The legislative intent of Article 19-2 of the former Housing Site Development Promotion Act and Article 13-3 of the Enforcement Decree of the same Act / The validity of a sales contract for the sale of a housing site that requires the seller to resell the housing site to be supplied in the future before entering into a housing site supply contract as it is, and whether the seller is obligated to cooperate with the procedure of “project implementer’s consent” with respect to the housing site to

Articles 19-2 and 31-2 of the former Housing Site Development Promotion Act (Amended by Act No. 10599, Apr. 14, 201); Article 13-3 of the former Enforcement Decree of the Housing Site Development Promotion Act (Amended by Presidential Decree No. 23113, Aug. 30, 201)

Plaintiff (Counterclaim Defendant) (Law Firm Jeong, Attorneys Choi Hong-soo et al., Counsel for the plaintiff-appellant)

Defendant-Counterclaim (Law Firm U.S., Attorneys Park Hong-dae et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2016Na73, 80 decided September 1, 2016

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. According to Articles 19-2 and 31-2 of the former Housing Site Development Promotion Act (amended by Act No. 10599, Apr. 14, 201; hereinafter “Housing Site Development Promotion Act”), any person supplied with a housing site created pursuant to the Housing Site Development Promotion Act may not resell the housing site as it is without using it for the purpose for which the housing site is supplied until the time when the transfer of ownership is registered: Provided, That this restriction may not apply in cases prescribed by Presidential Decree. If a person resells the housing site in violation of such restriction, the relevant juristic act shall be null and void and subject to criminal punishment. Meanwhile, according to the former Enforcement Decree of the Housing Site Development Promotion Act (amended by Presidential Decree No. 23113, Aug. 30, 2011; hereinafter “Enforcement Decree of the Housing Site Development Promotion Act”), where the purchaser purchased the housing site or acquired the consent of the implementer by means of falling under any of subparagraphs 1 through 9, and the ownership of the housing site to be supplied by the State or a trust company under the Housing Construction Promotion Act (hereinafter referred to the Act).

In full view of the legislative purport, etc. of the Housing Site Development Promotion Act, which aims to contribute to the stabilization of national housing and the improvement of welfare by prescribing special cases concerning the acquisition, development, supply, and management of housing sites necessary for housing construction in order to solve the housing shortage in the urban area, the act of resale of housing sites created under the Act shall be prohibited in principle until the registration of ownership transfer is completed, and the act of resale shall be exceptionally permitted only in cases where it is necessary to give an opportunity to sell the ownership of housing sites prior to the registration of ownership transfer or where there is no concern about speculative transactions in light of the purpose of the relevant housing site, the parties to a resale contract, the reasons for concluding a resale contract, the resale price, etc.; however, the purport of the provision that requires the consent of the implementer is necessary to restrain an application for supply of housing sites for the purpose of acquiring the housing site to the end-user who intends to use the housing site for the purpose of acquiring the housing site. Accordingly, it shall be interpreted that the act of resale of the housing site directly participating by the implementer, and thereby allowing the consent thereto, thereby prohibiting the conclusion

Therefore, the “project implementer’s consent” stipulated as the special requirement for the restriction on resale is premised on the fact that a housing site supply contract was concluded with respect to a housing site developed in accordance with the Housing Site Development Promotion Act. Even if a housing site sale contract was concluded with the intent to resell the housing site to be supplied in the future before concluding a housing site supply contract, it is impossible for the project operator to consent to the sale and purchase contract for the housing site so it is null and void, and it is reasonable to interpret that the seller is not obliged to cooperate with the “project operator’s consent” procedure

2. According to the reasoning of the lower judgment and the evidence duly admitted, ① On December 10, 2010, the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) entered into a sales contract with the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) with the content that each real estate listed in the attached list of the lower judgment owned by the Plaintiff would be supplied by the Korea Land and Housing Corporation (hereinafter “instant sales contract”) to the Defendant as the implementer of the instant project, to sell the sales price of KRW 75 million to the Defendant, as the real estate was incorporated into the Busan High Sea Free Economic Zone Development Zone. The Plaintiff entered into the sales contract with the Korea Land and Housing Corporation (hereinafter “instant sales contract”). At the time of the instant sales contract without the consent of the Korea Land and Housing Corporation (hereinafter “instant sales contract”). The Plaintiff was selected as eligible for relocation measures of the instant development project, and the Plaintiff entered into the sales contract with the Korea Land and Housing Corporation on March 6, 2015 (hereinafter “instant housing site”).

3. Examining these facts in light of the legal principles as seen earlier, the instant sales contract constitutes a contract with the purport to resell the migrants created under the Housing Site Development Promotion Act before the transfer of ownership is registered. Since the instant sales contract was concluded without consent of the Korea Land and Housing Corporation prior to the conclusion of the instant sales contract with the Korea Land and Housing Corporation, the operator, which is the Korea Land and Housing Corporation, and thus becomes null and void. The Plaintiff is not obligated to cooperate with the procedure of applying for the consent to resell the housing site from the Korea Land and Housing Corporation. Although the Plaintiff received the instant housing site by the instant sales

Nevertheless, the lower court determined otherwise that the instant sales contract is in a state of flexible invalidation, which can be retroactively effective, based on the consent of the Korea Land and Housing Corporation or upon the approval of the ex post facto consent of the Korea Land and Housing Corporation. On that premise, the lower court held that the Defendant is liable to implement the procedure for applying for the consent of resale for the change of the buyer’s name regarding the instant sales contract, as the Plaintiff is obligated to cooperate to ensure the validity of the instant sales contract.

Therefore, the court below erred by misapprehending the legal principles as to the validity of the resale of the resettled housing site in violation of Article 19-2 of the Housing Site Development Promotion Act, the interpretation of "the consent of the implementer" under the Enforcement Decree of this case, and the validity of the sale contract of the resettled housing site without the consent, thereby affecting the conclusion of the judgment.

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)