Korea Housing Guarantee Company (Law Firm Apex, Attorneys Kim Jae-sik, Counsel for the defendant-appellant)

National Bank of Korea (Law Firm LLC, Attorneys Park Jae-sung et al., Counsel for the defendant-appellant)

October 4, 2012

Seoul Central District Court Decision 2011Gahap11447 Decided April 10, 2012

The plaintiff's appeal is dismissed.

Expenses for appeal shall be borne by the plaintiff.

The judgment of the court of first instance is revoked. The defendant shall revoke the judgment of the court of first instance with respect to each real estate listed in the attached list to the plaintiff. The judgment of the court of first instance ordering the plaintiff to implement the registration procedure for cancellation of the registration of the establishment of the neighboring establishment completed on January 2, 200

1. Case summary

This case is a case where the plaintiff, who guaranteed the new construction and sale business of the Dispute Resolution Co., Ltd. (hereinafter referred to as the "Co. Construction") against the defendant, seeks the implementation of the procedure for registration of cancellation of the registration of the establishment of a neighboring mortgage registered in the name of the defendant in the name of the defendant in order to preserve the plaintiff's right to claim registration of the transfer of the ownership of the newly constructed house in the name of the defendant against the additional registration of prohibited matters or against public order and morality.

The first instance judgment dismissed the Plaintiff’s claim on the ground that the registration of establishment of a mortgage in the name of the Defendant was not null and void, and the Plaintiff appealed against this.

2. cite the judgment of the court of first instance

The reasoning for the court’s explanation concerning this case is as follows: (a) the 3rd 10th 2nd 3rd 3rd 10 of the judgment of the court of first instance, " July 25, 2010", and (b) the 10th 20th 20 to 14th 14th 206, respectively, are the same as the reasoning for the judgment of the court of first instance, except for the change of the 10th 20 to 14th 3rd 3rd 3rd 200

3. Whether the registration of establishment of a neighboring mortgage in the name of the defendant is null and void against the additional registration of prohibited matters;

(a) Whether the establishment registration of neighboring houses can be completed;

【Plaintiff’s Claim】

The Plaintiff asserts that the establishment of the right to collateral security should be restricted in full without the consent of the prospective occupants with respect to the unbuilt buildings, which are not completed due to only the housing and housing sites constructed under the language and text of the Housing Act and its Enforcement Decree, or the exceptional subject to the restriction on the establishment of the right to collateral security. However, the Plaintiff asserts that the establishment of the right to collateral security under the name of the Defendant, which was completed without the consent of the prospective occupants, is null and void,

[Judgment]

(1) In full view of the purport of the entire pleadings, the following facts can be acknowledged in evidence (A9, B-1-1, B-2, B-2, B-3, 4, B-1, 5-2).

㈎ 피고와 우민건설의 대출협약 등

On July 3, 2006, the Defendant concluded an agreement to lend the sale price to the seller of the apartment on the ground ( Address omitted) lot (hereinafter referred to as “○○ apartment”) unit (hereinafter referred to as “the apartment”) in the Asia-si, which is constructed and supplied by the Domin Construction and the Domin Construction, and agreed as follows.

(1) On the date of the payment of intermediate payment of the pre-sale construction, the Defendant shall deposit a loan within the extent of the loan limit agreed upon by the seller into the deposit account of pre-sale construction, and if the pre-sale contract is to return the pre-sale price received from the seller due to the cancellation or termination of the pre-sale contract, he/she shall first appropriate the loan to the Defendant (loan Convention, Articles 3, 1(3) and 3(2) of the Convention).

(2) The Defendant shall grant an intermediate payment loan only to a seller for sale in lots separately notified by Postal Construction (Article 3(1) of the Loan Convention), and the confirmation of the seller for sale in lots under the Convention shall be based on the contract for sale in lots, etc., and when the Defendant executes a loan by means of the contract for sale in lots, etc., Postal Construction bears the obligation prescribed by the Convention unless the Defendant gross negligence is

(3) When the transfer registration of ownership of a seller for sale in lots is implemented, it shall be notified in advance to the defendant's side so that the defendant can simultaneously implement the registration of establishment of mortgage of the first-class neighborhood without prior lease and limited real rights at the same time, and if the matters are not carried out, it shall be responsible for the construction of the friendly. (Article 6 of the Loan Convention and Article 3(3) of the Convention)

(4) Where the Postal Construction Act provides a joint and several surety for loans to the Defendant of a seller for sale in lots, the Postal Construction Act signed and sealed on the Defendant’s letter of guarantee for sale in lots and submitted it to the Defendant and the Defendant is liable to guarantee Postal Construction when the Defendant receives it (Article 5(1) and (2)

(5) The guaranteed obligation of friendly construction ceases to exist at the time when the defendant completed the registration of creation of a neighboring mortgage on the apartment sold in lots by the seller (Article 5 (5) of the Convention and Article 8 (1) of the Loan Agreement).

