[1] Whether this provision is effective under Article 40 (1) of the Housing Act (negative) and in a case where a site is acquired by transfer, or a limited real right is established, or seizure, provisional seizure, provisional disposition, etc. is taken after the supplementary registration under paragraph (3) of the same Article, the validity thereof (negative)

[2] Whether it is against the principle of good faith or the concept of justice that a housing supply business entity, in collusion with a creditor, intentionally delays an application for additional registration under Article 40(3) of the Housing Act, and allowing a general creditor to seize, create a mortgage, etc. (affirmative)

[3] In a case where Gap savings bank requested Eul company to actively request Eul company prior to the additional registration under Article 40(3) of the Housing Act to secure a loan to Eul company, which is a business proprietor of apartment development project, and Byung applied for an auction even though it agreed not to implement the right to collateral security on the apartment that was sold in its own name, and Byung purchased apartment in its name at the auction procedure, the case holding that Gap bank is liable for damages suffered by Byung due to the creation and execution of the right to collateral security

[1] Even if a housing supply business entity offered or disposed of a house or site as security or in violation of the provisions of Article 40(1) of the Housing Act, the validity of a judicial procedure shall not be denied. However, only in cases where the supplementary registration under paragraph (3) of the same Article is completed, the validity of the acquisition by transfer of the site or establishment of a limited real right, or seizure, provisional seizure, provisional disposition, etc. after the date of supplementary registration shall be invalidated pursuant to paragraph (5) of the same Article.

[2] The supplementary registration under Article 40(3) of the Housing Act may be made only when a project undertaker files an application. If a project undertaker delays an application for additional registration in collusion with a creditor and thus causes a general creditor to seize or create mortgage, etc., this would be contrary to the principle of good faith or the concept of justice, as it leads to the transfer of damage to the prospective occupants by violating his/her duties by unlawful means.

[3] The case holding that in a case where Gap savings bank filed an application for an auction to exercise the right of collateral security on the ground that Byung and Byung agreed not to exercise the right of collateral security upon actively requesting Eul company to obtain the right of collateral security prior to the additional registration under Article 40 (3) of the Housing Act to secure the loan to Eul company, which is the business proprietor of the apartment development project, and Byung paid the purchase price to Eul company which was not himself/herself, and Byung purchased apartment in its name at the auction procedure and sought compensation for damages against Byung bank, the case holding that Eul bank cannot be seen as null and void unless the above act of collateral security was done prior to the additional registration under Article 40 (1) of the Housing Act even if Eul violated the Article 40 (3) of the Housing Act, but Eul bank did not exercise the right of collateral security on the ground that it actively requested Eul company to exercise the right of collateral security by actively participating in the whole apartment development project by continuously receiving a report from Eul, and it did not exercise the right of collateral security after Byung's establishment and execution even after Byung paid damages to Byung.

[1] Article 40(1), (3), (4), and (5) of the Housing Act; Article 105 of the Civil Act / [2] Article 40(1), (3), (4), and (5) of the Housing Act; Articles 2 and 750 of the Civil Act / [3] Article 40(1), (3), (4), and (5) of the Housing Act; Articles 2, 105, and 750 of the Civil Act

[1] Supreme Court Decision 2003Da52210 decided Jan. 29, 2004 (Gong2004Sang, 397) Supreme Court Decision 2004Da46649 decided Nov. 26, 2004 (Gong2005Sang, 40)

Plaintiff (Attorney Jeon Soo-ho, Counsel for the plaintiff-appellant)

Hyundai Savings Bank, Inc.

December 29, 2011

1. The defendant shall pay to the plaintiff 123,450,000 won with 5% interest per annum from July 10, 2010 to February 2, 2012, and 20% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 20% is borne by the Plaintiff, and the remainder 80% is borne by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 168,384,00 won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

1. The parties' assertion

A. The plaintiff's assertion

(1) 세흥종합건설 주식회사(이하 ‘세흥종합건설’로 줄여 쓴다)가 피고에게 사천시 대방동 소재 삼민해돋는마을아파트(이후 위 아파트는 ‘웰뷰파크아파트’로 명칭이 변경되었고, 이하 ‘이 사건 아파트’라고 한다) (동호수 생략)에 관하여 근저당권을 설정해준 행위는 ‘사업주체는 입주자 모집공고 승인 신청일 이후부터 입주예정자가 당해 주택 및 대지의 소유권이전등기를 신청할 수 있는 날 이후 60일까지의 기간 동안 입주예정자의 동의 없이 저당권 등 담보물권을 설정하는 행위를 하여서는 아니 된다’는 주택법 제40조 제1항 에 위배되어 무효이다.

(2) Despite the absence of this, the Defendant, in collusion with Sejong General Construction Co., Ltd., who is a project undertaker, intentionally, completed the establishment registration of a neighboring apartment under the name of the Defendant, while failing to complete the additional registration under Article 40(3) of the Housing Act, and carried out the right to collateral security. In addition, although the Defendant agreed not to execute the establishment of the right to collateral security on the apartment of this case owned by the Plaintiff to protect the Plaintiff, the purchaser of the apartment of this case, but the Defendant filed an application for a voluntary auction with the said right to collateral security and caused the Plaintiff to lose ownership on the apartment of this case (water omitted) in violation of the said agreement.

