2010 joint 554 Damages

1. О(хххXX-хххXXхX)

2. О (ххххXX-XXXXXXX)

원고들 주소 광주 서구 O0동ㅡ--로렌시아 _동 _호

[Judgment of the court below]

corporation.

Yeongdeungpo-gu Seoul Metropolitan Government 000 ----

Another representative director ○

Law Firm Roon, Attorney Park Sang-hoon

[Defendant-Appellee]

August 26, 2010

September 16, 2010

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The defendant shall pay to the plaintiffs 45,00,000 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

♣. 당사자의 지위

The plaintiffs are those who have operated a kindergarten with the trade name "(8% in the ground building)", which owns the same 00 - Do-- 707 meters in Seo-gu, Seo-gu, Gwangju, and 538 meters in Dong - Dong - Dong - Dong - Dong - Dong - Dong 2 (hereinafter "the land of this case") each at 1/2 shares. The defendant is a person who has been entrusted with the above land of this case from △△△△△△ (hereinafter "non-party company") that purchased the land of this case, etc. in order to implement the construction project of 336 households on the land of this case, including the land of this case.

B. Sale of the instant land

The plaintiffs sold the instant land to the non-party company on June 10, 2006, and completed the registration of ownership transfer under the name of the non-party company on July 4 of the same year.

(c) A supplementary registration of prohibited matters and a trust of the land in this case;

On July 10, 2006, the non-party company obtained approval from the head of the Seoul Metropolitan City housing construction project plan from the head of the Gu on December 5, 2006 and completed the additional registration of prohibited matters pursuant to Article 40(3) of the Housing Act on the land of this case, and completed the registration of ownership transfer based on the trust on the same day.

D. Conclusion of the instant agreement

After that, on August 24, 2007, the plaintiffs and the non-party company entered into an agreement with the following contents (hereinafter referred to as "private agreement").

1. The non-party company paid the sale price in accordance with the sale schedule with respect to the apartment of this case 000 dong 0000 dong 000 dong 0000 dong 2, and transferred the ownership of the above apartment to the plaintiffs. 2. With respect to the above apartment of 000 dong 0000 dong 2000 among the above apartment of this case, the non-party company shall pay KRW 455,000,000 in lieu of the apartment of this case until March 2008. 3. In the case where the artificial park construction company fails to complete the artificial park construction of a new kindergarten, the plaintiffs shall undertake the artificial park construction, but the non-party company shall pay the plaintiffs the construction price by October 31, 2007.

he/she

E. Filing a lawsuit against the non-party company

1) However, the Plaintiff did not perform the interior work of a newly-built kindergarten. As such, the Plaintiffs completed the interior work with a cost equivalent to KRW 124,727,600.

2) As the non-party company did not perform its obligations under the instant agreement, on March 31, 2008, the plaintiffs first received from the court the attachment order (hereinafter referred to as "the attachment order of this case") as to the non-party company and the defendant's right to claim ownership transfer registration on the land of this case due to the termination or termination of the trust agreement between the non-party company and the defendant, with the claim for the agreed amount of KRW 445,000,000,000 as to the instant apartment as the claim for the contract amounting to KRW 445,000,000. The attachment order of this case was served on the non-party company and the defendant at that time.

3) Then, on July 14, 2008, the plaintiffs filed a lawsuit against the non-party company seeking payment of KRW 45,727,60,00, as the Gwangju District Court 2008 & 6870, for the implementation of the procedure for the registration of ownership transfer to the apartment of this case by the District Court 2008 & 68700, and for the payment of KRW 569,727,60,00 (= KRW 455,00,000, as the apartment of this case was to be paid instead of 000, 000, + the cost of interior construction of the newly-built kindergarten).

