[1] Whether the provisions of relevant laws such as the former Rental Housing Act on the basis for calculating pre-sale conversion conversion price are mandatory (affirmative), and the validity of the pre-sale contract concluded based on the pre-sale conversion price exceeding the amount under the standard for calculation under the said provisions (i.e

[2] In a case where a part of a juristic act is deemed null and void because it is in violation of the validity clause, which is a mandatory law, the standard for determining whether the invalidity of that part affects the remaining part, and in a case where it is proved that an expression of intent by one of the parties is null and void, the standard for determining whether the agreement between the other parties

[3] In a civil procedure, whether the court may determine ex officio without being bound by a party’s assertion in a case where an opinion on the interpretation or application of a law is not simply expressed, but rather than an assertion on the scope of the application of the principle of pleading and the fact that constitutes the requirement that

[1] Article 1 (see Article 1 of the Special Act on Private Rental Housing and Article 1 of the current Special Act on Public Housing) and Article 21 (see Article 50-3 of the current Special Act on Public Housing) of the former Rental Housing (wholly amended by Act No. 13499, Aug. 28, 2015) / [2] Article 137 of the Civil Act / [3] Article 203 of the Civil Procedure Act

[1] Supreme Court en banc Decision 2009Da97079 Decided April 21, 201 (Gong2011Sang, 993) / [2] Supreme Court Decision 2009Da41465 Decided March 25, 2010 (Gong2010Sang, 795) Supreme Court Decision 201Da9068 Decided April 26, 2013 (Gong2013Sang, 918) / [3] Supreme Court Decision 2016Da258124 Decided March 22, 2017 (Gong2017Sang, 844)

Seoul High Court Decision 200Na1448 delivered on May 1, 200

Defendant in bankruptcy trustee of Pyeongtaek-si Corporation

Seoul High Court Decision 2014Na35206 decided June 18, 2015

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. Regarding ground of appeal No. 1

Relevant statutes, such as the former Rental Housing Act (wholly amended by Act No. 13499, Aug. 28, 2015; hereinafter “former Rental Housing Act”), aim at facilitating the construction of rental housing and ensuring the stability of national housing life, and impose certain restrictions on rental business operators along with various support to achieve the purpose. In particular, by providing for the detailed criteria for calculating pre-sale conversion conversion price after the expiration of the mandatory rental period, the Rental Business operator voluntarily determines the pre-sale conversion price of rental housing to the lessee without any house and the reasonable pre-sale conversion price should be prevented. The provisions of the former Rental Housing Act and other relevant statutes on the criteria for calculating pre-sale conversion conversion price constitute mandatory regulations, and are invalid to the extent that the pre-sale agreement concluded with the pre-sale conversion price exceeding the amount set forth in the relevant regulations is invalid (see, e.g., Supreme Court en banc Decision 2009Da97079, Apr. 21, 2011).

The lower court determined to the effect that the sales contract concluded between the Defendant and lessee based on the instant agreement for conversion for sale was concluded at the price in violation of the pre-sale conversion standard set forth in the former Rental Housing Act, and that the agreement was not unfavorable to lessees, and thus, the agreement for conversion for sale in lots should be deemed null and void within the extent exceeding the amount set forth

In light of the aforementioned legal principles and records, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine regarding the legislative intent of mandatory provisions under the former Rental Housing Act regarding the criteria for calculating pre-sale conversion price, or by exceeding the bounds

2. Regarding ground of appeal No. 2

A. In cases where a part of a juristic act becomes null and void because it is in violation of the validity provision, which is a mandatory law, when determining whether the partial invalidation affects the validity and invalidation of the remaining parts, the determination shall govern if the individual law has any provision on the validity of partial invalidation, and if there is no such provision, in principle, the whole invalidation of the juristic act shall be in accordance with the main sentence of Article 137 of the Civil Act. However, in cases where it is deemed that if the parties had known of such invalidation, even if there was no provision on the validity of partial invalidation, the remaining part of the juristic act shall remain effective in accordance with the proviso to the same Article. In such cases, the parties’ intent refers to the assumptive effect intent if they had known that a part of the juristic act was null and void at the time of the juristic act (see Supreme Court Decision 2011Da9068, Apr. 26,

In addition, in a case where a certain agreement is reached between multiple parties, such agreement shall be in entirety and in entirety. Accordingly, in a case where it is proved that an expression of intent by either party is null and void, whether an agreement between the remaining parties is valid shall be determined by whether the parties are deemed to have engaged in a juristic act even if there is no invalid portion (see Supreme Court Decision 2009Da41465, Mar. 25, 2010).

