Plaintiff (Attorney Song In-bok, Counsel for the plaintiff-appellant)

Ansan Market (Attorney Kim Young-hun et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 200Na14488 delivered on August 1, 200

November 7, 2013

1. On March 18, 2013, the Defendant’s disposition of accepting the change of the name of the owner against the intervenor in the lawsuit is revoked.

2. Of the costs of lawsuit, the part resulting from the intervention shall be borne by the intervenor of the lawsuit, and the remainder shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. From June 6, 2004, the reconstruction promotion committee composed of the owners of ○○ apartment, △△ apartment, and △ apartment located in the Dong-dong, including the Plaintiff (hereinafter “instant promotion committee”) entered into an implementation agreement on the project of constructing and selling the main complex building (hereinafter “instant project”) with each land listed in the separate sheet (hereinafter “each land of this case”) around the day of June 6, 2004, and each individual according to the sequence in the separate sheet. The promotion committee of this case established the reconstruction association (hereinafter “instant association”) whose members are the above sectional owners.

On the other hand, according to Article 4 of the above enforcement contract, the committee of this case provides land 1, 2, and 4 of this case, which is the site of the ○ apartment, △△ apartment, and △ apartment, to the emuli.g., the committee of this case, and the construction work is conducted after completing the purchase of the land 3, 5, 6, and 7 within 30 days after the above execution contract, and part of the newly constructed building is supplied to the committee of this case as payment in kind for the land 1, 2, and 4 provided by the committee of this case, and the remaining part of the building is supplied to the committee of this case as payment in kind for the land 1, 2, and 4.

B. On May 31, 2005, the instant union and its members entered into a contract for the construction of the instant project with Sungwon Construction Co., Ltd. (hereinafter “Mawon Construction”) as the joint executor of the instant project. According to Article 3 of the said contract for the construction work, the act of Pyeongtaek’s act on behalf of the instant union and its entire members is deemed to be the act of the instant union and its entire members.

C. On July 11, 2006, 79 members of the instant association, including the Plaintiff, were granted a building permit from the Defendant to construct three main complex buildings with the size of 24 stories above the fourth floor above the ground on each of the instant land (hereinafter “instant building permit”; and, in total, the instant building owner, the instant building owner and the instant members, collectively referred to as “existing building owner”).

D. After that, on March 26, 2007 between the Plaintiff and the Korea Housing Guarantee Co., Ltd. (hereinafter “Korea Housing Guarantee Co., Ltd.”), the members of the instant association, including the Plaintiff, entered into a trust agreement for the purpose of executing the instant project with the Korea Housing Guarantee Co., Ltd. (hereinafter “Korea Housing Guarantee Co., Ltd.”). On April 13, 2007, the title of the instant trust agreement was entered into between the Korea Housing Guarantee Co., Ltd. and the Korea Housing Guarantee Co., Ltd. (hereinafter “Korea Housing Guarantee Co., Ltd.”) with the terms and conditions identical to the instant trust agreement, under which the title of the instant trust agreement was entrusted to the Korea Housing Guarantee Co., Ltd. (hereinafter “instant trust agreement”), and the title of the instant trust agreement was completed until the completion of the registration of the trust in the future for each of the instant lands on the date of concluding the contract (hereinafter collectively referred to as the “instant trust agreement”).

(2) Where the trust property of this case falls short of the value of the trust property of this case under Article 1 (1) (2) of the Trust Contract, the trust property of this case shall be subject to the following provisions: (3) the trust property of this case shall be subject to the disposal of real estate under Article 1 (2) of the Trust Contract; (4) the trust property of this case shall be subject to the disposal of trust property of the trust property of this case; (4) the trust property of this case shall be subject to the disposal of trust property of this case; (5) the trust property of this case shall be subject to the disposal of trust property of the trust property of this case; (5) the trust property of this case shall be subject to the disposal of trust property of this case; (3) the trust property of this case shall be subject to the disposal of the trust property of this case by the disposal of trust property of the trust property of this case and the disposal of trust property of the trust property of this case of which the disposal of trust property of this case falls short of the value of the trust property of this case; and (4) the trust property of this case shall be subject to the disposal of trust property of trust property of this case.