㈏ 피고와 우민건설의 연대보증계약

Around October 2006, Postal Construction concluded a joint and several guarantee agreement with the defendant that, within the scope of 7.8 billion won and 18.2 billion won, the debtor jointly and severally bears the guaranteed obligation between the seller and the successor of ○○ apartment construction and the defendant, the seller and the successor of ○○ apartment construction agreed to separately notify the debtor's list to the defendant.

㈐ ○○ 아파트에 관한 우민건설 명의의 소유권보존등기

With respect to ○ apartment, on August 12, 2008, the creditor Samgu Mutual Savings Bank received a decision of provisional disposition prohibiting the disposal of the right to claim the registration of the establishment of a neighboring mortgage on August 12, 2008 (Seoul District Court Branch Decision 2008Kahap914), and upon the entrustment of the registration of provisional disposition, the registration of the ownership was made in the name of Domin Construction on August 18, 2008.

(2) Determination

㈎ 주택법에 따라 사업계획승인을 받아 시행하는 주택건설사업에 의하여 건설된 주택 및 대지에 대하여는 입주자모집공고승인 신청일 이후부터 입주예정자가 소유권이전등기를 신청할 수 있는 날(사업주체가 입주예정자에게 통보한 입주가능일) 이후 60일까지의 기간 동안 입주예정자의 동의 없이 당해 주택 및 대지에 저당권 등 담보물권을 설정하는 행위를 하여서는 아니되고[ 주택법(2009. 1. 30. 법률 제9366호로 일부개정되기 전의 것) 40조 1항 본문, 2항 ], 사업주체는 입주예정자의 동의 없이는 제한물권을 설정할 수 없는 재산임을 소유권등기에 부기등기하여야 하며( 주택법 40조 3항 본문), 부기등기일 이후에 당해 대지 또는 주택을 양수하거나 제한물권을 설정받은 경우에는 그 효력을 무효로 한다고 규정하고 있다( 주택법 40조 5항 ). 다만 당해 주택의 건설을 촉진하기 위하여 당해 주택의 입주자에게 주택구입자금의 일부를 융자하여 줄 목적으로 금융기관으로부터 주택구입자금의 융자를 받는 등의 경우에는 그러하지 아니하다[ 주택법 40조 1항 단서, 주택법 시행령(2009. 2. 3. 대통령령 제21290호로 일부 개정되기 전의 것) 44조 2항 2호 ].

The purpose of the Housing Act and the Enforcement Decree thereof is to protect the recipients of housing after the approval of the public announcement of invitation of residents, in principle, to complete the additional registration of the prohibited matters concerning the site and housing before the approval, and thereafter prohibit the disposal of the housing site and housing without the consent of the recipients of housing. Since the validity of the change of real rights by the disposal act prohibited from disposal and the effect of seizure, provisional seizure, provisional disposition, etc. is denied, the registration, seizure, provisional seizure, provisional disposition, etc. on the land and housing for which the additional registration of prohibited matters was made is not allowed (see Supreme Court Decision 2004Da46649, Nov. 26, 2004).

Although there exists a substantive examination authority to examine whether a building for which an application for auction has been filed is consistent with legal relationship under substantive law, but it has the authority to formally examine whether the requirements for registration are met with the application form, accompanying documents and registry, even in cases where a court determines that a unregistered building for which an application for auction has been filed through an execution officer’s investigation is subject to auction and requests a registrar to register the compulsory commencement decision, a registrar has the authority to examine whether the requirements for registration are met with the commission form and accompanying documents, and if the result of such examination does not coincide with the requirements for registration, the commission of registration of compulsory commencement decision shall be dismissed (see Supreme Court Order 206Ma920, Mar. 27, 2008; 206Ma920, Mar. 27, 2008; 2006Da1206, Mar. 12, 2008; 3). In such a case where an application for compulsory auction of unregistered building is not deemed to have been owned by a debtor; and where an application for construction permit or inspection thereof is not approved by a court under the proviso 21281.

