분양가 상한제와 강행법규이론의 한계

The Housing Price Ceiling System under the Housing Act is a public law regime that requires developers who have obtained project approval to supply apartments at prices not exceeding the ceiling determined by local authority. Recently, courts have increasingly construed individual provisions within public law schemes as mandatory provisions and declared private sales contracts null and void on that basis. This trend has extended to the interpretation of provisions determining housing site preparation costs under the Housing Price Ceiling System. However, isolating a single provision and construing it as a mandatory provision in civil litigation risks distorting the holistic structure and purpose of the system. Whether a provision violates public policy should be assessed in light of the entire scheme and its underlying objectives. The Housing Price Ceiling System possesses the characteristics of a administrative permission. Once the ceiling price is determined through deliberation by the Sale Price Examination Committee and the local authority grants permission for apartment allocation, the proposed price falling within the ceiling is deemed authorized. The Housing Act prescribes criminal sanctions for violations of the price ceiling, reinforcing its nature as a administrative permission. A developer whose proposed price meets the statutory ceiling may challenge an unlawful refusal of approval through an revocation of refusal disposition. The primary purpose of the system is to stabilize housing market prices in the public interest, rather than to create individual rights or legal interests for purchasers. The provision on housing site preparation costs functions primarily as a criterion for reviewing the legality of administrative acts in revocation litigation. The “supply price” of land refers to the price specified in the bid notice rather than the discounted price resulting from advance payment rebates. In practice, land use rights are often granted before full payment, allowing price examinations to proceed even while parts of the purchase price remain unpaid. This confirms that the supply price applied in price examinations is the bid notice price, not the actual amount paid after discounts. Although revocation litigation is available to challenge sales price, few revocation suits have been brought, largely because the relatively low prices have satisfied most purchasers. Consequently, pursuing restitution claims in civil litigation constitutes a duplication of remedies. As a public law instrument, the Housing Price Ceiling System seeks to regulate the initial supply price of multi-unit housing to stabilize the housing market. It requires utmost caution to approach a public law regime from a civil law perspective, interpret parts of such a regime as mandatory provisions, and deny the validity of private contracts on that basis. Even if civil courts construe the housing site preparation costs provision as a mandatory provision, declaring a violation without reviewing the legality of administrative approval undermines the integral nature of the scheme. The provisions of such public law systems must be construed holistically, considering their purpose and interdependent institutional mechanisms.