[1] Judicial effect of a national housing resale contract concluded within the period of restriction on resale under the Housing Construction Promotion Act

[2] The meaning of the Supreme Court precedent that "the purchaser cannot oppose the seller to the seller of buildings in units due to the fact of the resale in relation to the legal validity of the resale restriction period in violation of the Housing Construction Promotion Act

[1] According to the former Housing Construction Promotion Act (amended by Act No. 4530 of Dec. 8, 1992), the act of resale of national housing is prohibited from being conducted for a certain period from the time of sale of national housing. However, this is not the fact that the purchaser cannot oppose the seller to the seller, and the validity of the resale contract between the parties to the resale should also be invalidated.

[2] In light of the fact that the provision of the former Housing Construction Promotion Act (amended by Act No. 4530 of Dec. 8, 1992) in itself allows resale in certain cases, rather than entirely denying the resale within the period of restriction on resale, and it is understood as a regulation provision of the same Act with regard to the legal effect of resale in violation of the period of restriction on resale under the Housing Construction Promotion Act, the legal effect of resale within the period of restriction on resale cannot be set up against the business entity within the period of restriction on resale conducted between the original buyer and the buyer only within the period of restriction on resale. Thus, even though the business entity did not cancel the contract or take the measures of redemption under Article 38-3 (3) of the same Act for this reason, it cannot be argued that the legal relationship with the business entity can not be asserted against the business entity until the period of restriction on resale expires, even if the act of resale was conducted within the period of restriction on resale.

[1] Article 38-3 of the former Housing Construction Promotion Act (amended by Act No. 5430 of Dec. 8, 1992), Article 37 (1) of the former Enforcement Decree of the Housing Construction Promotion Act (amended by Presidential Decree No. 14438 of Dec. 23, 1994) / [2] Article 38-3 of the former Housing Construction Promotion Act (amended by Act No. 5430 of Dec. 8, 1992), Article 37 (1) of the former Enforcement Decree of the Housing Construction Promotion Act (amended by Presidential Decree No. 14438 of Dec. 23, 1994)

[1] Supreme Court Decision 91Da21992 delivered on September 10, 1991 (Gong1991, 2531), Supreme Court Decision 91Da4454 delivered on February 25, 1992 (Gong1992, 1147), Supreme Court Decision 92Da11329 delivered on July 28, 1992 (Gong192, 2642), Supreme Court Decision 92Da39112 delivered on January 26, 1993 (Gong193, 858)

Plaintiff

Korea National Housing Corporation (Attorney Kim Jong-su, Counsel for defendant-appellant)

Suwon District Court Decision 95Na4831 delivered on September 13, 1995

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

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, on August 28, 1992, the court below held that the defendant sold the apartment of this case, a national housing, to the non-party co-defendant of the court of first instance, in gold KRW 51,484,00, the non-party sold the status of the apartment of this case to the plaintiff on October 20, 1993 in gold KRW 60,484,00, and the plaintiff was occupying the apartment of this case after paying the total purchase price to the defendant under the name of the non-party. Since the apartment of this case was resold in violation of the period of prohibition of resale under the Housing Construction Promotion Act or other relevant Acts and subordinate statutes, it cannot be asserted against the defendant with the right, and therefore, it rejected the plaintiff's claim that the non-party's claim of this case seeking the transfer registration procedure for the ownership of the apartment of this case is unjustifiable on its behalf

The apartment of this case is a national housing under the Housing Construction Promotion Act (hereinafter "the Housing Construction Promotion Act"), and Article 5 of the sales contract between the defendant and the non-party can not be resold within the period of restriction on resale under the related Acts and subordinate statutes, such as the Housing Construction Promotion Act, without the defendant's consent. Meanwhile, Article 38-3 (1) 1 of the Act and Article 37 (1) of the Enforcement Decree of the Act provide that with respect to the national housing, the status of being selected as the occupant of the relevant housing or the housing can not be resold for a certain period from the date of occupancy determined by the project operator. The scheduled date of occupancy of the apartment of this case was designated from November 1, 1994 to November 30 of the same

