Han Asset Trust Co., Ltd. (Law Firm Sejong, Attorneys Ansan-do et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Barun, Attorneys Park Ho-ho et al., Counsel for defendant-appellant)

January 25, 2017

Suwon District Court Decision 2015Gahap202878 Decided August 11, 2016

1. The judgment of the court of first instance is modified as follows.

A. The Plaintiff made a deposit as shown in Attachment 1, and paid KRW 1,584,797,480 to the Defendant, simultaneously with the Defendant’s payment, as follows:

1) On May 14, 2015, the procedures for the registration of ownership transfer for sale on the real estate listed in attached Form 2 shall be implemented;

2) India of the real estate listed in Appendix 2.

B. The plaintiff's remaining claims are dismissed.

2. Of the total litigation costs, 30% is borne by the Plaintiff, and the remainder 70% is borne by the Defendant, respectively.

3. Paragraph 1-A. (2) may be provisionally executed.

1. Purport of claim

Upon receiving KRW 1,584,797,480 from the Plaintiff, the Defendant shall carry out the procedure for the registration of ownership transfer for the real estate indicated in attached Form 2 to the Plaintiff on the date of delivery of a copy of the complaint of this case, and deliver the said real estate.

2. Purport of appeal

A. The plaintiff

The judgment of the first instance court is modified as follows. It is so decided as per Disposition 1-A.

B. Defendant

The part of the judgment of the first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to the revocation shall be dismissed.

1. Basic facts

A. Acquisition of a business plan for a plaintiff's housing construction project

1) On September 5, 2008, the Governor of the Gyeonggi-do decided an urban management plan for 03 through 7 districts (hereinafter “instant district unit planning plan”) including 34,09 square meters (17,778 square meters, c12 block: 16,321 square meters), such as ○○-dong, Gwangju-si (1 omitted), etc. (hereinafter “instant district unit planning plan”). On the same day, the Governor of the Gyeonggi-do publicly announced the plan under Article 2008-283 of the Gyeonggi-do Public Notice (hereinafter “instant first public notice”).

Public Notice 1. Gwangju (○○○, 4, 5, 6, and 7 District) Urban Management Planning (No. 1 district unit planning zone, alteration of specific-use area, and Class-I district unit planning) (No. 30 and Article 25 (5) of the Enforcement Decree of the National Land Planning and Utilization Act shall be determined as follows pursuant to the provisions of Article 30 of the National Land Planning and Utilization Act and Article 25 (2) of the Enforcement Decree of the same Act, and the topographic drawings shall be publicly announced pursuant to the provisions of Article 8 (2) of the Framework Act on the Regulation of Land Use, which are included in the main sentence of the attached Table. 2.

2) After that, the 007 district C11 block has been changed to 17,450 square meters, and the lot size of C12 block has been 15,983 square meters. The Plaintiff filed an application for approval of a project plan with respect to a housing construction project (hereinafter “instant project”). On December 3, 2014, the Plaintiff filed an application for approval of a project plan with the Plaintiff from the Gwangju City Mayor for a housing construction project (hereinafter “instant project plan”) to combine the modified C11 block and C12 block with C1, and expand the lot size of C11 block into 34,493 square meters, and to construct apartment houses and ancillary welfare facilities on that part.

3) At the time of the approval of the instant project plan, the determination of the urban management plan (hereinafter “decision of the instant urban management plan”) was deemed to have been made to modify a district unit plan by combining 007 district C12 block with C1 block pursuant to Article 17(1)5 of the former Housing Act (amended by Act No. 14344, Dec. 2, 2016; hereinafter “former Housing Act”). As such, the Gwangju City announced the relevant topographical map under Article 2014-236 of the Public Notice of Gwangju City (hereinafter “instant Notice”) on December 17, 2014.