(3) Therefore, the Defendant is liable to compensate the Plaintiff for the damages incurred by the said act.

B. Defendant’s assertion

The defendant asserts to the effect that, in order to obtain a repayment of the obligation to loans to Sejong General Construction, the defendant exercised his right as a right to collateral security and collected the claim, and that the plaintiff did not pay the purchase price before the execution of the right to collateral security, the defendant did not have any responsibility for the plaintiff to lose the ownership of the apartment of this case.

2. Facts recognized;

A. On May 16, 2005, the Plaintiff concluded a sales contract to sell the instant apartment in its own name at KRW 168,384,000 (i.e., an intermediate payment of KRW 33,676,00 + an intermediate payment of KRW 45,708,00 + an intermediate payment of KRW 89,000 + the remainder payment of KRW 89,000). The Plaintiff paid the down payment of KRW 33,676,000 on the same day to the public-private partnership construction.

B. On June 21, 2005, the Samcheon Construction entered into a monetary loan contract with the Defendant to obtain a loan of KRW 2.5 billion from the name of the new construction fund, etc., and the Defendant entered into a mortgage loan contract with the Defendant to secure a loan obligation for Samcheon-dong Construction. In order to secure a loan obligation for Samcheon-dong Construction, the Defendant entered into a mortgage loan contract with the Defendant and completed the registration.

C. The Sammin General Construction comprehensively transferred all rights related to the development project of the apartment of this case to Sejong General Construction with the consent of the defendant on March 3, 2006, subject to the acceptance of loans and obligations against the defendant of Sammin General Construction in Sejong General Construction in March 3, 2006.

D. On August 26, 2005, the registration of ownership preservation was completed in the name of the third-party comprehensive construction due to the commission of the registration of provisional seizure on the apartment of this case (the omission of lakes and marshes).

E. When completing the registration of ownership transfer with respect to 188 households, including the apartment of this case (dong title omitted) in the Sejong integrated Construction, the seller of the apartment of this case agreed to protect the status of the buyer of the Jinsung who entered into the sales contract with respect to the apartment of this case prior to the conclusion of the said transfer contract. At the time, among the buyer of the apartment of this case, the purchaser of the apartment of this case was 4 persons including the plaintiff, and the Sejong General Construction was 100 million won in the name of the buyer of the apartment of this case and the fact that the purchaser of the apartment of this case received the sales price from the buyer of the apartment of this case under the pretext of the contract deposit, etc.

F. On March 9, 2006, Sejong General Construction agreed to obtain a loan of KRW 1.7 billion from the Defendant, and upon the Defendant’s request to secure this, concluded a mortgage agreement with the Defendant on March 8, 2006 with respect to 100 households, including the instant apartment (water omitted), including the maximum debt amount of KRW 3.6 billion. On March 9, 2006, on March 9, 2006, the collective mortgage agreement with the Defendant on the registration of the establishment of the neighboring apartment (hereinafter the instant apartment (water omitted) was completed to the Defendant on March 9, 2006, and the registration of the establishment of the neighboring apartment (hereinafter the “registration of the establishment of the neighboring apartment of this case”). However, in the collateral list prepared by Nonparty 2, who had been prior to the construction of Sejong General Construction at the time, the apartment of this case (water omitted) was not included.

G. On August 14, 2006, the Sejong General Construction concluded a sales contract under the name of the Plaintiff and Nonparty 1 with the same content as that of the above paragraph A, and the Plaintiff decided to substitute the payment of the down payment for the Sejong General Construction with the down payment already paid.

H. On August 14, 2006, the Plaintiff deposited KRW 50,000,000 from the intermediate payment into the account in the name of Sejong General Construction on the basis of the request of Sejong General Construction. On February 16, 2007, the Plaintiff paid KRW 15,00,000 out of the balance to Nonparty 3, who was the former director of Sejong General Construction, and on March 26, 2007, paid the remainder of KRW 70,000,000 from the remainder to Nonparty 4, the representative director of Sejong General Construction, and used most of the sales proceeds received from the Plaintiff as the construction proceeds.

I. The approval date of the invitation of occupants of the apartment of this case was April 7, 2003, and the scheduled date of the approval date was May 28, 2007. However, on February 16, 2007, the Plaintiff completed the registration of transfer of ownership under Nonparty 1’s name under the receipt of Scheon District Court’s private registry office as of February 16, 2007.

(j) On November 5, 2008, the Defendant applied for a voluntary auction on the apartment of this case (the apartment of this case omitted) by Jinwon District Court, Jinwon Branch, Seoul District Court, 2008, 15246, and accordingly, the auction procedure was conducted on January 29, 2010 and sold to Nonparty 1, the owner of this case. The appraisal price of the apartment of this case (the apartment of this case omitted) was KRW 140,00,000, and the price sold to Nonparty 1 was KRW 123,450,000.