Therefore, it is clear that the non-party resells the status of the sale contract with the defendant regarding the apartment of this case to the plaintiff before the scheduled date of occupancy, and it is in violation of the Housing Construction Promotion Act, etc., and Article 52 (2) of the Act provides that the person who resells the apartment of this case shall be punished in violation of the period of restriction on resale, and there is no provision regarding the validity of the resale. Thus, it is valid as well as the resale contract in violation of the period of restriction on resale. However, the purchaser under the contract cannot oppose

However, Article 38-3(3) of the Act provides that when a purchaser resells the sale contract in violation of the period of restriction on resale, if the project undertaker pays the price after deducting depreciation costs and repair costs from the amount paid as the sale price, the project undertaker shall be deemed to acquire the relevant house on the date of the payment. Meanwhile, Article 8(1)3 of the sales contract between the defendant and the non-party provides that the defendant may cancel the sale contract. In light of the purport of the above provisions, if the purchaser resells the sale contract in violation of the period of restriction on resale, the purchaser cannot set up against the project undertaker as the fact of the purchase. The meaning of the above provision is that if the purchaser cancels the sale contract in violation of the period of restriction on resale, regardless of whether the purchaser has acquired opposing power in relation to the third party by completing registration in its name, the effect of cancellation of the sale contract cannot be denied, and it shall not be deemed that the project undertaker has no national housing redemption from the purchaser after deducting a certain amount from the sale price paid by the project undertaker.

Therefore, it is clear that the defendant did not claim the cancellation of the sales contract with the non-party or the invalidity or cancellation of the contract, and in this case where several plaintiffs did not claim that the non-party paid the price for housing refund under Article 38-3 (3) of the Act, the defendant cannot prevent the plaintiff from exercising his status as the purchaser or exercising his rights under the resale contract with the non-party merely because the non-party violated the period of restriction on resale.

2. According to the former Act (amended by Act No. 4530, Dec. 8, 1992; hereinafter the same), although the resale of national housing is prohibited from being conducted for a certain period from the time of sale, it is the opinion of the Supreme Court that the purchaser cannot oppose the seller's business entity by the fact of the resale, and that the judicial effect of the resale contract between the parties to the resale should not be null and void (see, e.g., Supreme Court Decisions 91Da21992, Sept. 10, 191; 91Da454, Feb. 25, 1992; 92Da11329, Jul. 28, 1992; 92Da3912, Jan. 26, 1993); however, this does not allow the legal effect of the provisions of the former Act with regard to the restriction on resale within a certain period of time, if the provisions of the Act itself allow the business entity to oppose the resale, not within a certain period of period of time.

However, according to the records, it is clear that the apartment house of this case is located within the Seoul Metropolitan area as a national housing located in the Dong-dong of Siposi in Siposi. Thus, according to Article 38-3(1) of the former Housing Construction Promotion Act, Article 37(1) proviso of the former Enforcement Decree of the same Act, and Article 37(1) proviso of the former Enforcement Decree of the same Act, and Article 485 of the Ministry of Construction and Transportation on August 24, 1991, the period of restriction on resale is two years after the commencement date of the occupancy of the house in question, which the business entity notifies the prospective occupants from the date of the occupancy of the house in question. Since the commencement date of the occupancy in this case is the even number of days during the period from November 1, 1994 to November 30 of the same year, the period of restriction on resale is until November 30, 196. The fact that the resale in this case was conducted on October 20, 19

Therefore, as long as the resale of this case was conducted within the period of restriction on resale, but it is apparent from the fact that the period of restriction on resale has expired thereafter, the plaintiff may assert the legal relationship of the resale of this case between the non-party and the non-party to the defendant who is the business entity. Therefore, the court below rejected the defendant's assertion that the plaintiff could not assert the validity of the purchase contract of this case between the non-party and the non-party, and accepted the plaintiff's claim of this case seeking the implementation of the registration procedure for the transfer of ownership of the apartment of this case by subrogation of the non-party, and there is no error of law by interpreting the law in violation of the precedents and affecting the conclusion of the judgment. The

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the defendant who is the appellant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)