E. On July 8, 2005, the Defendant received the instant building permit request from the members of the instant association to supplement the contents that “the owners are composed of a large number of owners, so submission of evidential documents to verify the owner’s intention for the application for the building permit and the selection of the representative of the owner,” and the members of the instant association including the Plaintiff submit to the Defendant a letter of appointment of the owner’s representative to the effect that the owners are selected as the owner’s representative around August 1, 2005. In addition, the members of the instant association including the Plaintiff were to submit to the Defendant the letter of appointment of the owner’s representative to the effect that “the members of the instant association, including the Plaintiff, etc., shall be deemed to have obtained the consent to the issuance of the purchase contract, issuance of the written notification, receipt of the results of all administrative acts, receipt and redemption of the loans, and the representative of the said joint and several surety, etc., and shall not be deemed to have obtained the consent to each of the instant building owners or owners’ rights to the instant housing, including the instant housing, etc.

F. On or around June 22, 2007, the title of the instant project began to be sold to the general public. After that, it became impossible to proceed with the instant project due to the default on construction of Sungwon, a contractor, and the title of the housing warranty was refunded to the buyer in general, a total of KRW 26,492,605,750, and the title of the instant trust contract was refunded to the buyer in lots. In order to recover the costs required for the refund pursuant to Articles 17 and 18 of the instant trust agreement, the title of the instant building was three buildings constructed on each of the instant land and the instant land and the instant unregistered buildings (hereinafter referred to as the “instant unregistered building”). On September 6, 2011, the sales contract was concluded with the Defendant, a successful bidder, to purchase and sell the instant real estate as KRW 26,492,600,400, and the instant real estate as the sales contract was concluded with the Plaintiff as the title of the instant real estate as the sales contract.

On the other hand, on June 2, 2011, the Korea Housing Guarantee revealed the following precautions through the public sale of this case, and the public sale conditions stipulate that “the instant workplace consists of 142 households in general sale and 77 households in the instant association members’ portion (77 households as two members of the instant association withdraw from 79 members of the instant association). The 77 members of the instant association are members of Pyeongtaek and joint owners. The land among each of the instant land is 5,067 square meters in lots, and the land is 1,718.7 square meters in lots, which is the principal debtor of the instant land, and the remaining 3,348.7 square meters in lots, are the shares of the instant association members of the instant association, but the remaining 5,067.4 square meters in trust to the Korea Housing Guarantee Co., Ltd., but after its acquisition in the public sale procedure, the procedure of the instant building permit should be changed to the owner of the instant building.”

In the case of a business place where the Korea Housing Guarantee Co., Ltd.* (referring to a business place where the construction contractor is unable to deal with or perform the construction work, the business site and the construction right are returned to the purchaser, and the business site and the construction right are sold to other construction companies) in the main text, the Korea Housing Guarantee Co., Ltd. shall provide a business transfer note (or a standard housing sale trust contract) submitted from the project owner at the time of issuance of the sale guarantee, and cooperate with the change of the project owner, and the responsibility for the project, such as the change of the project owner, shall be borne by the purchaser, and a private contract may be made before the next public sale date, and the circumstances of the public sale may change according to the circumstances of the Korea Housing Guarantee Co., Ltd. (7) The Korea Housing Guarantee Co., Ltd., after the conclusion of the sales contract, belongs to our company as the foregoing penalty, and the remainder of the purchase price paid by the purchaser except the down payment from the purchase price paid by the purchaser, shall be in addition to the payment rate calculated in accordance with the Housing Guarantee Regulations.

G. The Korea Housing Guarantee Co., Ltd. and the Korea Housing Guarantee shall pay KRW 11,200,000,000 out of the balance of the purchase price, excluding KRW 2,240,000,00 as at the time of the instant purchase and sale contract, until December 6, 2011 (Article 3(1)). The seller may rescind the contract where the buyer fails to pay the purchase and sale price of the real estate within one month from the date of the purchase and sale agreement, and the seller shall be entitled to receive documents necessary for the registration of the transfer of ownership without delay when the purchase and sale agreement is fully paid (Article 7(1)); however, where the payment of the purchase and sale price of the real estate is delayed due to the delay in the payment of the intermediate payment and the remainder, the seller may not request the seller to refund the ownership of the real estate within one month from the date of the purchase and sale agreement (Article 6(2)); however, where the buyer fails to request the seller to transfer ownership of the real estate within one month from the date of the purchase and sale agreement.

