In a case where a business entity entrusts a housing construction site to a housing guarantee company pursuant to Article 40(6) of the former Housing Act and Article 45(5)3 of the former Enforcement Decree of the Housing Act, whether a business entity may be subject to seizure or provisional seizure before the expiration of the disposal period under Article 40(1) of the former Housing Act (negative in principle), and the validity of the decision of seizure or provisional seizure against such rights (negative)

Article 40 of the former Housing Act (amended by Act No. 9405 of Feb. 3, 2009); Article 45(5)3 of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 21744 of Sept. 21, 2009)

Plaintiff (Law Firm Gyeong, Attorneys Shin Jae-hwan et al., Counsel for the plaintiff-appellant)

Korea Housing Guarantee Co., Ltd. (Law Firm Chuncheon, Attorneys Cho Jae-ap et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2011Na55063 decided December 2, 2011

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

The grounds of appeal are examined.

1. Article 40(1) of the former Housing Act (amended by Act No. 9405, Feb. 3, 2009; hereinafter “former Housing Act”) provides that, with respect to housing and site constructed by a housing construction project implemented in accordance with a project plan approved by a project proprietor pursuant to a project plan, an eligible resident shall not dispose of the relevant housing and site without the consent of the eligible resident or establish a limited real right, etc. for a period of 60 days from the date on which the eligible resident can file an application for the registration of ownership transfer of the relevant housing and site after the date on which the public announcement of invitation of occupants can be made. Paragraph (2) of the same Article provides that, with respect to housing and site constructed in accordance with the project plan approved by the project proprietor, the term “the date on which the application for ownership transfer registration may be made” in paragraph (1) refers to the date on which the project proprietor notifies the prospective resident, and Paragraph (3) of the same Article provides that the restricted real right shall be additionally registered after transfer, establishment, provisional seizure, disposal, etc.

The purpose of each provision is to prevent the disposal of the business entity with respect to the relevant housing or housing site, and the establishment of security rights, etc. for a certain period of time so that the prospective occupants can acquire the ownership of the housing or housing site constructed by the housing construction project. However, the purpose of each provision is to protect the prospective occupants in preference to the project entity and its creditors by denying the effect of disposal in violation of the foregoing prohibition or attachment, provisional attachment, provisional attachment, and provisional disposition on the relevant housing or housing site after the additional registration.

Meanwhile, Article 40(6) of the former Housing Act provides that where a defendant company established pursuant to Article 76 provides a guarantee for sale and trust of a housing construction site for reasons prescribed by the Presidential Decree, such as cases where the financial status and financial transaction status of a project undertaker are extremely poor, etc., the project undertaker may trust such housing construction site, notwithstanding Article 40(1) and (3). Article 45(5)3 of the former Enforcement Decree of the Housing Act provides that "where a project undertaker intends to entrust the housing construction site to the defendant company without making an additional registration under Article 40(3) of the former Housing Act, the relevant housing site shall be separated from a truster's property right as well as a trustee's inherent property, and if it is established with respect to the housing construction site, the relevant housing site shall be managed separately from the trustee's inherent interest as well as the provisional registration under Article 50(4) of the former Enforcement Decree of the Housing Act may become the same as the provisional registration under Article 40(5)3 of the former Enforcement Decree of the Housing Act.

However, upon completion of the trust registration of the housing construction site as above, the disposal of the housing construction site itself, or the seizure and provisional seizure thereof may be prevented. However, if a creditor of the project undertaker grants permission without restriction to the effect that it is valid, the defendant company is prohibited from arbitrarily implementing the registration procedure for transfer of ownership to the project undertaker, and it is also impossible for the project undertaker to transfer the ownership of the housing construction site to the prospective occupants. Meanwhile, after a creditor of the project undertaker or defendant company is appointed as a custodian and the registration of transfer of ownership is completed under the name of the project undertaker, it might result in the result that the prospective occupants would become unable to acquire the ownership of the housing construction site by a compulsory auction, etc. based on the title of the project undertaker. Accordingly, permitting the creditor of the project undertaker to seize and provisional seizure the right to claim transfer registration of ownership based on the termination of the trust of the housing construction site itself would be inconsistent with the purport of Article 40 of the former Housing Act in that it could not be allowed to acquire the ownership of the housing construction site as a means to protect the prospective occupants.

Therefore, in light of the legislative intent and contents of Article 40 of the former Housing Act, the additional registration of prohibited matters, and the relationship between trust registration, etc., in a case where a project proprietor entrusts a housing construction site to a defendant company, the right to claim for transfer registration of ownership based on the termination of trust held by the project proprietor against the defendant company cannot be subject to seizure or provisional seizure, unless there are special circumstances before the expiration of the restriction period of disposal under Article 40(1) of the former Housing Act, and there is no effect of the decision of seizure or provisional seizure against the above rights.

In addition, if a project proprietor executes a housing construction project under the former Housing Act and completes the registration of trust in the name of a defendant company with respect to the housing construction site, the relevant housing construction site is subject to the application of the former Housing Act and is publicly announced externally by the registration and trust ledger. As such, it cannot be said that the creditor of the project proprietor suffers losses due to restricting the seizure and provisional seizure of the right to claim the registration of ownership transfer with respect

Furthermore, Article 40 of the former Housing Act provides for the additional registration of prohibited matters and the registration of trust; such provision is based on the premise that prospective occupants are equally protected according to the additional registration of prohibited matters, regardless of whether the registration of trust is intended, and it is not intended to grant additional protection to prospective occupants only when the additional registration of prohibited matters is completed. In light of the fact that the additional registration of prohibited matters was completed with respect to the housing construction site, the effect of seizure, etc. of the right to claim ownership transfer registration based on the termination of trust should not be affected.

2. According to the reasoning of the judgment of the court of first instance cited by the court below, he purchased each of the instant apartment on March 30, 2004 in order to carry out the sale of the instant apartment, and completed the registration of ownership transfer under his name. The Mamamae shall obtain the building permit of this case from the competent government office on June 21, 2004, and he received the approval for the tenant invitation of 15th and 214 units of the instant apartment on November 26, 2004 and recruited occupants on the land. On the other hand, on November 2, 2004, the Mamae completed the registration of ownership transfer on each of the instant land on the ground of trust as to each of the instant land from the Defendant company on May 10, 206, and the Plaintiff obtained the registration of ownership transfer transfer from the Seoul Central District Court Order 2006Ma6384, May 27, 2006 each of the instant apartment construction rights to the above Defendant company on each of the same construction project owner.

When examining these facts in light of the legal principles as seen earlier, the instant seizure is null and void as it is subject to the right not to be subject to seizure in its nature, since it seized the right to claim the transfer registration of ownership against the defendant company of the Roman who caused the termination of the trust prior to the expiration of the restriction period under Article 40(1) of the former Housing Act as to the instant land trusted to the defendant company as a housing construction site.

Nevertheless, the lower court determined otherwise on the ground that the validity of the restriction on disposal of a building site or house is only determined based on whether a project undertaker has completed an additional registration under Article 40(3) of the former Housing Act, and on the premise that the registration of ownership transfer based on the trust cannot be treated equally as the above additional registration, it cannot be deemed that the seizure of this case cannot be deemed null and void because he did not complete the additional registration as to each of the land of this case by the effective date of the seizure. In so doing, the lower court erred by misapprehending the legal doctrine on Article 40 of the former Housing Act, thereby adversely affecting the conclusion of the judgment.

3. 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)