[1] Whether the identity between the "new house or site" and the "old house or site" sold to the association members without going through the procedures such as the approval of the management and disposal plan and the public announcement of the sale of buildings in lots or the public announcement of transfer is maintained (negative)

[2] In a case where a title trustee entrusted real estate under title trust to a reconstruction association and a new building, etc. newly built by a reconstruction association under a reconstruction project without due process such as authorization of a management and disposition plan, announcement of sale disposal or transfer notification, etc., is sold to the title trustee through a sales contract, whether the title truster may claim for the transfer of ownership of a newly constructed building, etc. purchased from a reconstruction association on the ground that the initial title trust

[1] Where a reconstruction association has sold a new house or site to its members through the procedure of authorization of a management and disposal plan and the subsequent procedure of notification of a sale disposal plan under Articles 33 through 45 of the former Urban Redevelopment Act (repealed by Article 2 of the Addenda to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Act No. 6852 of December 30, 2002) which applies mutatis mutandis under Article 44-3 (5) of the former Housing Construction Promotion Act (amended by Act No. 6852 of December 30, 2002), or through the procedure of approval of a management and disposal plan under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents and Dwelling Conditions for Residents and the subsequent procedure of notification of a transfer, it can be deemed that the former (Gu) right to the new house or site is legally exchanged or modified as the right to new house or site regardless of the intention of the right holder and thus, it cannot be deemed that the new house or site has been acquired as a new house or site.

[2] In cases where a title truster and a title trustee disposes of real estate ownership registration to a third party with a new interest after the completion of a title trust agreement in the name of the title trustee pursuant to the title truster and the title trustee’s title trustee’s title trustee’s title trust agreement, the title trustee cannot assert the invalidity of the title trust agreement against the third party. In cases where the title trustee entrusted the title trust real estate to the title trustee and carried out a reconstruction project based thereon, the title trustee constitutes a new interested party under the title trust agreement between the title trustee and the title trustee. Thus, barring any special circumstance, the title truster is not affected solely on the ground that the title trust agreement on the title trust real estate concluded between the title trustee and the title trustee becomes invalid in relation to the title truster. Therefore, where the title trustee did not follow procedures such as the authorization of the management and disposition plan and the announcement or transfer of the sale disposition following it, the title trustee’s ownership of the newly constructed building and its site were sold to the title trustee through the title trust agreement with the title trustee, and the title trustee’s right to the newly constructed real estate cannot be seen from the title truster’s title trust agreement.

[1] Article 44-3 (5) of the former Housing Construction Promotion Act (amended by Act No. 6852 of Dec. 30, 2002; see current Article 55 (1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents), Article 34 of the former Urban Redevelopment Act (repealed by Act No. 6852 of Dec. 30, 2002; see current Article 48), Article 38 (3) (see current Article 54 (1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents), Article 38 (4) (see current Article 54 (2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents), Article 39 (1) (see current Article 54 (2) and Article 55 (1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents) / [2] Article 54 (3) of the former Housing Construction Promotion Act (amended by Act No. 6852 of Dec. 30, 30, 405) of the current Act

[2] Supreme Court Decision 2001Da47467 decided Aug. 19, 2003 (Gong2003Ha, 1862) Supreme Court Decision 2005Da3467, 34674 decided Nov. 10, 2005 (Gong2005Ha, 1961)

Plaintiff (Law Firm Rate, Attorneys Shin Sung-sung et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm L&A, Attorneys Kang Chang-joon et al., Counsel for the defendant-appellant)

Busan High Court Decision 2007Na6079 Decided December 13, 2007

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Where a reconstruction association has sold a new house or site to its members without following procedures such as the approval of the management and disposal plan and the announcement or transfer announcement of the sale order pursuant to Articles 44-3 (5) of the former Housing Construction Promotion Act (amended by Act No. 6852 of Dec. 30, 2002), the association members shall be deemed to have acquired a new house or site by forced exchange or alteration of the rights to new house or site regardless of the intention of the right holder, and thus they shall not be deemed to have acquired a new house or site because they cannot be deemed to have acquired a new house or site because they cannot be deemed to have acquired a new house or site by forcing exchange of ownership between new house or site under Articles 33 through 45 of the former Urban Redevelopment Act (amended by Act No. 6852 of Dec. 30, 2002).

In light of the above legal principles and the records, there is no evidence to acknowledge that ○○○ apartment reconstruction association (hereinafter “○○ apartment reconstruction association”) sold a building site or building to its members, including the Defendant through the procedures such as the approval of a management and disposal plan and the public notice or the public notice of transfer of the sale disposition following it. Thus, it cannot be deemed that the ownership of ○○○ apartment (Dong number 1 omitted) that the Defendant purchased through the sale contract with the non-party association after the title trust with the Plaintiff and completed the registration of transfer of ownership based on the trust with the non-party association, cannot be deemed to have been legally exchanged or modified as the ownership of ○○ apartment (Dong number 2 omitted).

Therefore, the identity of the instant lot apartment (number 2 omitted) and the ○○○ apartment (number 1 omitted) cannot be deemed to be erroneous in the misapprehension of legal principles as to the right to common refund or as to the ownership in reconstruction, as alleged in the ground of appeal by the lower court.

2. Where the title truster and the title trustee disposed of real estate ownership registration to a third party with a new interest after the completion of the title trust agreement between the title truster and the title trustee, such third party cannot be asserted on the ground that the title trustee becomes null and void of the title trust agreement (see Supreme Court Decision 2005Da34667, 34674, Nov. 10, 2005). Thus, where the title trustee entrusted the title trust real estate to the title truster and the title trustee proceeds a reconstruction project based on the title trust agreement, the title truster constitutes a new interested party under the title trust agreement (see Supreme Court Decision 2001Da47467, Aug. 19, 2003). Furthermore, the title truster’s right to the newly constructed real estate ownership agreement or the title trustee’s newly built real estate ownership agreement cannot be seen as null and void in the title trust agreement between the title truster and the title trustee, and the title trustee’s newly built real estate ownership agreement and the title trust agreement cannot be deemed null and void.

In light of the above legal principles and records, the court below acknowledged that the defendant completed the registration of ownership transfer for the ○○○ Apartment (Dongho Lake 1 omitted) which was initially trusted by the plaintiff from the non-party association in the name of the non-party association member of the non-party association and concluded the sales contract with the non-party association in the name of the non-party association, and the defendant additionally paid 50 million won loaned by the non-party association as the sale price and purchased the instant lot apartment (Dongho 2 omitted) from the non-party association. The instant lot apartment (Dongho 2 omitted) cannot be deemed as a simple conversion object of ○○○ apartment (Dongho 1 omitted) and its ownership was acquired based on the new legal cause of the sales contract concluded with the non-party association, and therefore, it cannot be deemed that the plaintiff is not liable to return the ownership of the lot apartment (Dongho 2 omitted) to the plaintiff as unjust enrichment and that the non-party association member of the non-party association was not obligated to perform the procedure of title change as to the status of the non-party association.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)