H. On October 7, 2011, the litigation intervenor entered into an underwriting contract with the Korea Housing Guarantee and the content that the purchaser of the instant sales contract would accept the status of the EP as it is (i) the purchaser of the instant sales contract (hereinafter “instant underwriting contract”).

I. On June 7, 2012, the Korea Housing Guarantee notified the litigant of the cancellation of the instant sales contract on the ground that “the intermediate payment and remainder payment have not been made after the lapse of June 5, 2012, which was the due date for the final postponed payment.” However, on June 29, 2012, the Intervenor was paid the remainder of the sales price excluding the down payment already paid by EP, and the overdue interest thereon. At the same time, the Plaintiff issued a document for registration of ownership transfer of each of the instant land to the litigant. In addition, the instant unregistered building on each of the instant land was owned by the Korea Housing Guarantee as the object trusted by the members of the instant association to the Korea Housing Guarantee, but the Korea Housing Guarantee sold it to the litigant on October 7, 2011 in accordance with lawful procedures, and completed the registration of ownership transfer of each of the instant land under the name of the litigant.”

(j) On the other hand, on June 29, 2012, the assignee of the instant real estate as above is “documents evidencing the alteration of rights” under Article 11(1) of the Enforcement Rule of the Building Act, which is “documents evidencing the alteration of rights.” (1) a trust contract made between members of the instant association and the guarantee of housing for the members of the association, (2) a trust contract made between the members of the association, (3) a representative letter of delegation made by members of the association, and (4) a letter of transfer drawn up before applying for the guarantee of sale in lots for the instant project, (5) a certificate of transfer of the ownership of the building drawn up and delivered from the Korea Housing Guarantee, (6) a real estate sales contract made between the Korea Housing Guarantee and EA, (7) a real estate sales contract made between the intervenor and the owner of the instant real estate sales contract, and (8) a certificate of completion or completion of the purchase price issued from the Korea Housing Guarantee, which was not prepared under the name of the owner of the instant building, and thus, the modification of the existing building was not made under the title 1.

(k) The intervenor in the lawsuit filed a lawsuit seeking revocation of the above order of change report against the owner of the building as Suwon District Court 2012Guhap10032, and on December 6, 2012, the above court rendered a judgment accepting the claim of the intervenor on the ground that the documents submitted by the intervenor in the lawsuit are documents proving the change of the legal relationship under Article 11(1) of the Enforcement Rule of the Building Act.

타. 이에 소송참가인은 2013. 3. 5. 이 사건 제① 내지 ⑧증명서류에 ⑨ 기존 건축주 대표자 선임 선정날인서(이하 ‘이 사건 제⑨증명서류’라 하고, 이 사건 제① 내지 ⑨증명서류를 통틀어 ‘이 사건 각 증명서류’라 한다) 및 위 수원지방법원 2012구합10032 판결 문 등을 첨부하여 다시 이 사건 건축허가의 건축주를 기존 건축주에서 소송참가인으로 변경한다는 내용의 건축주변경신고를 하였고, 피고는 같은 달 18. 이 사건 제① 내지 ⑨증명서류를 건축법 시행규칙 제11조 제1항 의 ‘권리관계의 변경사실을 증명할 수 있는 서류’로 인정하여 위 건축주변경신고를 수리한 후 그 사실을 소송참가인에게 통보하였다(이하 ‘이 사건 처분’이라 한다).

(m) The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Gyeonggi-do Administrative Appeals Commission, but the Gyeonggi-do Administrative Appeals Commission dismissed the said appeal on June 26, 2013.

