[1] The status of the combined housing association under the contract for the sale of commercial buildings

[2] Where the registration of creation of collateral security or the registration of provisional seizure on the real estate which is the object of sale has not been cancelled, the requirements for the buyer to cancel the contract on such ground

[1] The combined housing association cannot be deemed as a simple business execution agency of the housing association under its control, and as an independent non-corporate association, has the status as a principal in relation to the association's apartment house or the sales contract for commercial buildings, but at the same time, has the status as a representative of the housing association under its control who is to become the title holder of the registration of ownership preservation.

[2] Where the registration of the establishment of a mortgage or the registration of provisional seizure was made on a real estate which is the object of sale, the seller is obligated to complete the registration of the establishment of a mortgage or the registration of provisional seizure. However, since the registration of the establishment of a neighboring mortgage or the registration of provisional seizure was not cancelled on the real estate which is the object of sale, the seller's obligation of the registration of the establishment of a neighboring mortgage cannot be deemed to be impossible, and unless the seller expresses his intention not to perform the registration in advance, the contract may be rescinded only when the buyer gives notice to the seller of the performance by setting a reasonable

[1] Articles 31 and 114 of the Civil Act, Article 33 of the Housing Construction Promotion Act / [2] Articles 544 and 563 of the Civil Act

[1] Supreme Court Decision 200Da96 delivered on September 10, 2002 (Gong2002Ha, 2423) / [2] Supreme Court Decision 91Da6368 delivered on September 10, 1991 (Gong1991, 2505) Supreme Court Decision 91Da23103 delivered on November 26, 1991 (Gong192, 286)

Plaintiff 1 and eight others (Law Firm Gyeong & Yang, Attorneys Song Jong-sung et al., Counsel for the plaintiff-appellant)

The First Area Housing Association of the Sung River District;

Seoul High Court Decision 99Na38219 delivered on August 24, 2000

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

We examine the grounds of appeal.

1. The judgment of the court below

According to the reasoning of the judgment below, the court below held that, despite the fact that the representative association of the housing association (hereinafter referred to as the "selected association") and the members of the reconstruction housing association (hereinafter referred to as the "renovation housing association") jointly formed the Seongdong District Housing Association (hereinafter referred to as the "Joint Housing Association") to promote the partnership apartment construction project on the land of this case, each of the sales contracts in this case was concluded between the plaintiffs on the land of this case where each of the stores within commercial buildings constructed on the land of this case was sold out with the plaintiffs, and each of the above sales contracts was completed on the land of this case. The establishment registration was completed on the land of this case with the non-sale housing Co., Ltd. and the remaining 19,50,000,000 No. 6,651,3477, the provisional attachment registration and the creditor head of the Housing Association concluded the provisional sale contract of this case to the seller of this case, and each of the above plaintiffs' housing associations and the seller of this case did not have completed the provisional attachment registration within 19,219, respectively.

2. Judgment on the appeal by Plaintiffs 1, 2, 6, 7, and 9

However, we cannot agree with the court below's decision that each of the contracts for sale in this case cannot be asserted to the designated parties' associations for the following reasons.

According to the records, the association and the reconstruction association are established solely for the purpose of jointly promoting the project because each association's size is small and medium enough to independently carry out the association apartment construction project. Members of each association are all the members of the association, and its officers are the president of the association, the secretary general, the director general, the members of the association, and the members of the association. The voting committee has a steering committee. The committee decided the confirmation and modification of the business plan as the highest resolution body of the association's highest decision-making body, the amount and method of payment of the association members, the conclusion and modification of the external contract, additional charges to the association members, and the resolution of the steering committee is stipulated under the regulations that the committee shall pass the resolution with the consent of at least 2/3 of the incumbent members and at least 1/2 of the members of the association. Although the selected association and the reconstruction association have the association to carry out all the affairs such as the construction of apartment houses, the allocation of non-members apartment houses, the sale of non-members, the sale of apartment houses in the name of the association or the association.

In the same way, the Union Housing Association cannot be deemed as a mere business execution institution of the Appointers' associations and reconstruction associations, and as an independent non-corporate association, has the status as a party to each sales contract of this case. At the same time, the Appointors' associations and reconstruction associations' representatives who are to become the title holders of the registration of initial ownership preservation shall also be held as the title holders (see Supreme Court Decision 2000Da96, Sept. 10, 2002). Accordingly, the above plaintiffs can claim the validity of each sales contract of this case as well as the association of the Appointors and reconstruction associations unless there are special circumstances. Thus, the judgment of the court below is erroneous.

Meanwhile, when the registration of the establishment of a neighboring mortgage or provisional seizure was made on a real estate which is the object of sale, the seller is obligated to complete the registration of the establishment of a neighboring mortgage or the registration of provisional seizure (see, e.g., Supreme Court Decisions 91Da6368, Sept. 10, 191; 91Da23103, Nov. 26, 1991; 91Da23103, Nov. 26, 199). However, since the registration of the establishment of a neighboring mortgage or provisional seizure was not cancelled on a real estate which is the object of sale, the seller's obligation to complete the registration of the establishment of a mortgage or provisional seizure cannot be deemed to be impossible. Unless the seller expresses his intention not to perform the registration in advance, the buyer may cancel the contract only when he gives notice to the seller to perform the registration within the reasonable period of time and fails to perform the contract within the reasonable period of time. According to the records, each of the above plaintiffs asserted that each of the sales contracts in this case was cancelled, and there is no evidence to prove that the above plaintiffs lawfully discharged.

Therefore, the judgment of the court below is erroneous as seen above, but the conclusion of rejecting all the claims of the above plaintiffs is justifiable. Thus, the appeal by the above plaintiffs cannot be accepted.

3. Determination on the appeal by Plaintiffs 3, 4, 5, and 8

The above plaintiffs did not submit the appellate brief within the specified period, and the petition of appeal does not contain any grounds of appeal.

4. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Seo-sung (Presiding Justice)