B. The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following.

(1) Pyeongtaek Chang-gu Co., Ltd. (hereinafter referred to as “Seoul-gu Co., Ltd.”) constructed, with the National Housing Fund’s support, the first apartment of the 746 households in Ulsan-gu, Ulsan-gu, the first apartment of the 1,579 households, the second apartment of the 1,579 households in the ordinary Chang-gu, the second apartment of the 1,579 households in the ordinary Chang-gu, and the third apartment of the 827 households in the ordinary Chang-gu (hereinafter collectively referred to as “the apartment of this case”).

(2) The term of the lease contract of this case was set at five years as a rental business operator, and the term of the lease contract of this case was commenced. At the time of the tenant recruitment announcement, the term “the terms and conditions of the sale conversion” included the fixed date stipulated in Article 3(1) of the Housing Lease Protection Act after entering into a lease contract of the lessee, and the right to preferential payment of the deposit exists.”

(3) In order to manage and preserve the ownership of the instant apartment until the completion of the sale for sale in lots, Pyeongtaek-si entered into a real estate management trust agreement (hereinafter “instant trust agreement”) with the Korea Land Trust Co., Ltd. (hereinafter “Korea Land Trust”) and completed the registration of trust and the registration of transfer of ownership on the instant apartment in the name of Korea Land Trust.

According to the trust contract of this case, ① the beneficiary is an ordinary land, ② the trust principal is the apartment of this case, the lease deposit in the custody of the company, the property acquired by subrogation of the trust real estate, and other equivalent matters. ③ The trust period is from the date when the trust contract is concluded to the date when the conversion for sale in lots is completed. ④ When the trust contract is terminated, the beneficiary can apply for the registration of transfer of ownership and cancellation of the trust registration, etc. to the trustee.

(4) After that, in order to secure the obligation of both the Plaintiff and the co-Plaintiffs of the lower court (hereinafter collectively referred to as the “Plaintiffs, etc.”), the right to benefit of the instant trust was established, and the Korea Land Trust accepted the right.

(5) He was declared bankrupt on April 25, 2008, and the council of lessees' representatives of the apartment of this case obtained approval for conversion for sale in lots directly from the head of Ulsanbuk-do on July 4, 2008 pursuant to the provisions of the Rental Housing Act newly amended by Act No. 8966 of March 21, 2008.

(6) On January 21, 2010, the Defendant, Korea’s land trust, Plaintiff, etc., a trustee in bankruptcy, entered into an agreement on the conversion of each of the instant apartment units into between the council of lessees’ representatives into between the council of lessees’ representatives and the council of lessees’ representatives, on April 8, 2010, and between the council of lessees’ representatives and the council of lessees’ representatives, on April 14, 2010, and each of the instant apartment units (hereinafter “instant conversion agreement”). The main contents are as follows.

(1) A lessee shall make a conversion into sale on the apartment of this case on the condition that he/she pays the so-called “additional contributions” in addition to the pre-sale conversion price approved by the lessee: Provided, That only the amount calculated by deducting loans from the National Housing Fund and lease deposit from the pre-sale conversion price shall

(2) The defendant shall repay tax claims, etc. with some of the money deposited into the account of deposit in the bankrupt estate, and pay the remainder to the plaintiff, etc. in proportion to the amount of the secured debt.

(7) At the time of the instant agreement for conversion to sale in lots, there was a difference between the parties as to whether the proceeds from sale in lots from sale in lots are included in trust proceeds, but the instant agreement for conversion to sale in lots was concluded for the purpose of arranging legal relations among the parties concerned (Article 1(3) of the said agreement).

C. We examine these facts in light of the legal principles as seen earlier.

(1) The instant agreement for conversion for sale in lots was concluded for the purpose of arranging the legal relationship between the parties to the instant apartment for sale in lots. As such, the Defendant’s major view is to pay part of the money deposited from the lessee to the Plaintiff, etc. out of the money deposited in the bankrupt estate deposit account, the entire form of unity is to be paid.

