[2] The case holding that in a case where a lawsuit seeking confirmation of invalidity against an act of establishing an association, which is merely a requirement of authorization of establishment, is brought into a civil lawsuit after an administrative agency's authorization of establishing an association is issued against an urban environment rearrangement project association, such lawsuit constitutes a party lawsuit, which is a kind of administrative litigation, and can be changed into an appeal litigation against the disposition of approving the establishment of an association with permission of the competent court

Under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7335, Jan. 14, 2005; hereinafter “Urban Environment Improvement Act”), an urban environment improvement project association is established as a juristic person upon obtaining approval for establishing an association from an administrative agency upon filing an application for authorization of establishing an association with an administrative agency in accordance with the requirements and procedures prescribed by the relevant Acts and subordinate statutes (Articles 16(1) and (5), and 18). As can be seen, an urban environment improvement project association established upon obtaining the status of an administrative agency as an implementer of an urban environment improvement project with special purpose of existence in legal relations with its members (Article 38 of the same Act); and a management and disposal plan (Article 48 of the same Act); and a disposition imposing expenses (Article 61 of the same Act) and an administrative disposition (Article 61 of the same Act). Therefore, it is reasonable to recognize the status of an administrative agency as an association establishment establishment establishment authorization (see Article 208 of the same Act).

In addition, as long as it is seen so, if the authorization of the establishment of an association is issued, the resolution of the establishment of an association is merely one of the requirements necessary for the administrative disposition such as the above authorization disposition, and thereafter the assertion of invalidation of the establishment of an association on the ground of defects in the resolution of the establishment of an association after the authorization disposition is issued shall be based on an appeal procedure seeking revocation of the authorization of the establishment of the association or invalidation confirmation, and it shall not be allowed as there is no benefit of confirmation to file a lawsuit seeking confirmation on the validity of only the association establishment resolution (see Supreme Court Decision 2008Da50172, Nov. 26, 2009)

However, according to the reasoning of the judgment below and the record, the lawsuit of this case is filed on August 27, 2007, after the authorization of the establishment of the association by the competent administrative agency against the defendant association, which is an urban environment rearrangement project cooperative, was issued on December 16, 2004, for the confirmation of invalidity of the establishment of the association of this case, which is merely the requirement of the establishment approval. Thus, there is room to view it as an illegal lawsuit without any interest in confirmation in accordance

However, the subject matter that the plaintiffs intend to dispute by the lawsuit in this case is the validity of the establishment of the association, and it should be based on the method of seeking revocation or invalidity confirmation of the establishment of the association, as seen earlier. However, it seems that the previous practical practice, which had been viewed as a supplementary act without properly understanding such legal principles, has been followed and the method of seeking confirmation of invalidity of the establishment resolution meeting the requirements is inevitably selected. In light of these circumstances, the lawsuit in this case does not mean that the substance does not dispute the validity of the establishment approval disposition, but it is not the purport that the other party to the lawsuit in this case is the defendant association who has the status as an administrative agent. In addition, considering the fact that the other party to the lawsuit in this case is the defendant association with the status as an administrative agent, it is reasonable to view that the lawsuit in this case is related to

Therefore, the lawsuit of this case should have been brought to the Seoul Administrative Court, which is the cause of the exclusive jurisdiction of the court of first instance. Since the lawsuit of this case was brought to the Seoul Central District Court and tried, it is erroneous in violation of the exclusive jurisdiction prior to the existence of interests in the lawsuit. Considering that the transfer of the lawsuit can be changed to the litigation seeking nullification of the approval of the establishment of the association after the transfer to the competent court, it is difficult to see that the lawsuit of this case is illegal and dismissed even if it is transferred to the court, and therefore, it shall be delivered to the competent court (see Supreme Court Decision 2009Da10638, 2009Da10645, Oct. 15, 200).

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part of the judgment of the court below against the plaintiffs is reversed, and the same part of the judgment of the court of first instance is revoked, and this part of the case is transferred to the Seoul Administrative Court, which is the competent court, to a new trial and determination. It is so decided as per Disposition by the assent

Justices Park Si-hwan (Presiding Justice)