2016Da268251 Change of the title of sale right

A

Law Firm Yuk, Counsel for the plaintiff-appellant

[Defendant-Appellee] Defendant 1, Defendant 1, Defendant 1, Defendant 1, and Defendant 1, Defendant 1, Defendant 1, Defendant 1, and Defendant 1

the deceased B’s taking over of the action

1. C.

2. D;

3. E.

4. F;

[Defendant-Appellant] Plaintiff 1

Attorney Lee Sung-mun

Busan High Court Decision 2016Na52890 Decided November 9, 2016

May 10, 2019

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. According to Articles 19-2 and 31-2 of the former Housing Site Development Promotion Act (amended by Act No. 10303, May 17, 2010; hereinafter referred to as the “Housing Site Development Promotion Act”), a person supplied with a housing site created pursuant to the Housing Site Development Promotion Act may not resell the housing site as it is without using the housing site for the purpose of its use until the time the transfer of ownership is registered: Provided, That this restriction may not apply to cases prescribed by the Presidential Decree, and juristic acts shall be null and void and subject to criminal punishment if the housing site is resold in violation of such restriction. Meanwhile, according to Article 13-3 of the former Enforcement Decree of the Housing Site Development Promotion Act (amended by Presidential Decree No. 23113, Aug. 30, 201) (hereinafter referred to as the “Enforcement Decree of the Housing Site Development Promotion Act”), where the purchaser acquired the housing site from the implementer under subparagraphs 1 through 9, and the ownership of the housing site to be supplied by the purchaser under the Housing Site Development Promotion Act or the trust Act for the first sale of the housing site.

In full view of the legislative purport of the Housing Site Development Promotion Act, which aims to contribute to the stabilization of national housing and the improvement of welfare by prescribing special cases concerning the acquisition, development, supply, and management of housing sites necessary for housing construction in order to solve the housing shortage in the urban area, the provisions of this Act and the Enforcement Decree of this case, and the legislative purport of the Housing Site Development Promotion Act shall be prohibited in principle by the Housing Site Development Promotion Act until the registration of ownership transfer. However, in light of the circumstances of being supplied with the housing site, if it is necessary to give an opportunity to sell the ownership of the housing site before the registration of ownership transfer or if there is no concern about speculative transactions in light of the purpose of the housing site concerned, the act of resale should be exceptionally permitted and the consent of the operator should be required. The purport of the provision that requires the consent of the operator is necessary to restrain an application for the supply of the housing site for the purpose of acquiring the housing site so that the housing site can be supplied to the actual users of the housing site for the purpose of use thereof. Accordingly, the act of resale of the housing site directly involved in the operator and thereby

Therefore, the “agreement of a project implementer” prescribed as a requirement for special exception to the restriction on resale is premised on the fact that a housing site supply contract was concluded with respect to a housing site developed pursuant to the Housing Site Development Promotion Act. Thus, even if a contract for the sale and purchase of a housing site was concluded with the intent to resell the housing site to be supplied in the future before the conclusion of the contract for the sale and purchase of the housing site, it is impossible for the project implementer to consent to the sale and purchase contract for the housing site so that it is null and void and it is reasonable to interpret that the seller is not obliged to cooperate with the procedures of the “project implementer’s consent regarding the housing site to be supplied in the future” (see, e.g., Supreme Court Decision 2016Da229393, Dec. 12, 2017).

2. According to the reasoning of the lower judgment and the evidence duly admitted, the Plaintiff entered into a sales contract with Defendant C, on November 24, 2014, with which the Plaintiff would be entitled to purchase KRW 180,000,00 from the Korea Land and Housing Corporation (hereinafter “instant sales contract”). At the time of the instant sales contract, the Plaintiff did not obtain consent from the Korea Land and Housing Corporation (hereinafter “the instant sales contract”). ② A was selected as eligible subject to the relocation measures of the instant development project on September 6, 2013; and the Plaintiff entered into a sales contract with the Korea Land and Housing Corporation to be supplied with the migrants (hereinafter “instant housing site”) as indicated in the lower judgment (hereinafter “instant sales contract”); ③ The Defendants died of the Defendants’ joint inheritance on September 19, 2015, during the first instance trial.

3. Examining these facts in light of the legal principles as seen earlier, the instant sales contract constitutes a contract with the purport to resell the migrants created under the Housing Site Development Promotion Act before the transfer of ownership is registered. Since the instant sales contract was concluded without the consent of the Korea Land and Housing Corporation prior to the conclusion of the sales contract with the Korea Land and Housing Corporation, the executor, and as such, B does not have any obligation to cooperate in the procedure of applying for the consent to resell the said housing site from the Korea Land and Housing Corporation. Although B received the instant housing site by the instant sales contract, such circumstance alone cannot be viewed differently.

Nevertheless, the lower court determined otherwise, that the instant sales contract was in the state of flexible invalidation, which can be retroactively effective upon obtaining the consent of the Korea Land and Housing Corporation after its ex post facto approval, and on that premise, determined that the Defendants, the inheritor of B, have a duty to cooperate to ensure that the instant sales contract would be effective, and that the Plaintiff is obliged to implement the procedure for applying for the consent to the resale to change the buyer’s name as to the instant sales contract in accordance with

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the validity of the resale of the migrants who violated Article 19-2 of the Housing Site Development Promotion Act, the consent of the implementer as stipulated in the Enforcement Decree of this case, and the validity of the sale contract for the sale of the migrants housing site without such consent, which affected the conclusion of the judgment.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Jeong-hee

Chief Justice Park Sang-ok

Justices Noh Jeong-chul

Justices Kim In-bok