㈏ 위 인정사실에 의하면, ○○ 아파트는 비록 사용승인을 받지는 못하였으나 이미 건물로서의 실질과 외관을 갖추고 지번·구조·면적 등이 승인받은 주택건설사업계획의 내용과 사회통념상 동일한 ‘독립한 건물’로 인정되어 그에 관한 가처분결정 및 소유권보존등기가 이루어졌다고 봄이 타당하다. 또 앞서 본 주택법과 그 시행령의 규정에 따르더라도 ‘건설된 주택’이 반드시 완공되어 사용승인을 받은 주택을 의미한다고 볼 근거는 없다. 따라서 완공되지 않은 주택의 경우에 입주예정자의 동의 없이 설정된 제한물권은 무효라는 취지의 원고의 주장은 이유 없다.

B. Whether the registration of establishment of a neighboring mortgage under the name of the defendant constitutes an exception under the proviso to Article 40 (1) of the Housing Act

【Plaintiff’s Claim】

The Plaintiff asserts that the registration of establishment of a neighboring house under the name of the Defendant is null and void without the consent of the prospective occupants, since it does not constitute an exception under the proviso of Article 40(1) of the Housing Act, since the Plaintiff was granted a loan to the buyer, not a project proprietor, but a sub-party, with respect to the housing construction of ○○ apartment house.

[Judgment]

(1) According to the above facts, the Postal Construction Act jointly and severally guaranteed a loan to the seller of the sale in lots, etc. notified by the Postal Construction to the Defendant as the principal debtor through a loan agreement and joint and several guarantee agreement concluded with the Defendant, within the limit of 26 billion won. The joint and several guarantee obligation of Postal Construction continues until ○○ apartment was established with the Defendant, and the individual seller of the sale in lots directly paid the loan to the Postal Construction, and the Postal Construction agreed to directly return the amount equivalent to the loan to the Defendant in the case of the cancellation of the sale in lots. Therefore, the joint and several guarantee obligation of the seller of the Postal Construction with the Defendant as the principal debtor and the loan from the Defendant in terms of legal effect or economic substance can be evaluated as identical in terms of the legal effect or economic substance.

In addition, it is common to undertake a housing construction project by concluding a loan agreement with a financial institution so that a seller can obtain a loan from a financial institution after a business proprietor of an apartment building project directly becomes an obligor, and then re-loans from a financial institution. Nevertheless, if the Housing Act and its Enforcement Decree allow a seller to establish a limited real right, etc. on a loan for the purpose of housing purchase funds to a business proprietor of a financial institution in the context of "the purpose of promoting housing construction" as mentioned above, it is interpreted as limited to cases where a seller receives a loan as a principal contractor as it is in the form of the text, it would be difficult to determine whether a business proprietor re-loans a loan to a seller, or to take measures such as ascertaining the business proprietor's ability to implement housing construction projects and the ability to repay a loan, and ultimately, it would be difficult to achieve the purpose of "housing construction promotion". Therefore, it is reasonable to view that the Defendant, as seen in this case, as a financial institution, directly granting a loan to a seller of housing purchase funds and directly grants a loan to a seller, as an exception to the extent of protection.

(2) In addition, according to the proviso of Article 45 (4) 1 of the Enforcement Decree of the Housing Act, the case where the Presidential Decree permits establishment of limited real rights, etc. after the supplementary registration of prohibited matters (the case where establishment of limited real rights, etc. is allowed after the supplementary registration of prohibited matters) is prescribed as the case where the mortgage, etc. is established on the relevant site as it falls under Article 44 (2) 2 of the Housing Act. However, this provision provides that the supplementary registration of prohibited matters under Article 32-3 (3) of the former Housing Construction Promotion Act (wholly amended by Act No. 6916 of May 29, 2003) shall be limited to "the relevant site for housing construction" and its Enforcement Decree (wholly amended by the Enforcement Decree of the Housing Act No. 18146 of Nov. 29, 2003) shall not be considered as the case where establishment of limited real rights, etc. is permitted after the supplementary registration of this Act, and shall not be reflected in the amended Enforcement Decree of the Housing Act as well as the relevant construction site.

4. Conclusion

Therefore, the plaintiff's claim is without merit. The judgment of the court of first instance which dismissed the plaintiff's claim is just, and the plaintiff's appeal is dismissed as it is without merit.

[Attachment]

Judge Lee Dong-hee (Presiding Judge)