Ha. Meanwhile, on January 3, 2012, the Plaintiff asserted that the instant trust agreement becomes null and void, and filed a lawsuit seeking cancellation of trust registration against Korea Housing Guarantee (Seoul Southern District Court Decision 2012Gadan291). However, the said court rendered a ruling of dismissal of claims on November 29, 2012, and the appellate court dismissed the Plaintiff’s appeal on May 23, 2013 (Seoul Southern District Court Decision 2012Na5177) (Seoul Southern District Court Decision 2013Da206832). While the Plaintiff appealed on September 12, 2013 (Supreme Court Decision 2013Da206832), the said ruling became final and conclusive around that time. Moreover, the Plaintiff asserted that the Plaintiff’s act of transferring the Plaintiff’s share to each of the instant land constituted an act of disposal in violation of Article 52 of the Trust Act’s dispositive Order 2015, supra.

[Ground for recognition] Facts without dispute, Gap's entries in Gap's 1, 2, 4, 5, 6, 14, 15, 17, 18, 20, Eul's evidence 2-1, 2, 4 through 11 (including branch numbers; hereinafter the same shall apply), 13, 14, and 15, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition should be revoked on the grounds that it is unlawful for the following reasons.

① A building permit was granted to a major complex building, which is an aggregate building of the fourth underground floor and the fourth floor above the ground, and the 4 through the seventh floor above the ground at the time when a participant in the lawsuit was entitled to acquire the above completed building from a house guarantee by the participant in the lawsuit, constitutes a real estate separate from each of the instant land, and constitutes a “the state in which at least a minimum columns, roof, and main walls exist” and constitutes a real estate separate from each of the instant land. Therefore, the fact of change in the relationship of rights can be proved only by the registration of ownership transfer on a registry, not a sales contract or land cadastre. Since the instant unregistered building is an independent real estate, the acquisition of ownership based on the sales contract is impossible in light of the provisions of Article 186 of the Civil Act because it is impossible to prove the fact of change in the relationship of rights, and thus, it is possible to submit a written consent for change in the name of the owner before the change or the owner in lieu thereof can only be the owner in the lawsuit for change of the title. Ultimately, each of the instant construction documents submitted at the time of the report shall not constitute a “rights”.

② Even if the instant building is not an independent real estate, the instant sales contract was retroactively null and void by giving notice of cancellation due to the default of payment of intermediate payments and remainder to the litigant on June 7, 2012, and later, the instant sales contract was retroactively null and void. Then, “If the former purchaser pays for the proceeds of sale, interest in arrears, and expenses incurred in advance prior to the public auction after the cancellation of the sales contract, the contract may be restored in case where the former purchaser pays for the proceeds of sale, interest in arrears, and expenses incurred in lump sum” pursuant to the internal regulations of the Korea Housing Guarantee Act, the litigant made a registration of ownership transfer for each of the instant land by paying the remaining payment to the litigant to the litigant. This is in violation of the Act on Contracts to Which the State is a Party. Accordingly, the registration of ownership transfer for each of the instant land is null and void, and the litigant cannot be deemed as the owner of the instant building under the premise that the litigant’s ownership cannot be seen as the “acquisition of the building under construction” under Article 11(1(1(1)1 of the Enforcement Rule of the Building Act.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) First, we examine whether the Plaintiff’s assertion (i.e., each of the instant evidentiary documents constitutes “documents proving the change in rights” under Article 11(1) of the Enforcement Rule of the Building Act.

In full view of the written evidence evidence Nos. 3 and 20, at the time of acquisition by the intervenor of the lawsuit of this case from the Korea Housing Guarantee, the fact that the building of this case, at the time of acquisition by the intervenor of the lawsuit, was completed by the structural structure and form of the building of this case, to the 6th above ground in the case of A, to the 3th above ground in the case of B consent, to the 4th above ground in the case of C consent, to the 7th above ground in the case of A consent, to the 4th above ground in the case of B, to the 5th above ground in the case of C consent, and to the structural construction of the 5th above ground in the case of C, was suspended. According to the above facts, the building of this case, at the time of acquisition, is an independent building with the structure and form of the building of the foundation and form as a social norm, and was owned by the building owner

The Korea Housing Guarantee, as a guarantor for the sale of buildings in general, has refunded the sale price of KRW 26,492,605,750 in total to the buyers, and thereafter has conducted a public sale of the real estate in this case to recover the expenses required for the refund under Articles 17 and 18 of the trust contract of this case. According to Articles 17 and 18 of the trust contract of this case, the Korea Housing Guarantee is allowed to sell the trust property for the recovery of substitute payment, etc., and the building under Article 1 of the trust contract of this case is also a trust property. However, unless the buildings in this case are independent real estate as mentioned above, it is necessary to register the ownership change due to legal act unless there are special circumstances, and it is not possible to create the building ledger and the registry itself due to the lack of approval for use of the buildings in this case. It is equivalent to an unregistered building, and it is difficult to recognize its de facto ownership or ownership to the transferee (see Supreme Court Decision 200Da49706, Oct. 27, 2006).