위 법원은 2008. 10. 20. '1.피고는 원고들에게569,727,600원 및 그 중 445,000,000에 대하여는 2008. 3. 21.부터 2008. 7. 22.까지는 연 5% 의, 그 다음날부터 다 갚는 날까지는 연 20% 의 각 비율로 계산한 돈을, 12,727,600원에 대하여는 2008. 7. 23.부터 다 갚는 날까지 연 20% 의 비율로 계산한 돈을 각 지급한다. 2. 원고들은 이 사건 소 중 광주 서구 00동 - 지상 ♥ 아파트 0000동 0000호에 관하여 2007. 8. 24 . 매매를 원인으로 한 소유권이전등기청구 부분을 각 취하한다' 는 내용의 화해권고결정을 내렸는데, 그 화해권고결정은 2008. 11. 8. 확정되었다.

F. Disposition, etc. of the instant land

1) On February 25, 2009, the Defendants completed the registration of ownership transfer on the instant land with respect to the Nonparty Company based on the reversion of trust property.

2) 이에 소외 회사는 2009.3. 9. 이 사건 토지를 포함한 위 00동 - 외 104필지 를 토지구획정리사업에 의하여 같은 동 931 대 31,480.8m로 환지한 다음 '00동 ♥ & ○마을' 아파트 부지로 제공하였고, 아파트를 신축한 후 이를 수분양자 등에게 분양 하거나 시공사에게 공사대금채무에 대한 대물변제 명목 등으로 처분하였다.

[Basis for Recognition] Unsatisfy, Gap evidence Nos. 1 through 5 (where there are lot numbers, including lot number number, this);

(n) Each entry and the purport of the whole pleadings;

2. A party’s assertion and determination

8. The parties' assertion

As the cause of the instant claim, the Defendant completed the registration of ownership transfer in the name of the non-party company with respect to the land of this case, even though the Defendant was unable to implement the registration procedure for ownership transfer to the non-party company in accordance with the provisional attachment order of this case. The non-party company disposed of this case again to the other party, thereby causing losses to the Plaintiffs that could not recover from the non-party company. Thus, it asserts that the claim amount of the provisional attachment decision of this case constitutes a non-party company, which is the provisional attachment authority, and sought a 445 million won amount as damages compensation against the Defendant.

In this regard, if the supplementary registration of the gold branch is completed in relation to the housing construction site pursuant to Article 40 (3) of the Housing Act, the defendant grants the provisional seizure of the right to claim ownership transfer of the substitute land without the consent of the prospective occupants after the supplementary registration date, this would result in a deviation from the purpose of legislation under Article 40 of the Housing Act, which was prepared to protect prospective occupants, and thus, the provisional seizure decision of this case is null and void in violation of Article 40 of the Housing Act. ② Even if the provisional seizure decision of this case is valid, in order to obtain the final satisfaction of the claim claim, the land of this case should first be reverted to the non-party company's responsible property, and the compulsory auction, etc. against which the seizure is possible, but this constitutes a prohibited matter under Article 40 of the Housing Act. Accordingly, it is impossible to see that the land of this case cannot be seen as having caused any damage to the plaintiffs due to the defendant's act.

B. Determination

1) Whether the decision of seizure of this case is effective

(C) Article 40(2) of the Housing Act provides a house or site as a security or disposes of it, in violation of Article 40(1) of the Housing Act, the judicial effect is not denied. However, Article 40 of the Housing Act provides that, in principle, an additional registration of prohibited matters concerning the housing construction site shall be completed prior to approval for the purpose of protecting the persons who receive the housing after approval for the announcement of the announcement of the announcement of the recruitment, and thereafter, a disposal disposition is prohibited with respect to the housing construction site unless the persons who receive the housing agree, and it is denied the validity of any change in real rights by a disposal that is prohibited from disposal, seizure, pressure, provisional disposition, etc. As such, only the additional registration under paragraph (3) of the same Article is taken over, limited to the case where a limited real right is established, or seized, seized, or disposed of after the additional registration date (see, e.g., Supreme Court Decision 2003Da521064, Jan. 29, 2004).