1. Public notification of the topographical map of the ○○7 Zone (C11 block) announced in Gwangju City, which is included in the main text, in accordance with the provisions of Article 30 of the National Land Planning and Utilization Act and Article 8 of the Framework Act on the Regulation of Land Use, in relation to the housing construction project plan for the ○7 Zone (C11 block) implemented in the assets trust, which is located in the Special Metropolitan City ○○-dong, Gwangju-dong, and 14 lots of land (C11 block), which is the public notification of the approval of the housing construction plan under Article 204-230 of the Public notification in Gwangju City, in accordance with the provisions of Article 17 of the Housing Act, shall be published, and the topographic map shall be approved and announced in accordance with the provisions of Article 32 of the National Land Planning and Utilization Act and Article 2 of the Land Planning and Utilization Regulation Act.2.

B. Acquisition of the Defendant’s land ownership

1) The Defendant completed the registration of ownership transfer on May 7, 2002 with respect to 3,580 square meters in Gwangju-si, Gwangju-si (number 2 omitted), ○○-dong, Gwangju-si (number 2 omitted), and the land was divided into 959 square meters (number 3 omitted) and 2,621 square meters (number 2 omitted) on July 31, 2014.

2) After the division, 00 m2, 00 m2, 959 m2, Dong-dong (number 3 omitted) in Gwangju-si was incorporated into a road construction project site implemented in 006 m2, and 563 m2,621 m2 (number 2 omitted) after division is incorporated into a green area development project site implemented in 007 m2, and will be expropriated or used by the project implementer after the division.

C. Prior consultation on the instant real estate transaction

1) On January 28, 2015, the Plaintiff: (a) notified the Defendant that the part in the attached Table 2 (hereinafter “instant real estate”) out of the land owned by the Defendant in Gwangju Special Metropolitan City, ○○-dong (number 2 omitted) is subject to the exercise of the right to demand sale under the Housing Act; and (b) sent a certificate of content requesting a trade consultation on the instant real estate; and (c) sent a certificate of content to the Defendant around

2) On March 3, 2015 and March 30, 2015, the Plaintiff sent to the Defendant a certificate of content that the Plaintiff would exercise the right to demand sale under the Housing Act if the agreement is not reached. At that time, the Plaintiff’s content certification reached the Defendant.

3) On May 7, 2015, the Plaintiff filed the instant lawsuit against the Defendant to exercise the right to sell the instant real estate pursuant to Article 18-2(1) of the former Housing Act, and the duplicate of the complaint was served on the Defendant on May 14, 2015.

(d) Establishment of mortgage, etc.;

The instant real estate is subject to each of the instant collective security rights (hereinafter “each of the instant collective security rights”) and superficies (hereinafter “each of the instant collective security rights and superficies”) with the content as indicated in attached Table 1, as indicated in attached Table 1.

E. Relevant statutes

The provisions of the Housing Act, etc. related to this case are as shown in attached Form 4.

[Ground of recognition] The fact that there is no dispute, Gap's 1 through 9, 19, Eul's 1 through 4, 14 through 17, and the purport of the whole pleadings

2. Summary of the parties’ assertion

A. The plaintiff's assertion

1) After obtaining the approval of the instant project plan, the Plaintiff had consulted with the Defendant on the purchase of the instant real estate for not less than three months, but failed to reach an agreement, and exercised the right to demand sale pursuant to Article 18-2(1) of the former Housing Act against the Defendant by the instant lawsuit. Since a duplicate of the instant complaint containing the Plaintiff’s declaration of intent to demand sale reaches the Defendant on May 14, 2015, a sales contract was concluded between the Plaintiff and the Defendant on the same day based on the market price on the instant real estate. Accordingly, the Defendant is obligated to implement the procedures for ownership transfer registration and deliver the instant real estate to the Plaintiff on May 14, 2015.

2) As to the calculation of the sales price of the instant real estate, the result of the Nonparty’s appraisal on March 24, 2016 by the Nonparty on the first instance court appraiser on March 24, 2016 presented the status of completion of a housing construction project in accordance with the instant business plan. Therefore, it cannot be deemed an objective transaction price. Therefore, the sales price of the instant real estate should be calculated based on the result of the Nonparty’s appraisal on November

B. Defendant’s assertion

1) Since the approval of the instant project plan is null and void for the following reasons, the Plaintiff cannot exercise the right to demand sale under the Housing Act.

