[1] Whether a “consultation” can be performed through the conciliation procedure in the course of a lawsuit regarding the exercise of the right to demand sale as a requirement for the exercise of the right to demand sale under Article 18-2 of the Housing Act (affirmative)

[2] In a case where Company A filed a lawsuit against Company B to exercise the right to demand sale under Article 18-2 of the Housing Act, and the date of adjustment was conducted based on the market price appraisal result of the land during the first instance trial, but no agreement was concluded, and the judgment in favor of the Plaintiff was rendered while Company B did not appear at the mediation date, etc., the case holding that the court below erred by misapprehending the legal principles in holding otherwise, although Company A could be deemed to have held specific and substantial consultation for not less than three months from the date of the first instance mediation date, and thus, Company A sent a content-certified mail to the effect that Company

[1] Articles 16(4)1 and 18-2(1) of the Housing Act, Article 288 of the Civil Procedure Act / [2] Articles 16(4)1 and 18-2(1) of the Housing Act

[1] Supreme Court Decision 2010Da97068 Decided November 10, 201, Supreme Court Decision 2011Da101315, 101322 Decided May 9, 2013 (Gong2013Sang, 1015)

Han Forestry Construction Co., Ltd. (Korea National Forestry Corporation, Attorneys Lee Tae-woo, Counsel for defendant-appellant)

BlabC Co., Ltd

Defendant 2

Busan District Court Decision 2012Na20236 Decided November 15, 2013

The part of the judgment of the court below against Defendant 2 is reversed, and that part of the case is remanded to Busan District Court Panel Division. The appeal by Defendant two L&C is dismissed. The costs of appeal by Defendant two L&C Co., Ltd are assessed against the above Defendant.

1. The plaintiff's grounds of appeal are examined.

A. Article 18-2(1) of the Housing Act provides that “A project operator who has obtained approval of a project plan pursuant to Article 16(4)1 may file a claim with the owner of a site that has not been secured a right to use (including buildings) among the relevant housing construction sites, to sell the site at the market price. In such cases, a consultation shall be held with the owner of the site subject to a claim for sale for sale for at least three months before filing a claim for sale.” Since consultation does not impose any restriction on the method or time limit of consultation, such consultation shall not be held even after filing a lawsuit for the exercise of a claim for sale (see, e.g., Supreme Court Decision 2010Da97068, Nov. 10, 201). Since litigation procedures are inside and outside the relevant housing construction site, such consultation may also be conducted through conciliation procedures conducted in the course of litigation.

In addition, the aforementioned “consultation” refers to a specific and substantial consultation, and when determining whether the said consultation requirements are met, the following circumstances should be comprehensively taken into account: (a) whether the project undertaker who obtained approval for the housing construction project plan presents a sale price or a reasonable ground for its calculation; (b) whether the project undertaker has made efforts to proceed with the consultation; and (c) the housing site owner has given an attitude to the consultation; and (d) the burden of proving the fulfillment of the requirements is borne by the project undertaker (see Supreme Court Decision 2011Da101315, 10132, May 9, 20

B. First, we examine the claim for the performance of the procedure for ownership transfer registration based on sale on January 6, 201.

After finding facts as indicated in its reasoning, the lower court rejected the Plaintiff’s claim for the performance of the procedure for the transfer registration of ownership against Defendant 2, on the ground that there is no evidence to acknowledge that the content-certified mail as of January 6, 201, which included the Plaintiff’s declaration of intent to exercise the Plaintiff’s claim for sale, reached Defendant 2

In light of the relevant legal principles and records, the above determination by the court below is reasonable, and there is no error of law such as misunderstanding of legal principles as to consultation, misunderstanding of facts, or incomplete deliberation as the exercise requirement of sale claim under Article 18-2 of the Housing Act

C. Next, we examine the claim for the performance of the procedure for ownership transfer registration based on the sale on September 11, 2013.

After finding the facts as stated in its reasoning, the lower court determined that the Plaintiff cannot be deemed to have completed the consultation prescribed in Article 18-2 (1) of the Housing Act for exercising the right to demand sale against Defendant 2, on the grounds that it is difficult to deem that the content of the content-certified mail alone was a project undertaker, and it cannot be deemed that the Plaintiff had completed the consultation with Defendant 2 as stipulated in Article 18-2 (1) of the Housing Act for exercising the right to demand sale, on the following grounds: (a) although the Plaintiff is deemed to have dispatched the content-certified mail as of September 11, 2013 to Defendant 2, the said mail does not provide reasonable grounds for

However, in light of the above legal principles, it is difficult to accept the judgment of the court below for the following reasons.

According to the records, ① the Plaintiff’s agent was present on August 25, 201, when the first instance court was in progress, on the date for pleading, and the result of appraisal arrived at the first instance court on September 16, 201, ② the date for conciliation was in progress on December 15, 201 and January 12, 2012, and April 19, 2012; ③ Defendant 2 was present at the Plaintiff’s agent and Defendant 2 on April 19, 2012, but did not reach an agreement three consecutive times on August 21, 2012, and Defendant 2 was present on the date for pleading at the first instance court and on September 25, 2012, and the argument was concluded on September 25, 2012, and was sentenced by the first instance court on September 25, 2012 to the Plaintiff’s claim to purchase the land at the first instance court on the date for conciliation and consultation between the Defendant 2 and the first instance court on January 21, 2013 or more.

First of all, it is clear that the price of the instant land assessed through the market price appraisal of the first instance court is a material that has a reasonable ground for calculating the sale price. According to the above facts, the Plaintiff, at the latest from the date of the first instance conciliation on December 15, 201, endeavoring to consult with Defendant 2 based on the market price appraisal result, but there is considerable room to deem that Defendant 2 did not attend the subsequent conciliation date or the date of pleading, thereby failing to reach an adequate consultation. In other words, the Plaintiff may be deemed to have held a specific and substantial consultation for at least three months from December 15, 201.

Nevertheless, the lower court rejected the Plaintiff’s claim as to this part solely on the grounds as seen earlier with excessive efforts by the Plaintiff on the date of conciliation based on the market price appraisal conducted in the first instance trial. In so doing, the lower court erred by misapprehending the legal doctrine on the consultation or by failing to exhaust all necessary deliberations, which is the requirement for exercising the right to demand sale under Article 18-2 of the Housing Act.

2. Defendant Two L&C did not submit a statement of the grounds of appeal within the submission period, and the grounds of appeal are not indicated in the petition of appeal.

3. Therefore, the part of the judgment of the court below against Defendant 2 is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The appeal by Defendant BDC is dismissed, and the cost of appeal by Defendant BDC is assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)