The legislative intent of Article 19-2 of the former Housing Site Development Promotion Act and Article 13-3 of the Enforcement Decree of the same Act / The validity of a sales contract for the sale of a housing site that requires the seller to resell the housing site to be supplied in the future before entering into a housing site supply contract as it is, and whether the seller is obligated to cooperate with the procedure of “project implementer’s consent” with respect to the housing site to

Articles 1, 19-2, and 31-2 of the former Housing Site Development Promotion Act (Amended by Act No. 10303, May 17, 2010); Article 13-3 of the former Enforcement Decree of the Housing Site Development Promotion Act (Amended by Presidential Decree No. 23113, Aug. 30, 201);

Plaintiff (Law Firm Jae-ju, Attorney Jung Young-young, Counsel for plaintiff-appellant)

Defendant

Seoul High Court Decision 2016Na2060806 decided April 27, 2017

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

The grounds of appeal are examined.

1. According to Articles 19-2 and 31-2 of the Housing Site Development Promotion Act, a person supplied with a housing site developed pursuant to the Housing Site Development Promotion Act shall not resell the housing site as it is without using it for the purpose of its supply until the registration of ownership transfer is conducted: Provided, That such restriction may not apply to cases prescribed by Presidential Decree. In cases of resale of the housing site in violation of such restriction, the relevant juristic act shall become null and void and subject to criminal punishment. Meanwhile, according to the proviso to Article 13-3 (1) of the former Enforcement Decree of the Housing Site Development Promotion Act (amended by Presidential Decree No. 26485, Aug. 11, 2015), the term “cases prescribed by Presidential Decree” in the proviso to Article 19-2 (1) of the Housing Site Development Promotion Act means cases where a purchaser has obtained the consent of the implementor as prescribed in any of subparagraphs 1 through 9: In cases of school facilities under subparagraphs 1, 2 and 5, and 7, the ownership of a person supplied with the housing site by a public corporation or a trust agreement under the Housing Development Promotion Act (hereinafter referred to the Act).

In full view of the legislative purport, etc. 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 act of resale of housing sites created under the Act shall be prohibited in principle prior to the registration of ownership transfer in the light of the circumstances in which the Housing Site Development Promotion Act was provided, and the purport of the provision that the act of resale is exceptionally permitted only in cases where it is necessary to give an opportunity to sell ownership of housing sites prior to the registration of ownership transfer or where there is no concern about speculative transactions in light of the purpose of the relevant housing site, the parties to a resale contract, the reasons for conclusion of a resale contract, the resale price, etc., and the requirement that the consent of the project operator is required to obtain the consent of the project operator. Accordingly, an application for supply of housing sites for the purpose of acquiring the housing site is necessary to restrain the supply of the housing site to the actual users who intend to use the housing site for that purpose.

Therefore, the phrase “the consent of the implementer” stipulated by the Enforcement Decree of the instant case as the special requirement for the restriction on resale is premised on the conclusion of a housing site supply contract with respect to a housing site developed in accordance with the Housing Site Development Promotion Act. Even if the sale and purchase contract with the intent to resell the housing site to be supplied in the future before the conclusion of the said housing site supply contract was concluded, it is impossible for the 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

2. According to the reasoning of the lower judgment and the evidence duly admitted, the Plaintiff entered into a sales contract with the Defendant on October 6, 2014 with the content that the Plaintiff would sell the ownership of the housing site of the migrants to be supplied by the implementer of the development project for the internationalization planned district of Goduk-gu (hereinafter “instant sales contract”). At the time of the instant sales contract, the Plaintiff did not consent from the implementer; (2) thereafter, the Plaintiff was selected as a person eligible for the supply of the housing site for the said development project; and (3) on May 26, 2016, the Plaintiff concluded the sales contract with the Gyeonggi-do Si Corporation (hereinafter “instant housing site”) to be supplied with the land (hereinafter “instant sales contract”).

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 leased housing site created under the Housing Site Development Promotion Act before the registration of ownership transfer. Since it was concluded without the consent of the Gyeonggi-do Si construction, which is the implementer, prior to the conclusion of the contract for sale of the leased housing site with the Gyeonggi-do Si construction before the contract for sale of the leased housing site was concluded, its validity is null and void. The Plaintiff is not obliged to cooperate with the application procedure for the consent to resell the leased housing site from the Gyeonggi-do construction. Although the Plaintiff received the instant housing site by the instant

Nevertheless, on the grounds indicated in its reasoning, the lower court determined that the instant sales contract cannot be deemed null and void merely because it did not obtain the consent of the implementer, and rather, the Defendant may claim the Plaintiff to cooperate with the Plaintiff in the procedures for applying for the consent to the resale of the implementer based on the instant sales contract, and rejected the Plaintiff’s claim seeking confirmation of invalidation.

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the validity of resale of the migrants who violated Article 19-2 of the Housing Site Development Promotion Act, the interpretation of "the consent of the implementer" as stipulated in the Enforcement Decree of this case, and the validity of sale contract of the migrants housing site without the 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 Park Sang-ok (Presiding Justice)