[2] Whether a written consent of the existing promotion committee for the establishment of a partnership constitutes a written consent of the owner of land, etc. under Article 6 of the Enforcement Rule of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (affirmative)

[3] Whether the form of written consent or the qualification of promoters and the selection method of promoters under the "Operational Rules of the Promotion Committee of the Promotion Committee of the Maintenance and Improvement Association" enacted by the Ministry of Construction and Transportation public notice constitutes the requirements for approval

1. Article 1 of the Addenda to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the "Act") (amended by Act No. 6852, Dec. 30, 2002; hereinafter referred to as the "Supplementary Rule") provides that "this Act shall enter into force on the date six months have passed since its promulgation;" Article 9 of the former Promotion Committee being operated by the owners of land, etc. to establish an association aimed at implementing a redevelopment project or a reconstruction project at the time this Act enters into force shall be deemed to be the Promotion Committee under this Act if the owner of land, etc. has obtained approval within six months from the enforcement date of this Act by satisfying the requirements for consent under Article 13 (2) of this Rule." Thus, unless the existing Promotion Committee obtains approval from the head of Si/Gun after the expiration of the above period, the transitional provisions under Article 9 of the above Addenda shall not apply, and otherwise, interpreting "where approval was obtained within six months from the enforcement date of the Act" as "where an application for approval was filed within six months from the enforcement date of the Act."

According to the facts acknowledged by the court below, the intervenor's promotion committee for the construction of the housing redevelopment project partnership for the Lee Gyeong-gi District (hereinafter "the intervenor promotion committee") filed an application for approval of the promotion committee with the defendant on December 30, 2003, which left two days after the enforcement date of the law, and even according to the application documents, the number of owners of lands, etc. is 915 and the consent date for the composition of the promotion committee is 465. In light of the fact that the period for processing the application for approval of the promotion committee in the attached Forms 6 and 2 of the Enforcement Rule of the Act is 60 days, it is necessary for the defendant to review the documents of the intervenor promotion committee's approval. Thus, since the defendant did not approve the composition of the intervenor's promotion committee within the period stipulated in Article 9 of the above Addenda, it cannot be deemed unlawful since Article 9 of the defendant did not apply to the intervenor's approval of the promotion committee only on June 23, 2004.

Nevertheless, the court below determined that Article 9 of the Addenda is applied to the Intervenor's promotion committee under the premise that Article 9 of the Addenda to the Act is applied only if the existing promotion committee applies for the approval within 6 months from the enforcement date of the former Urban Improvement Act. In so doing, the court below erred by misapprehending the legal principles on the interpretation of Article 9 of the Addenda.

However, even though the period stipulated in Article 9 of the Addenda above has already been expired, if the Intervenor's promotion committee satisfies all the requirements stipulated in Article 13 (2) of the Act, approval for establishment of the Intervenor's promotion committee cannot be denied. As examined below, the Intervenor's promotion committee fully satisfies the requirements for approval for the promotion committee under Article 13 (2) of the Act at the time of the instant disposition. Thus, the Defendant's disposition of this case which approved the organization of the Intervenor's promotion committee is lawful, and the above error of the court below is not affected by the conclusion of the judgment.

2. Whether an administrative disposition is illegal shall be determined based on the law and factual state at the time when the administrative disposition was taken (see Supreme Court Decision 2007Du1811, May 11, 2007, etc.). Thus, the argument in the grounds of appeal on the premise that the illegality of the disposition in this case should be determined based on only the factual state at the time of applying for approval by the Intervenor Promotion Committee cannot be accepted

3. According to Article 13(2) of the former Act (amended by Act No. 7392 of Mar. 18, 2005; hereinafter “former Act”), where a cooperative comprised of owners of land, etc. intends to establish to implement a rearrangement project, it shall be organized with at least five members including the chairperson with consent of at least 1/2 of the owners of land, etc. and obtain approval from the head of Si/Gun. According to each subparagraph of Article 6 of the Enforcement Rule of the Act, a person who intends to obtain approval for establishment of a promotion committee shall submit an application for approval in attached Form 2 accompanied by written consent of the owners of land, etc., documents evidencing the selection of members, etc., and there are no special restrictions on the form of consent of the owners of land, etc., the chairperson of the promotion committee, and the method of selection of members. Thus, the head of Si/Gun who has received an application for approval for establishment of the promotion committee shall approve the establishment of the promotion committee, if there is consent of at least 1/2 of the owners of land, etc.

In addition, the consent form of the owner of land, etc. who is required to attach an application for approval of the promotion committee is merely data to explain the intent of the owner of land, etc. to consent to the establishment of the promotion committee, barring any special circumstance, it can be deemed that the existing promotion committee exists and the consent form for the establishment of the promotion committee is included in the consent form for the establishment of the promotion committee, and Article 3 of the work process standards for the establishment of the promotion committee of September 2, 2003 also can be replaced by the consent form submitted by the promotion committee prior to the date of entry into force of the Act. In light of the above, it is reasonable to view that the consent form for the establishment of the promotion committee delivered by the existing promotion committee from the owner of land, etc. is included in the consent form of the owner of land, etc. as stipulated in Article 6 of the Enforcement Rule of the Act.

Meanwhile, according to Article 15(2) of the Act as delegated by the Minister of Construction and Transportation, according to the “Operational Rules for Establishment Promotion Committee of Rearrangement Associations” enacted by the Ministry of Construction and Transportation Notice No. 2003-165, the owner of a plot of land, etc. shall attach one copy of his/her seal impression after affixing his/her seal impression on a specific form in which the list of the chairperson, auditors, vice-chairpersons, and promoters is pre-written consent to the establishment of the Promotion Committee. While the owner of a plot of land, etc. is required to select more than 1/10 of the owners of a plot of land, etc. from among the owners of a plot of land, etc., the promotion committee shall be selected from among the owners of a plot of land, etc., comprehensively taking into account the provisions of Article 13(2) of the former Act, Article 23(1)1 of the Enforcement Decree of the Act, and Article 6 of the Enforcement Rule of the Act does not necessarily require the Promotion Committee’s operating regulations until the approval for establishment of

According to the facts and records acknowledged by the court below, based on the disposition of this case, the intervenor is composed of at least five promoters including the chairperson of the promotion committee, and the defendant's disposition of this case that approved the establishment of the intervenor's promotion committee was lawful, since the intervenor's establishment of the intervenor's promotion committee was approved by at least 1/2 of the owners of the land, etc., and the defendant's disposition of this case is lawful. The intervenor's ground of appeal is just because the intervenor violated the form of written consent or qualification and selection method of promoters as stipulated in the operating regulations of the promotion committee that do not meet the requirements for establishment of the promotion committee. Thus,

Therefore, although the reasons cited by the court below are not somewhat insufficient, the decision of the court below that rejected the plaintiff's claim on the ground that the disposition in this case is legitimate is justified, it is not erroneous in the misapprehension of legal principles as to the legislative purport and interpretation of Article 9 of the Addenda of the Act that affects the conclusion of the judgment, or in the misapprehension of legal principles as to the composition and approval requirements of the promotion committee, or in the misapprehension

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Dai-hee (Presiding Justice)