As above, insofar as the ownership or de facto ownership of the building not yet completed under the instant trust contract does not belong to the house guarantee, the Korea Housing Guarantee or the litigant’s right to acquire through the said trust contract or public sale is not itself a right to seek ownership transfer, but a right to seek ownership transfer. Therefore, it is difficult to deem that the legal relationship on the building not yet completed has changed immediately.

이 사건 조합의 조합원들이 2005. 8.경 화평을 건축주 대표자로 선정하는 취지의 건축주 대표자 선임 선정날인서(이 사건 제⑨증명서류)를 피고에게 제출한 사실, 2007. 1.경 화평에게 일반분양계약의 체결과 분양보증서의 발급 등에 관하여 화평에게 대표성을 위임하는 내용의 동의서(이 사건 제③증명서류)를 작성하여 준 사실, 화평이 2007. 6. 1. 대한주택보증에게 부도·파산 등의 부득이한 사유로 더 이상 사업을 계속할 수 없게 되는 경우에 ‘이 사건 각 토지 및 미완성건물을 포함하여 이 사건 사업에 관한 일체의 권리를 양도한다’는 내용의 양도각서(이 사건 제④증명서류)를 작성하여 준 사실은 앞서 본 바와 같으나, 이 사건 제⑨증명서류는 그 작성 경위에 비추어 볼 때 건축허가신청과 관련된 대표자 선정서로 볼 수 있고, 이 사건 제③증명서류는 일반분양계약의 체결, 행정행위의 신청, 대출금 수령 등과 관련된 부분만이 위임 대상으로 명시되어 있을 뿐이어서 화평이 2007. 6. 1. 대한주택보증에게 한 바와 같은 이 사건 부동산 전부에 대한 양도 등 권한을 위임한 것인지는 명확하지 않다. 나아가 이 사건 제④증명서류에는 그 양도인이 화평으로만 되어 있고, 화평이 이 사건 조합의 조합원들을 대표하여 하는 것이라는 취지도 나타나 있지 않다.

In the Suwon District Court case No. 2012Guhap10032, 2012, where the intervenor filed a lawsuit against the defendant, the claim of the intervenor was accepted on the ground that the document verifying the alteration of the legal relationship under Article 11(1) of the Enforcement Rule of the Building Act was a document evidencing the alteration of the legal relationship. However, as to this, the defendant appealed and filed a lawsuit in the appellate court at the time of the disposition of this case. The trust contract of this case was invalid, and the trust registration cancellation lawsuit filed by the plaintiff against Korea Housing Guarantee was also pending in the court, and the defendant was also well aware of these circumstances.

Nos. (1) through (4) of this case and (9) of certificate and Suwon District Court Decision 2012Guhap10032 of this case are “documents evidencing the change in the relation of rights” as seen above, and the remaining documents of this case are documents prepared between Nos. 1 to 8 of this case’s house guarantee or house guarantee and No. 2 of this case’s house guarantee and No. 3 of this case’s certificate are insufficient to prove the transfer of rights to the buildings not completed.

(2) Therefore, each of the instant evidentiary documents and the Suwon District Court Decision 2012Guhap10032 cannot be deemed to have been equipped with “documents evidencing the change in the relationship of rights” under Article 11(1) of the Enforcement Rule of the Building Act with respect to the instant unregistered buildings, the Defendant’s disposition based on a different premise is unlawful without any need to further examine the remainder of the Plaintiff’s assertion.

3. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case is reasonable, and it is so decided as per Disposition with the assent of all Justices.

[Attachment]

Judges Kim Jong-sik (Presiding Judge)