[Basis] Evidence Nos. 1 through 4, evidence Nos. 5-2, 10-3, 6, 7, 11, 12, 13-1, 2, 14-1 through 3, 15, 16-1 through 3, 16-3, 17 through 19, witness Non-party 3, 5, and 4-2, and the purport of the whole pleadings

3. The judgment of this Court

(a) Occurrence of liability for damages;

(1) As to the assertion that the registration of creation of a neighboring mortgage of the instant case was null and void in violation of Article 40(1)2 of the Housing Act

(A) Even if a housing supplier provided the pertinent housing or housing site as security or disposed of in violation of Article 32-3(1) of the former Housing Construction Promotion Act (wholly amended by Act No. 6916 of May 29, 2003), the validity of the pertinent housing or housing site shall not be deemed to be denied even if the pertinent housing or housing site was disposed of as security or in violation of Article 32-3(1) of the same Housing Construction Promotion Act (wholly amended by Act No. 6916 of May 29, 2003). However, only if the supplementary registration under Article 32-3(3) has been completed, the validity of the pertinent housing or housing site becomes null and void pursuant to Article 32-3(4) of the same Housing Construction Promotion Act (see Supreme Court Decision 2003Da

(B) In light of the above legal principles, there is no dispute between the parties that the additional registration under Article 40(3) of the Housing Act was not completed before the registration of establishment of a mortgage in the Defendant’s name was completed on the instant apartment (the apartment). Thus, the Plaintiff’s assertion that the completion of the instant mortgage contract and the establishment of a mortgage pursuant to the instant mandatory provision under the premise that it is a mandatory provision under Article 40(1) of the Housing Act is null and void is without merit.

(2) As to the Defendant’s assertion that the instant right to collateral security was exercised in violation of the agreement to protect the Plaintiff, who is the purchaser of the instant apartment (hereinafter “instant right to collateral security”) after setting up the instant right to collateral security with no additional registration on the instant apartment (hereinafter “instant apartment”).

(A) The supplementary registration under Article 40(3) of the Housing Act may be made only upon the application of the project undertaker (see, e.g., “the guidelines for the supplementary registration of prohibited matters under Article 40(3) of the Housing Act” under Article 1101 of the registered rules at the time of the registration of the establishment of a neighboring mortgage in the instant case, see, e.g., the current registered rules). If a project undertaker, in collusion with a creditor, delays an application for the supplementary registration with intent to cause a seizure or creation of mortgage, etc. to a general creditor among them, this would be in violation of the principle of good faith or the concept of justice, and thus, would be contrary to the principle of trust and good faith

(B) The following circumstances, which are acknowledged by comprehensively taking account of the evidence as revealed in the facts and foundation of the instant apartment, (1) the Defendant was actively involved in the instant apartment development project, including the sales contract of the instant apartment, for the reason that Sejong comprehensive Construction was dispatched to the site during the process of the instant apartment development project and was continuously reported from the Sejong Comprehensive Construction; (3) the Defendant was in a situation where it was difficult for the Plaintiff to continuously implement the instant apartment development project because it did not obtain any additional loan without the Defendant’s help; and (2) the Defendant was aware of, or could have known, the fact that the purchaser of the instant apartment was already aware of or was able to be aware of, the fact that it had been using the construction project of the instant apartment; and (4) the Defendant continued to establish the instant apartment complex under the name of the Plaintiff to purchase the instant apartment complex under the name of Sejong Comprehensive Construction before the completion of the additional registration under Article 40(3) of the Housing Act, and thus, was not obliged to establish the instant apartment complex under the name of the Plaintiff at the time of the instant construction and the instant apartment complex.

(b) Scope of damages;

Furthermore, with respect to the scope of compensation for damages, since the damage suffered by the plaintiff due to the execution of the right to collateral security on the apartment (water omitted) of the defendant's apartment (water omitted), is caused by the sale of the apartment (water omitted) of this case at the auction procedure, the value at the time of sale is not the sale price but the sale price at the auction procedure (Evidence A No. 140,000). However, the plaintiff purchased the apartment (water omitted) of this case at the auction procedure at KRW 123,450,00,00 (Evidence A) and gained profits equivalent to the difference between the price at the time of sale and the actual purchase price at the time of sale (Evidence No. 19). Accordingly, in the principle of offsetting profit and loss, the plaintiff's actual damage is limited to KRW 123,450,000,000,

C. Sub-committee

Therefore, the defendant is obligated to pay to the plaintiff 123,450,000 won for the purchase price of the apartment of this case (hereinafter the apartment of this case omitted) and damages for delay calculated at the rate of 5% per annum under the Civil Act from July 10, 2010 to February 2, 2012, which is the day following the delivery date of a copy of the complaint of this case sought by the plaintiff, which is the day after the payment date of the above sale price, to the plaintiff, for the damages for delay calculated at the rate of 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment.

4. Conclusion

Therefore, the plaintiff's claim is reasonable within the scope of the above recognition and it is so decided as per Disposition by the assent of all participating Justices.

Judges Noh Sung-sik (Presiding Justice)