매도청구권의 행사에 관한 연구 - 대법원 2009.3.26. 선고 2008다21549,21556,21563 판결과 관련하여 -

Abstract

This treatise deals with the legal problems of the exercise of a right of claim for sale, in relation to the judicial precedent of the Supreme Court of Korea 2009.3.26, 2008Da21549,21556,21563 (hereinafter "the 2008Da21549 precedent"). The Supreme Court of Korea decided on the requirement, the counterpart and the validity of the exercise of a right of claim for sale. "The Supreme Court of Korea gave a decision in "the 2008Da21549 precedent" that, first, the plaintiff notified the defendant of a right of claim for sale legitimately. Second, the plaintiff can exercise a right of claim for sale in spite of the land is not designated as the reconstruction area under the Act on the Maintenance and Improvement of Urban areas and Dwelling conditions for Residents(hereinafter "the Act on MIUDR"), in case that to plan a housing or a city development project is devised under the (former) Housing Construction Promotion Act. Third, the plaintiff can exercise a right of claim for sale(Article 39 of "the Act on MIUDR") even over the defendant who has only the land without a building. And last, the price of the land or the house includes the benefit of reconstruction in case of doing the exercise of a right of claim for sale. Especially, whether the plaintiff can exercise a right of claim for sale in spite of the land is not designated as the reconstruction area under "the Act on MIUDR" is the issue. The original(Seoul High Court) judgment decided on the premise that the designation of reconstruction area is the requisites for a right of claim for sale. The original judgment decided that the land is included in the designated reconstruction area. On the other hand, the Supreme Court of Korea decided that the plaintiff can exercise a right of claim for sale in spite of the land is not designated as the reconstruction area under "the Act on MIUDR", in case that to plan a housing or a city development project is formulated. I think that the land should be designated for the housing reconstruction area under "the Act on MIUDR", if the plaintiff can exercise a right of claim for sale. The original decision and the Supreme Court of Korea came to the same conclusion, but the Supreme Court of Korea did not put forth a convincing reason in regard to the designated reconstruction area. So, I disagree on the reason of the Supreme Court of Korea.