In case where the buyer pays the sale price in advance in a lump sum, whether the Housing Project Mutual Aid Association which has guaranteed the sale of housing for the housing construction businessman under the Enforcement Decree of the Housing Construction Promotion Act is liable to guarantee the amount corresponding to the down payment and the intermediate payment out of the sale price paid in lump sum (affirmative)

In principle, the purpose of the Housing Business Mutual Aid Association is to protect bona fide buyers who concluded a sales contract in accordance with the procedures and methods prescribed by the Housing Construction Promotion Act and the Enforcement Decree of the Housing Construction Promotion Act. Therefore, the Housing Business Mutual Aid Association, which has made a housing sales guarantee, bears the responsibility to refund the sales price or guarantee the sales price of a house on the premise that the buyers who purchase a house from a housing construction business operator pay the down payment and the intermediate payment, barring any special circumstances. However, in a standardized sales contract used by a housing construction business operator for the conclusion of a sales contract in advance, there is a provision that discounts the intermediate interest based on the number of days of advance payment in advance, and in a case where the buyer makes an advance payment with trust in the conclusion of a sales contract with the housing construction business operator and makes an advance payment in lump sum, even if Article 18 of the former Rules on Housing Supply (wholly amended by Ordinance of the Ministry of Construction and Transportation No. 6, Feb. 11, 1995), the Housing Business Mutual Aid Association cannot exempt the housing business operator from its responsibility to pay the down payment.

Article 428 of the Civil Act, Article 32 of the Housing Construction Promotion Act, Article 43-5 (1) 4 of the Enforcement Decree of the Housing Construction Promotion Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Plaintiff 1 and one other (Attorney Yang Jae-soo, Counsel for the plaintiff-appellant)

Housing Business Mutual Aid Association (Attorney Yang Chang-hoon, Counsel for defendant)

Seoul High Court Decision 97Na47561 delivered on May 6, 1998

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

The grounds of appeal are examined.

1. On the third ground for appeal

Upon examining the reasoning of the judgment below in light of the records, the court below is justified in rejecting the evidence presented by the defendant's argument that the apartment sale contract of this case between the plaintiffs and the non-party company constitutes a false declaration of agreement, and there is no violation of the rules of evidence, and there is no violation of the rules of evidence, nor errors in the misapprehension of the rules of experience, nor in the misapprehension of the legal principles as to false declaration of agreement, nor in the incomplete deliberation. The grounds of appeal as to this point of appeal and the supplementary appellate brief, the supplementary appellate brief's grounds of appeal are not acceptable.

2. On the first and second grounds for appeal

The purpose of a housing project mutual aid association is, in principle, to protect the buyers in good faith who have concluded contracts for sale in accordance with the procedures and methods prescribed in the Housing Construction Promotion Act and the Enforcement Decree of the Housing Construction Promotion Act, and to protect the buyers in good faith who have paid the sale price. Therefore, it is reasonable to deem that the housing project mutual aid association, barring special circumstances, bears the responsibility of refunding the sale price or guaranteeing the sale price of a house under the premise that the buyers who have purchased the house from the housing construction business operator pay the down payment and the intermediate payment (see Supreme Court Decision 97Da5406 delivered on March 23, 199). However, since a standardized sale contract form used by the housing construction business operator for the conclusion of the contract for sale in advance pays the sale price in advance, there is a provision on discounting the intermediate payment due to the number of advance payment days and thus, it cannot be deemed that the provisions of Article 18 of the former Housing Construction Promotion Act (amended by the Enforcement Decree of the Housing Construction Promotion Act No. 15, Feb. 11, 1995) are not only the provisions of the housing sale price payment.

According to the reasoning of the judgment below and the records, the non-party company obtained approval of the project plan for new construction of Jinjin apartment, and made a public announcement of invitation of residents in accordance with the procedure and method prescribed in the Rules, and entered into a contract for sale of apartment units with the plaintiffs on October 24, 1994 as stated in the judgment of the court below as to the second generation of apartment units in this case. Where the non-party company pays intermediate payments and balance to the non-party company in advance, the non-party company did not enter the contract for sale in advance in the standardized form used by the non-party company (Article 1.5% of the certificate No. 1 and 2) in the order of 11.5% of the annual discount rate (Article 3), and the non-party company and the plaintiffs did not enter the contract for sale in advance to the non-party company as the price for sale in lots in the order of 6th sale in lots, and the defendant could not find out the contract for sale in lots and the contract for sale in lots in this case.

The decision of the court below to the same purport is just, and there are no errors in the misapprehension of legal principles as to the contents of the house sale guarantee under Article 43-5 of the Enforcement Decree of the Housing Construction Promotion Act, the interpretation of the house sale guarantee, which is a disposal document, or the misapprehension of legal principles as to the waiver of the term interest and the interpretation of the expression of intent. The Supreme Court Decision 94Da1142 delivered on April 29, 1994 cited in the ground of appeal is not appropriate to be invoked in this case. The grounds of appeal as to this point and the supplemental appellate brief are not acceptable.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the defendant who is the appellant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Jong-ho (Presiding Justice)