2019Da259234 Action claiming the return of down payment, etc.

1. A;

2

3

4

5. E.

6. F (Before name: G)

7. H;

F1

J

10. K;

11, L

A person shall be appointed.

A person shall be appointed.

14. 0

15. P;

16. Q.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

YRegional Housing Association

Seoul High Court Decision 201942003286 Decided July 18, 2019

December 12, 2019

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

The grounds of appeal are examined.

1. The project of a regional housing association under the Housing Act is conducted by inviting its members in advance before the establishment of a regional housing association, purchasing a project site with contributions, etc. or obtaining approval for use, and thereafter securing an additional ownership with approval for establishment of an association, and constructing an apartment house and other housing with approval for the establishment of an association. Thus, there may be circumstances such as changes in the initial project plan depending on various variables that affect the project failure, such as recruitment of association members, securing of finances, and land purchase work (see Supreme Court Decision 2013Da75892, Jun. 12, 2014).

Therefore, in a case where a person who becomes a partner of a regional housing association enters into an agreement on the joining of an association on the premise that the rights and obligations of the association may be modified differently from the terms of the initial agreement on joining the association in the course of the project implementation, barring special circumstances, such as that the modification of such rights and obligations exceeds the foreseeable scope, the said agreement cannot be rescinded by deeming that the modification of such rights and obligations exceeds the permissible scope (see Supreme Court Decision 2018Da212467, Nov. 14, 2019).

2. A. According to the reasoning of the first instance judgment cited by the lower court and the evidence duly admitted by the lower court, the following circumstances are revealed.

1) The Defendant is a regional housing association established around February 2, 2015 for the purpose of constructing a new apartment in the Z area in the Z area in the Z area in the Z area in the Z area. The remaining Plaintiffs except the Plaintiff U and AA entered into an agreement with the Defendant to enter into an association with the purport that they would be provided with the instant designated housing units belonging to the AC Dong and ADdong (hereinafter “instant apartment”).

2) The remaining Plaintiffs except Plaintiff U and AA paid the down payment and business promotion expenses according to the instant association membership agreement. After that, the Plaintiff, the husband, and Plaintiff U, U.S., succeeded to the status under the instant association membership agreement of the Plaintiff, the Plaintiff, and U.S., the husband, due to the death on November 2, 2017. 3) although the instant apartment was planned to be newly built on the first 1,121 household units, but part of the project site was not secured, the business plan was modified to be newly built on January 1, 2016, and as a result, the new construction of AC and AD consent was non-existent.

4) Although the defendant announced the plaintiffs that it may be changed to an apartment unit of another Dong/Dong, the plaintiffs notified the cancellation of the joining agreement of the association of this case by serving a duplicate copy of the complaint of this case. 5) The plaintiffs other than the plaintiffs U and AA prepared and submitted at the time of entering into the joining agreement of the association of this case (hereinafter referred to as "each letter of this case") shall not raise an objection even if there is a little difference in the size and ownership of the apartment complex and the site after entering the association of the area of the apartment complex of this case (tentatively named) and after entering into the association of the YY regional housing association of this case. (tentatively named "Article 6), the plaintiff confirmed the affairs of the association decided by the (tentatively named) YY regional housing association and the agency service company of the association of this case, and it is possible to modify and adjust the project plan (design, funding plan, scale of business, etc.) at the time of its approval, and shall not raise any objection.

B. Even according to the revised business plan based on the aforementioned factual basis, even if the size of the newly constructed apartment complex was 1,014 households, the Plaintiffs could be supplied with a different apartment complex with a location and area similar thereto instead of the designated number of the instant apartment complex, which was originally supplied by the Defendant. Thus, barring any special circumstance, such alteration may be deemed to constitute a change in the apartment complex placement and business plan within the scope stipulated in the instant letter, barring any special circumstance.

2) Changes, etc. in the initial project plan in the process of implementing the regional housing association project

The plaintiffs also seem to have prepared and delivered the letter of this case to the effect that some differences occur in the placement of the apartment complex after the conclusion of the association subscription contract of this case or even if the business plan is modified, they will not raise an objection.

3) Therefore, solely on the fact that the Plaintiffs were unable to be supplied with the apartment units of the Dong and lake that were originally designated, it cannot be readily concluded that the instant association membership agreement was breached or the Defendant’s apartment supply against the Plaintiffs was impossible.

C. Nevertheless, the lower court determined that the Defendant’s obligation against the Plaintiffs under the instant membership agreement became impossible due to the Defendant’s fault, and that the instant association membership agreement was lawfully rescinded. In so doing, the lower court erred by misapprehending the legal doctrine on the cancellation of the membership agreement of the regional housing association, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal

3. Therefore, without further proceeding to decide on the remainder of the grounds of appeal, 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 Kim Jong-soo

Justices Kwon Soon-il

Justices Lee Ki-taik

Justices Park Jung-hwa