A) To obtain approval for a housing construction project plan, a licensee shall secure more than 80/100 of the relevant site area for the housing construction project in accordance with Article 16(4)1 of the former Housing Act. The Plaintiff failed to meet the aforementioned requirements as at the time of the approval for the instant project plan.

B) In determining the instant district unit plan, the Governor of the Gyeonggi-do only published a notice stating the topographic map in the first announcement, but did not actually publish the topographic map itself, and thus, the instant district unit plan decision did not take effect pursuant to Article 8(3) of the former Framework Act on the Regulation of Land Use or became null and void pursuant to Article 33(1) of the former National Land Planning and Utilization Act due to the failure to announce a topographic map. Therefore, the instant district unit plan is a disposition based on the instant district unit plan decision, the validity of which has not taken effect, and thus constitutes a disposition of invalidation per annum.

C) On December 3, 2014, the Gwangju City Mayor dealt with the instant urban management planning decision in accordance with Article 17(1)5 of the former Housing Act, and the effect of the instant urban management plan decision, which was deemed to be effective, is derived from the announcement in the Official Gazette of Gwangju City. Accordingly, the Gwangju City Mayor only published a notice that the topographical map is publicly announced in the Notice No. 2, but did not publish the topographic map itself by omitting the publication, and thus, the instant urban management plan decision was not effective. Accordingly, the instant project plan approval decision was made based on the decision on the instant urban management plan, which was not effective, and constitutes a disposition of invalidity per annum.

2) The determination of a district unit planning zone related to the instant project was deemed based on the instant project plan pursuant to Article 17(1)5 of the former Housing Act. As such, the date of announcement of the determination of a district unit planning zone related to the instant project ought to be based on December 17, 2014, which is the date of announcement of the approval of the instant project plan. Therefore, the instant real estate falls under the land that the Defendant acquired ownership before 10 years from the date of announcement of the determination of a district unit planning zone, and

3) Since the establishment of superficies has been registered in the name of Sung-nam Agricultural Cooperative on the instant real estate, the Defendant cannot perform the obligation to deliver the instant real estate to the Plaintiff.

4) Even if the Plaintiff is entitled to exercise the right to demand sale under the Housing Act, the Defendant is unable to comply with the Plaintiff’s claim for sale until the purchase price is paid from the Plaintiff. Moreover, in relation to the calculation of the purchase price of the instant real estate, the appraisal result of the Nonparty of the first instance appraiser on November 27, 2015 did not reflect development gains properly, and was erroneous in calculating the market price, such as selecting an inappropriate transaction case or unfairly assessing the street conditions of the instant real estate and the terms and conditions of land on March 24, 2016, on the basis of the appraisal result of the Nonparty on March 24, 2016.

3. Determination

A. Whether the plaintiff secured the right to use under the Housing Act

According to Gap evidence Nos. 1, 3, and 21, the total site area in the instant project area was 34,493 square meters on December 3, 2014, which was at the time of the approval of the instant project plan, and the plaintiff secured the right to use more than 91% of the site area in the instant project area by owning not less than 31,44 square meters in the instant project area. According to the above facts of recognition, the plaintiff appears to have secured the right to use more than 80/100 of the site area as at the time of the approval of the instant project plan. Thus, this part of the defendant's assertion is without merit

(b) Whether announcement of topographic drawings is omitted;

Article 8(2) of the former Framework Act on the Regulation of Land Use provides that where the head of a local government designates an area, district, etc., he/she shall prepare a drawing that specifies the area, district, etc. in the topographical map on which the land registration is indicated and publicly announce it in the official bulletin of the local government. Article 8(3) of the same Act provides that the designation of an area, district, etc. is effective by giving public notice of a topographical map, etc., and according to the respective descriptions of the evidence Nos. 2 and 4, the Gyeonggi-do Governor omitted the publication of a topographical map while giving public notice No. 1 of this case, and the fact that Gwangju City Mayor omitted the publication

