan under Article 16 (1), provide that the act of setting security rights, such as mortgage and provisional registration, on the relevant housing and site for sixty days after the date of application for approval for the announcement of invitation of occupants (in the case of a housing association, referring to the date of application for the approval for the project plan), the act of setting the right to lease on a deposit basis, superficies or provisional registration, the act of disposing of the relevant housing and site by means of sale or donation, etc., and the provisions of paragraph (3) provide that, with the exception of the cases of restricting the establishment of mortgage, etc. under paragraph (1), the project undertaker shall not make an application for the registration of ownership transfer, establishment of restricted real right, provisional registration and provisional disposition, etc., under the provisions of paragraph (2) of this Article 4).

As such, the additional registration or the cancellation thereof under Article 40 of the former Housing Act is made by the business entity’s sole application, and in relation to the restoration of the additional registration cancelled at the time of such provision, it is difficult to regard the prospective resident or the business entity as the person liable for registration or the person liable for registration under the registration procedure. However, in a case where any registration is entirely or partially cancelled, the lawsuit claiming cancellation of registration is filed against the person liable for registration in order to recover the cancelled registration, and the person liable for registration shall file a lawsuit against the person liable for registration, which is instituted to recover the cancelled registration. As seen above, claiming for the restoration of the additional registration cancelled against the business entity

Therefore, the instant lawsuit cannot be deemed unlawful for the Plaintiffs who concluded a sales contract with the Defendant to claim restitution of the additional registration cancelled against the Defendant as the business proprietor.

Nevertheless, the court below erred by misapprehending the legal principles as to the interest in a lawsuit, since the court below did not err by misunderstanding the legal principles on the interest in the lawsuit.

2. As to the defendant's appeal

Upon examining the reasoning of the judgment below in light of the records, it is reasonable that the court below's determination that the contract was effective as in the case of plaintiff 9 as in the case of other plaintiffs, and there is no error in the misapprehension of legal principles as to the qualification of members of the housing association, or in violation of logical and empirical rules.

3. Conclusion

Therefore, the part of the judgment of the court below against the plaintiffs against the defendant is reversed, and since the part concerning the claim for registration of recovery of prohibited matters is sufficient for this court to directly judge, this part of the judgment of the court of first instance as to the corresponding part shall be revoked, and this part of the lawsuit shall be dismissed, and this part of the lawsuit shall be remanded to the court below for a new trial and determination. The defendant's appeal shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)