However, seizure or provisional seizure on the right to claim ownership transfer registration is not against real estate subject to the right to claim ownership transfer registration, but against real estate itself, there is no physical effect that prohibits disposal of real estate (see, e.g., Supreme Court Decision 2005Da44886, Sept. 21, 2007). Article 40 of the Housing Act prohibits seizure and provisional seizure on "the relevant site itself" after the additional registration date only in cases where the additional registration on prohibited matters is completed to protect prospective occupants of housing construction projects in order to protect prospective occupants of housing construction projects. Thus, it cannot be deemed that the seizure and provisional seizure of "right to claim ownership transfer registration on the relevant site" is prohibited by the above provision.

B) Therefore, the instant land is not attached to the instant land itself, but is merely a provisional seizure of the right to claim the transfer registration of ownership of the instant land after the completion of the registration of the non-prohibited matters in accordance with Article 40(3) of the Housing Act as to the instant land.

2) Whether there exists damages against the plaintiffs

A) In the event that a third-party debtor committed the registration of transfer to a debtor while disregarding the fact that the provisional seizure had been effected with respect to the immovables for which the right to claim registration of transfer was provisionally seized and the debtor incurred damage to the creditor as a result of the debtor’s re-registration of transfer to a third party, it constitutes a tort and thereby constitutes compensation liability (see, e.g., Supreme Court Decision 2005Da44886, Sept. 21, 2007).

However, in the event that ownership is seized, in order for the creditor to collect the claim, the creditor shall first complete a registration of ownership transfer for the real estate in accordance with the procedure provided in Article 244 of the Civil Execution Act, and then conduct a compulsory auction for such real estate again, and be distributed in the auction procedure (see, e.g., Supreme Court Decision 2002Da39371, Oct. 25, 2002).

구체적으로는 소유권이전등기청구권을압류한채권자는 부동산이 있는 곳의 지방법원에 보♤☆ 선임 결정과 제3채무자에 대하여 부동산에 관하여 채무자 명 의의 소유권이전등기절차를 보♤☆에게 이행하라는 결정을 하여 주도록 신청할 수 있 고(채권자가 그 신청을 지체하는 경우에는 제3채무자도 면책을 위하여 이를 신청할 수 있다), 법원은 채권자의 신청이 이유 있으면 결정으로 보관인을 선임하고 제3채무자에 대하여 보관인에게 부동산에 관하여 채무자 명의의 소유권이전등기절차를 이행할 것을 명하며, 그 후 제3채무자가 위 결정에 따라 임의로 등기의무를 이행할 경우에는 채무 자의 대리인인 보관인(보관인은 채무자 명의로 소유권이전등기를 신청함에 있어서 채 무자의 대리인이 된다)과 제3채무자의 등기신청으로 채무자 명의의 소유권이전등기를 경료하고, 만약 제3채무자가 등기절차의 이행에 협력하지 아니할 경우에는 채권자는 추심명령을 얻어 제3채무자를 상대로 추심소송을 제기한 뒤, 그 확정판결에 기하여 채 무자 명의의 소유권이전등기를 경료하여야 하며, 그런 다음에 채권자는 본래의 집행권 원에 기하여 당해 부동산 자체에 대한 강제경매 또는 강제관리를 실시하여 그 경매절 차에서 배당받아야 한다.

B) Therefore, the Plaintiffs, who seized the right to claim for ownership transfer registration against the Defendant with respect to the instant land, first of all, secured the title against the non-party company and received an order of seizure that transferred the above right to claim ownership transfer registration to the provisional seizure, and filed an application for the order of appointment of the custodian and transfer of rights to the Gwangju District Court to ensure that the non-party company’s name transfer, etc. is completed with respect to the instant land, thereby effectively reverting the instant land to the non-party company’s liability

However, in order for the plaintiffs to obtain a final satisfaction of the claims for the attachment decision of this case, they shall separately apply for compulsory auction or compulsory administration on the land itself based on the enforcement title. If the execution court receives an application for compulsory auction or compulsory administration and deems the application lawful, it shall make a decision to commence the compulsory auction and order the seizure of the land of this case at the same time (Articles 83(1) and 162 of the Civil Execution Act). This constitutes a case where the land of this case itself is seized after the additional registration of prohibited matters under Article 40(3) of the Housing Act is completed with respect to the land of this case.