However, in light of the results of the fact-finding by the court of first instance as to Gap's statements or images as to Gap's evidence Nos. 12, 22, 26 through 35, 40 through 42, and the fact-finding by the court of first instance as to Gwangju City, the Gyeonggi-do Governor and Gwangju City Mayor stated in the public notice that "the related books, such as topographical maps, are kept in the Gwangju Viewing Urban Planning and are shown to the general public" while making the first and second public notice. In fact, as described above, if the related books, such as geographical drawings, are kept in the Gwangju Viewing City Planning and the topographical map, such books could be perused by the urban planning and office if requested by the general public. Gwangju City did not make a public announcement of the general district unit plan or publicly notify a large-scale housing construction project that is deemed a large-scale housing construction project that is deemed a district unit plan, it is difficult to publish the wide area district unit planning zone in the Official Gazette. Therefore, even if it does not appear to have been contrary to the defendant's decision 2816.

C. Whether the sale is excluded from the exercise of the claim

According to Article 18-2 (1) 2 of the former Housing Act, a project proprietor who fails to secure usage rights for at least 95/100 of the area of a housing construction site may exercise a claim for sale against the owner, excluding those who have acquired ownership of the relevant housing site and continue to hold the relevant housing site ten years prior to the announcement date of the determination of a district unit planning zone among the owners of the housing construction site who failed to secure usage rights. In light of the interpretation of the above provision, it is reasonable to determine whether the subject of the claim for sale is excluded from the subject of exercise as of the announcement date of the determination of a district unit planning zone, and Article 17 (1) 5 of the former Housing Act provides that the decision of a district unit planning zone is deemed as the approval date of a project plan rather than the announcement date of the determination of a district unit planning zone. Accordingly, the defendant is not entitled to exercise the ownership transfer registration on the real estate of this case, which was the announcement date of the determination of the district unit planning zone. This part of the defendant's assertion is without merit.

D. Whether the defendant's obligation to deliver the real estate of this case is fulfilled

On the other hand, since a seller of a real estate sales contract bears a duty to transfer ownership without any limit or burden, barring any special circumstance, so if a superficies is established on a real estate for the purpose of sale, the seller is obligated to cancel the above registration and complete registration of transfer of ownership. Thus, just because the superficies is established on the real estate of this case, the defendant's duty to transfer the real estate of this case shall not be deemed to have been omitted (the superficies established on the real estate of this case is not the real profit but the right is created together with the right to collateral security for the preservation of the value of collateral) and the defendant, who is the seller, shall not refuse the delivery of the land on the ground that the defendant, who is the seller, shall cancel the above and deliver the complete registration of transfer of ownership. Therefore, this part of the defendant's assertion

(e) Defenses, etc. of the establishment of a sales contract and simultaneous performance;

1) Establishment of a sales contract

As seen earlier, the Plaintiff, a business entity which received the approval of the instant project plan, exercised the right to sell the instant real estate by delivering a copy of the instant complaint to the Defendant after undergoing prior consultation for three months. As such, the Plaintiff and the Defendant, as the date of delivery of a copy of the instant complaint between the Plaintiff and the Defendant, shall be deemed to have concluded a sales contract with respect to the instant real estate as the market price at the time of sale.

2) Defenses of simultaneous performance

Meanwhile, in a sales contract, the buyer’s obligation to pay the purchase price and the seller’s obligation to transfer ownership registration and to deliver the pertinent real estate simultaneously. Thus, the Defendant is obligated to receive the purchase price from the Plaintiff and, at the same time, implement the procedures for ownership transfer registration on the instant real estate as of May 14, 2015 and deliver the instant real estate to the Plaintiff.