(2) A lessee, after having been declared bankrupt, is liable for the payment of the purchase-price to the Defendant according to the instant agreement for sale in lots. On the other hand, a lessee’s claim for the repayment of the lease deposit against the Defendant constitutes a claim arising under a lease agreement prior to the declaration of bankruptcy regarding the right to lease in lots. Therefore, even if a lessee’s claim for the repayment of the lease deposit against the Defendant is prohibited from deducting the claim for the repayment of the lease deposit from the lessee’s claim for the payment in lots, and even if the lessee and the Defendant agreed to deduct the lease deposit with the Defendant, it is not effective against Article 422 subparag. 1 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Bankruptcy Act”), which is a mandatory law. However, a lessee who meets the requirements for counterclaim and the fixed-date under the Housing Lease Protection Act may be satisfied without going through bankruptcy proceedings within the scope of the right to preferential reimbursement recognized under Article 415(1) of the Debtor Rehabilitation Act. In addition, given that such tenant is in a position equivalent to the right to separate settlement in bankruptcy proceedings, it is possible for the Defendant’s claim for redemption of the lease deposit.

In full view of the foregoing circumstances, the part exceeding the approved conversion price among the instant agreement for sale in lots is null and void, and it is difficult to conclude that the portion of the lessee’s obligation to deduct the amount of deposit for lease deposit from the payment obligation of the purchase in lots is null and void, even if the lessee and the Defendant knew at the time of the instant agreement for sale in lots, the agreement on sale in lots in lots in this case was not concluded. Therefore, the agreement between the Defendant and lessee

(3) However, in addition to the following circumstances, the agreement between the Defendant and the Plaintiff, etc. among the instant agreement on conversion for sale in lots, the entire agreement shall be deemed null and void.

(A) The Plaintiff et al., as the holder of the right to separate settlement, may exercise the right to separate settlement without resorting to bankruptcy procedures. However, if the full amount of claims cannot be repaid by the exercise of the right to separate settlement, it may participate in bankruptcy procedures and receive dividends as bankruptcy creditors

(B) A lessee who has met the requirements for counterclaim and the fixed date under the Housing Lease Protection Act has the right to be preferentially reimbursed the lease deposit from the proceeds from the sale of a rental house (including the site; hereinafter the same shall apply). Therefore, even if an agreement that deducts the amount of the lease deposit returned from the lessee’s obligation to pay the sale price is null and void due to a violation of Article 422 subparag. 1 of the Debtor Rehabilitation Act, the Defendant, the trustee in bankruptcy, is obliged

(C) The Defendant’s agreement to pay part of the amount deposited into the deposit account of the bankrupt estate in proportion to the amount of the secured debt to the Plaintiff, etc. is premised on receiving the so-called “additional Contribution” from the lessee. However, as seen earlier, there is no validity of the part exceeding the pre-sale conversion price approved among the pre-sale conversion agreement of this case.

(D) If there are such circumstances, even though the Defendant, who is in the position of performing his duties with the care of a good manager for the common interest of all bankruptcy creditors, has invalid agreement between the Defendant and the lessee as above, it does not seem that the Defendant would have intended to assist in the recovery of the secured claim by the Plaintiff, etc., the holder of the right to separate settlement, by concluding the instant conversion agreement with the Plaintiff,

D. Although there are some inappropriate parts at the time of the lower court’s explanation, the lower court rejected the Plaintiff’s assertion by deeming that the Defendant was not obligated to pay the Plaintiff et al. the amount of money by the agreement on conversion for sale in lots. In so doing, the lower court did not err by misapprehending the legal doctrine regarding partial invalidation of a juristic act, or by exceeding the bounds of the principle of free evaluation

3. Regarding ground of appeal No. 3

In civil litigation proceedings, the principle of pleading applies to the assertion and certification of major facts that are the requirements for judgment of legal effect, such as the occurrence, modification, and extinguishment of rights. However, in cases where it is not an assertion of facts that constitute the elements of legal effect such as the occurrence, modification, or extinguishment of rights, but merely expresses an opinion on the interpretation or application of laws, the principle of pleading does not apply, and thus, the court may ex officio determine ex officio without being bound by the parties’ assertion (see Supreme Court Decision 2016Da258124, Mar. 22, 201

Therefore, we cannot accept the allegation in the grounds of appeal purporting that the court below violated the principle of pleading by deeming that the agreement on conversion for sale in lots with the plaintiff et al. was null and void, even though the defendant merely asserted that the remaining part of the agreement on conversion for sale in lots was null and void,

4. Conclusion

Therefore, the appeal is 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 Jo Hee-de (Presiding Justice)