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(영문) 서울고법 1985. 2. 19. 선고 84나3518 제4민사부판결 : 확정
[명의변경절차이행청구사건][하집1985(1),120]
Main Issues

The validity of the so-called contract for sale of housing lots

Summary of Judgment

In the implementation of a housing site development project, the Korea Land Development Corporation grants the right to preferentially purchase part of the housing site to be developed by the company in the housing site development project zone in addition to the compensation for removal of the housing site, and prohibits the transfer of the right to purchase the housing site, even though the said right is prohibited by the above reasons, the contract for the transfer of the right to purchase the housing site shall not be null and void because it is the original impossibility of the performance.

[Reference Provisions]

Article 103 of the Civil Act

Plaintiff, Appellant

Man-Jiner

Defendant, appellant and appellant

Egical Sea

The first instance

Seoul District Court's East Branch (84 Gohap144)

Text

The defendant's appeal is dismissed.

Expenses for appeal shall be borne by the defendant.

Purport of claim

On October 5, 1983, the defendant will implement the procedure for changing the name of the buyer on the sales contract concluded between the non-party Korea Land Development Corporation and the non-party Korea Land Development Corporation for the real estate recorded in the attached list to the plaintiff.

Judgment that the lawsuit costs shall be borne by the defendant

Purport of appeal

The plaintiff's claim is dismissed.

All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.

Reasons

In light of Gap evidence Nos. 1 (Sales Certificate), Gap evidence Nos. 2 (Certificate of Seal Imprint), Eul evidence Nos. 5 (Contract for Occupancy in Land), Eul evidence Nos. 2 (Contract for Sale in Housing Complex), Gap evidence Nos. 4 (Contract for Sale in Housing Complex), and the purport of the testimony and pleading of the court below's testimony No. 159 (Contract for Sale in Housing Site), the defendant purchased the above real estate from the above defendant No. 10 to the above defendant No. 80 before sale in lots on the above 9-5 of Gangdong-gu, Seoul, 1982, and the defendant purchased the above real estate from the above non-party No. 1 to the non-party No. 2, the above defendant purchased the above defendant No. 1 to the non-party No. 5 (Contract for Sale in Housing Site), and changed the above right to purchase the housing site to the non-party No. 1 to the above 90-party No. 2, the above right to purchase the housing site from the above defendant No. 1 to the above 250-party No.

Since the defendant's right to sell the above housing site is prohibited from transferring according to the government policy, it is alleged that the contract for the transfer of the right to sell the housing site between the defendant and the non-party beneficiary is null and void because it is originally impossible to carry out the contract, but the above defendant's argument alone cannot be deemed null and void because the contract for the transfer of the right to sell the

In addition, the defendant, after concluding the above sales contract between the above non-party Corporation and the above non-party Corporation, paid 9,225,070 won to the above non-party Corporation as the sale price. Thus, the defendant cannot respond to the plaintiff's claim until the plaintiff receives the sale price equivalent to the above sale price. Thus, in full view of the above Eul's statement No. 2, and the testimony and arguments of the non-party Kim Jong-seok, the defendant can recognize the fact that the above non-party Corporation purchased real estate listed in the attached list from the above non-party Corporation and paid 9,25,070 won. However, in full view of the above facts, the plaintiff's statement No. 6, and the original purport of the testimony and arguments of the court below's witness Kim Jong-Un, the court below's testimony and arguments as to Sep. 17, 1982, the plaintiff paid 1,000,000 won to the defendant as part of the above sale price, and the remaining 8,225,070 won is rejected.34.

Therefore, the defendant is obligated to perform the procedure for change of the name of the buyer on October 5, 1983 between the non-party Korea Land Development Corporation and the non-party Korea Land Development Corporation as to the real estate stated in the attached list. Thus, the plaintiff's claim of this case seeking the fulfillment of the obligation is justified. The judgment below is just and the defendant's appeal is without merit, and the appeal is dismissed. The appeal cost is assessed as per Disposition with the defendant who is the losing party.

Judges Cho Gyeong-sung (Presiding Judge)

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