Ultimately, even if the provisional attachment decision of this case does not constitute a prohibited matter under Article 40 of the Housing Act, the plaintiffs could not obtain the final satisfaction of the claim claim claim claim claim claims due to the prohibition effect under Article 40 of the Housing Act at that time due to the prohibition effect under Article 40 of the Housing Act. Thus, even if the defendant completed the registration of ownership transfer with respect to the land of this case for which the claim for the registration of ownership transfer was provisionally seized without disregarding the provisional attachment decision of this case, and the non-party company disposed of the land of this case on the other hand, it cannot be deemed that any damage has occurred to the plaintiffs.

C) Therefore, the owner of the prior Plaintiffs’ claim on a different premise is without merit to further examine the scope of damages.

3. Conclusion

Therefore, the plaintiffs' claims of this case are dismissed as it is without merit. It is so decided as per Disposition.

Kim Young-young (Presiding Judge)

Note :

Park Gi-ju

1) The Home School recorded in the warden seems to be a clerical error of 88's in light of the statement of the decision (No. 5-1).

2) Article 40 of the Housing Act (amended by Act No. 9405 of Feb. 3, 2009) (Restriction on Establishment of Mortgage, etc.)

(1) A project undertaker shall substitute for the housing and sites built under a housing construction project which is implemented after obtaining an approval for project plan under Article 16 (1).

such houses and houses from the date of application for approval of invitation of residents (referring to the date of application for approval of project plans in the case of a housing association);

During the period of 60 days from the date on which an application for the registration of ownership transfer of a housing site may be filed, falling under any of the following subparagraphs:

No act shall be conducted, except in case where the Presidential Decree prescribes in order to promote the construction of relevant housing.

1. The act of setting security rights such as mortgage and provisional registration security rights on the relevant housing and housing site;

2. Creating a right to lease on a deposit basis, superficies, or registered right to lease on the relevant housing and housing site;

3. Acts to dispose of the relevant housing or housing site by means of sale or donation, etc.

(2) "Date on which an application for registration of ownership transfer may be filed" in paragraph (1) means the date on which a project operator notifies prospective occupants of the occupancy.

(3) In imposing restrictions on the establishment of mortgage, etc. under paragraph (1), the project undertaker shall transfer the mortgage or establish a limited real right without the consent of the prospective occupants.

정하거나 압류· 압류 ·♣처분 등의 목적물이 될 수 없는 재산임을 소유권등기에 부기등기하여야 한다. 다만, 사업주체

A competition prescribed by Presidential Decree, such as cases where public institutions, such as national, local governments, and 00 Housing Corporation, are not owned by the relevant project operator;

this provision shall not apply to any mail.

(4) The additional registration under the provisions of paragraph (3) shall be made for the housing construction sites simultaneously with an application for approval for the announcement of invitation of residents, and a building site.

shall be registered simultaneously with the registration of initial ownership. In such cases, matters concerning the details and cancellation of additional registration shall be prescribed by Presidential Decree.

(5) Where the relevant site or house has been acquired, a limited real right has been established, or seizure, seizure, or seizure has been conducted after the date of supplementary registration under paragraph (4).

♣처분 등의 목적물로 한 경우에는 그 효력을 무효로 한다. 다만, 사업주체의 경영부실로 입주예정자 당해 대지를 양수받

this shall not apply to cases prescribed by Presidential Decree, etc.

(6) Where the financial or financial transactions conditions of a project undertaker are extremely poor, etc. and they fall under the causes prescribed by Presidential Decree, under Article 76.

설립된 ♤♤♤♤♤주식회사 분양보증을 행하면서 주택건설대지를 ♤♤♤♤♤주식회사에 신탁하게 할 경우에는 제1항

Notwithstanding the provisions of paragraph (3), a project undertaker may trust the relevant housing construction sites.

3) All of the above precedents are governed by Article 32-3 of the former Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 2003).

However, this legal principle is to be applied to the provisions of Article 40 of the current Housing Act that has succeeded to the above provisions as it is.