(3) Calculation of the purchase price in relation to simultaneous implementation

A) Relevant legal principles

If a project operator exercises a right to demand sale against a landowner who has not acquired the right to use the land or a building under Article 18-2 of the former Housing Act, the sale contract is established based on the market price of the land or building at the time when the right to demand sale has been exercised, and the market price is the objective market price of the land or building at the time when the right to demand sale has been exercised, and the price of the land or a building is not the market price under the premise that the land or building is to be removed due to aging or the current status where the housing construction project has not been implemented, but the price of the land or building under the premise that the housing construction project is being implemented for the land or building (see Supreme Court Decision 2008Da21549, 2156, 21563, March 26, 2009, etc.).

Meanwhile, the appraiser's appraisal result shall be respected unless there exist significant errors, such as the appraisal method is against the rule of experience or unreasonable (see, e.g., Supreme Court Decisions 96Da1733, Feb. 11, 1997; 2009Da84608, 84615, 84622, 84639, Nov. 14, 1989); and if there are several appraisal results in the same matter, if one of them is recognized as a fact under any one of them, it shall be legitimate unless it violates the rule of experience or logical rules (see, e.g., Supreme Court Decisions 82Nu289, Jul. 26, 1983; 8Da12148, Nov. 14, 1989).

B) Each appraisal result

On November 27, 2015, the non-party to the first instance trial appraiser re-appraisals the market price of the instant real estate (hereinafter “the first appraisal”) on March 24, 2016 upon the defendant’s application for the correction of the appraisal (hereinafter “the second appraisal”). In light of the following facts, it is reasonable to calculate the market price of the instant real estate based on the results of the first appraisal in light of the following facts: (a) evidence Nos. 4, 14, and 17; (b) the result of the first instance court’s inquiry into the non-party to the appraiser, and the overall purport of the pleading; and (c) the market price of the instant real estate is KRW 2,346,120,000 based on the date of the sale of the instant real estate.

① At the time of the first appraisal, the Nonparty: (a) selected as a standard place of comparison (standard place for publicly announced land price) a unit of “○○○○-dong (number 4 omitted) to 22,90.5 square meters” under the premise that the real estate construction project is being operated on the instant real estate at the time of the first appraisal; (b) assessed the land price on the basis of the officially announced land price of the said land; (c) compared and analyzing the rate of land fluctuation, regional factors, individual factors, etc. from the basic date to the date of the price; and (d) employed the officially announced land price standard for comprehensively taking into account similar appraisal and transaction cases in neighboring areas due to other factors; and (e) assessed the market price as KRW 2,346,120,00 as of the sale date of the instant real estate at the time of the first instance court’s inquiry into the fact-finding report; and (e) assessed the development gains on the premise that the real benefits were not realized or embodied at the time of the price at the time of the first instance trial.”

② In the first appraisal, the Nonparty: (a) deemed that the instant real estate was located in width, structure, etc. than the comparative standard site; and (b) deemed that the instant real estate was located in the ground, geographical location, and maturity, etc. than the comparative standard site; and (c) accordingly, applied the gap rate of the terms and conditions of land to 0.65. In this regard, the Defendant asserted that, even if the location and form of the instant real estate were to be incorporated into another business, the price of the instant real estate should not be assessed as the heat on the ground of such circumstances, the Nonparty assessed the difference between the street conditions and the demarcated conditions of the instant real estate as above, in violation of the foregoing. Therefore, the instant real estate was divided as part of 3,580 square meters prior to the division into 0,000 square meters; (b) deemed that there was no error in the law regarding the Nonparty’s right to demand the appraisal of the instant real estate as part of the land to be sold to the owner of the instant land, and that there was no error in the Plaintiff’s right to demand the appraisal of the land.

③ The Defendant asserts that the apartment building volume ratio of the comparative standard site is 179.03%, and the apartment building volume ratio of the apartment to be constructed on the instant real estate is 199.59% higher than the comparative standard, but the Nonparty’s first appraisal that the administrative conditions of the instant real estate were equal to the comparative standard. However, the Nonparty’s first appraisal cannot be said to be remarkably erroneous, such as the Nonparty’s failure to comply with the empirical rule or rationality.

