Plaintiffs △△, Kim △△, and △△△△

Defendant 1. to 22., from 24. to 32, from 34. to 55., and 57. △△△ Law Firm

[Defendant-Appellee]

2. The costs of lawsuit are assessed against the plaintiffs.

C. The amount shall be paid at the rate of 20% per annum from the date of full payment.

A. The head of Nowon-gu Seoul Metropolitan Government Housing Redevelopment and Improvement Project Association (hereinafter referred to as the “instant association”) is a cooperative established pursuant to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the “Urban Improvement Act”), and both the Plaintiffs and the Defendants are partners of the said association for the purpose of improving the rearrangement project (hereinafter referred to as the “instant project”).

B. On July 8, 201, the instant association entered into a contract for construction and loan for consumption (hereinafter “instant contract”) with B Industry Co., Ltd. (hereinafter “B”) on July 8, 201 to promote the instant project. B leased KRW 3,058,359,025 in total to the said association as the operating expenses of the association. Pursuant to the application for dissolution of the association with the majority of the owners of the land, etc. in the instant project improvement zone (Article 16-2(1)2(1) of the Urban Improvement Act), the association’s authorization was revoked and the instant project was de facto omitted, the Plaintiff’s property owned by each of the executives of the instant association, who were joint and several debt obligations under the instant contract, was provisionally seized to preserve the said loan claims.

C. At the date of the closing of argument in the instant case, the instant association is in the insolvent status exceeding the debt with no specific property, in addition to the debt borrowed from the above loan to the B industry.

[Reasons for Recognition] A’s application for dissolution of an association with the consent of a majority of the owners of land, etc. or with the consent of a majority of the owners of the land, etc. within the scope of not less than 1/2 to not more than 2/3 of the union members who have consented to the establishment of the association of the association, as set forth in the ordinance of a Si/Do

2. Judgment on whether to transfer to the administrative court

The plaintiffs asserted that since the right to claim the apportionment of project cost, which is exercised against the Defendants, who are members of the association in subrogation of the association of this case, is a public law right, the lawsuit of this case is a party suit under public law and should be transferred to

Even in cases where the relationship between the redevelopment association and the association members under the Act on the Improvement of Urban Areas and Dwelling Conditions is a matter of public law, it cannot be uniformly deemed as a matter of public law. In cases where a person who becomes a person subject to cash settlement by failing to apply for parcelling-out or withdrawing an application for parcelling-out, etc. files a lawsuit against the association for the payment of settlement money mutually agreed upon by consultation (see Supreme Court Decision 2014Du39593, Jul. 23, 2015, etc.). Except as otherwise provided in special provisions, the maintenance project cost is in principle borne by the project implementer (Article 60(1) of the Act), and as delineated later, in order to impose and collect dues from the association members pursuant to Article 61(1) of the Act, matters concerning the collection of dues by private autonomy, such as a resolution at the general meeting of the association members or an agreement between the association and the association members, etc. It constitutes a civil lawsuit.

Therefore, the application for transfer by the prior plaintiffs should not be accepted on different premise.

3. Determination as to the cause of action

A. The plaintiffs' assertion 1) As long as the association of this case has the due date for the repayment of the amount borrowed under the joint and several guarantee of each of the plaintiffs under the contract of this case from B industry, the plaintiffs, the principal debtor, have the prior right to reimbursement under Article 442 (1) 4 of the Civil Code against the association of this case. To preserve this, the rights to claim the return of each of the costs to the defendants of the association of this case which

2) In the opposite interpretation of Article 24(3)5 of the Urban Improvement Act, a contract that becomes a partner, other than the matters prescribed in the budget, shall be subject to a resolution of the general meeting to bear expenses, as a matter of course, regardless of the result of the general meeting’s resolution. In light of the interpretation of Article 10(1)6 of the association’s articles of association that provides for the obligations to pay expenses, such as expenses for rearrangement projects, liquidation money, dues, etc. of the union members, the interpretation of Article 33 subparag. 4 of the above articles of association that specifies loans raised by the union from the contractor through financing methods for the implementation of the project of this case, and the practical necessity for the settlement of burial expenses following the dissolution of the association of this case, the association of this case has the right to claim

B. Determination

1) Requirements for subrogation, such as the existence of preserved claims

Upon revocation of authorization for the establishment of the instant association on January 16, 2014, the following facts are based on the facts: (a) the Plaintiff’s property was provisionally seized as the claim for the loan; and (b) the overall purport of the arguments from the aforementioned evidence is as follows: (c) the agreement may be terminated where the association objectively determines that the purpose of the agreement cannot be achieved in violation of the terms and conditions of the contract in a construction contract entered into with a money loan contract; (d) the association shall settle all business expenses, etc. borrowed from the B industry without delay (Article 34(3)); and (e) it is reasonable to deem that the above loan obligation to the instant association for the B industry has arrived due to the loss of interest arising from the termination of the contract at each time of the provisional seizure. Therefore, the Plaintiffs, a joint guarantor, can exercise a prior right to indemnity under Article 442(1)4 of the Civil Act against the instant association, which is the principal debtor, and as seen earlier, can be seen as the existence of the insolvent claim at present.

In full view of the reasoning of the evidence revealed above, Article 10(1) of the Union’s articles of association of this case provides for the rights and obligations of the union members under subparagraph 6 thereof, and provides for the liability to pay expenses, such as the improvement project cost, liquidation amount, dues, arrears and losses from delay (including delay of relocation, delay of contract, delay of dispute between union members, etc.). Meanwhile, Article 33 of the above articles of association provides for the methods of raising funds for the operation of the union and the implementation of the project, and provides for the "loans raised by the union from financial institutions and the contractor, etc." Thus, the Defendants, a union member, are liable to pay charges or charges to the union of this case.

However, the articles of association of the association of this case merely regulates the internal relations of the association, and it is not immediately deemed that the association members bear specific obligations against the association pursuant to the articles of association. In light of the provisions of Articles 24(3)2, 60(1), and 61(1) and (3) of the Urban Improvement Act, and the contents and purport of the articles of association of the association of this case, it is reasonable to view that how the association members, a public corporation, share the obligations of the association of this case, should be determined by settling accounts with the assets and liabilities of the association in the general meeting of the association members, and the resolution to share them to the association members is made only when the association members agreed to pay the amount after settling accounts with the assets and liabilities of the association of this case, and if such resolution is not followed, the obligations of the association of this case for the association of this case cannot be deemed to have been actually incurred (see Supreme Court Decision 98Da18414, Oct. 27, 199).

Although the instant union has a claim for expenses, charges, etc. against its members, there is no way to enforce the resolution of the general meeting, which is an internal decision-making procedure, and if the general meeting of its members does not make any decision or refuses to pay the expenses, there is no way to relieve creditors, and thus, a claim can be filed in subrogation of the instant association without the resolution of the general meeting of its members. However, the Plaintiffs’ assertion that the Defendants may claim in subrogation of the instant association without the resolution of the general meeting of its members cannot be deemed to equally bear specific and conclusive obligations against the instant union without the resolution of the general meeting of its members (see, e.g., Supreme Court Decision 2014Da65748, Jan. 15, 2015).

Therefore, the plaintiffs' assertion based on this premise is without merit.

4. Conclusion

Therefore, the plaintiffs' claims against the defendants of this case are without merit, and all of them are dismissed. It is so decided as per Disposition.

Judges Kim Gin-han

Judges Kim Gin-han