④ The Defendant asserted that the Nonparty did not properly reflect the development gains in the first appraisal, and, instead, did not constitute an apartment site near the instant real estate, the Nonparty selected a transaction case regarding “954 square meters out of 1,983 square meters in Gwangju-si, Gwangju-si, ○○○○ (number 5 omitted),” which is not a site near the instant real estate, and calculated the value of correcting the first appraisal and other factors as “1.300 square meters in preparation for the comparison standard with the said land.” Thus, the “1.300 square meters in correction for the first appraisal calculated by the Nonparty did not differ from the value of “1.370 square meters in correction for the second appraisal,” and there is insufficient ground to view that the development gains were not reflected in the results of the first appraisal or that there was a mistake in calculating the market value.

⑤ The Nonparty’s secondary appraisal is based on the premise that the instant real estate was used as a site for an apartment complex after the completion of a housing construction project for apartment houses and ancillary and welfare facilities according to the approval of the instant project plan, and that the instant real estate was used as a site for an apartment complex. A group of land adjoining the instant real estate is also used as a site for an apartment complex, and that the instant real estate was installed as infrastructure, such as roads, parks, green areas, etc. according to the instant district unit planning decision. However, even according to the aforementioned legal principles, reflecting “development gains” cannot be said to the purport that the development gains to be realized at a specific point in the future where the entire housing construction project is completed should be converted into the current value and included in the purchase price. However, even at the time of exercising the right to demand sale, it shall be deemed that the development gains generated and formed due to the implementation of the housing construction project should be calculated as the market price. From this point of view, it is inappropriate for the Nonparty’s second appraisal result to be used as a material to determine the purchase price of the instant real estate.

4) Refusal to pay and deposit a debt guaranteed by the right to collateral security;

Meanwhile, if a person asserts a right to the object of the sale and purchase and there is a concern that the purchaser may lose all or part of the right purchased by him to the extent of the risk (see Article 588 of the Civil Act). Therefore, the purchaser of the real estate on which the right to collateral security has been established may refuse payment of the purchase price equivalent to the amount of the secured obligation of the right to collateral security until the cancellation of the right to collateral security (see, e.g., Supreme Court Decision 87Meu1029, Sept. 27, 198). According to each of the facts found above and evidence Nos. 1 and 19, the total amount of the secured obligation of each of the instant right to collateral security can be recognized as KRW 761,322,520, and the plaintiff may refuse payment of the above amount from the purchase price until the cancellation of each of the instant right to collateral security.

Accordingly, according to Article 589 of the Civil Code, the defendant filed a claim for deposit of the amount equivalent to the secured debt amount of each of the instant secured claims. Thus, according to Article 589 of the Civil Code, if the purchaser refuses to pay part of the price in accordance with Article 588 of the Civil Code, the seller may claim the buyer to deposit the price. The plaintiff shall deposit the total amount of the secured debt amount on the condition of cancellation of each of the instant secured claims. The plaintiff's obligation of deposit and the defendant's obligation of transfer of ownership and delivery of the instant real estate are related to simultaneous performance.

F. Sub-committee

Therefore, the Plaintiff made a deposit as indicated in Attachment 1, and paid the remainder of the purchase price of KRW 1,584,797,480 (=2,346,120,000 - 761,322,520) to the Defendant. At the same time, the Defendant is obliged to carry out the procedure for ownership transfer registration for the instant real estate on May 14, 2015, which is the delivery date of a copy of the complaint of this case, and deliver the said real estate to the Plaintiff.

4. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claims are dismissed as there is no ground. Since the judgment of the court of first instance is partially unfair, the judgment of the court of first instance is modified as above, and it is so decided as per Disposition.

[Attachment Omission]

Judges Kim Jin-jin (Presiding Judge)

(1) The second appraisal also selected 22,90.5 square meters as a comparative standard place in Gwangju City ○○-dong (number 4 omitted).