[주택개량재개발조합원지위확인][공1999.9.1.(89),1812]
Whether an unauthorized building is included in a building for which the owner is qualified as a cooperative member under Article 2 subparag. 4 or 20 of the former Urban Redevelopment Act (negative), and whether a redevelopment cooperative can be granted membership to an unauthorized building owner by its articles of association (affirmative)
Articles 2 subparag. 4 and 20 of the former Urban Redevelopment Act (amended by Act No. 5116 of Dec. 29, 1995) provide that the owners of land or buildings within the redevelopment area and the persons with superficies within the redevelopment area implemented by the redevelopment association shall be partners of the relevant association. In principle, an unauthorized building should be removed in accordance with the relevant Acts and subordinate statutes. It is not permissible for the owner to enjoy benefits arising from the implementation of the redevelopment project by granting the membership qualification to the owner of the building. In light of the fact that the illegal act is the result of receiving the benefits, and that there is no substantial need to regulate the construction of an unauthorized house indisrutly in the redevelopment area for the smooth implementation of the redevelopment project, the term "building for which the owner of the building is entitled to membership" under Articles 2 subparag. 4 and 20 of the same Act means a legitimate building in principle, and it does not include an unauthorized building. However, each association may determine the qualification of association members within a certain scope, depending on its circumstances or necessity.
Article 2 subparag. 4 (see current Article 8(1) and Article 20 (see current Article 14) of the former Urban Redevelopment Act (amended by Act No. 5116 of Dec. 29, 1995)
Supreme Court Decision 93Da40249 delivered on June 28, 1994 (Gong1994Ha, 2084) Supreme Court Decision 95Da43594 delivered on November 28, 1997 (Gong1998Sang, 28) Supreme Court Decision 97Nu17094 Delivered on March 27, 1998 (Gong198Sang, 125)
Plaintiff 1 and four others (Attorney Jeon Tae-tae, Counsel for the plaintiff-appellant)
Yecheon-3 District Housing Improvement and Redevelopment Cooperatives
Seoul High Court Decision 96Gu10708 delivered on January 29, 1997
All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.
We examine the grounds of appeal.
Article 2 subparag. 4 and Article 20 of the former Urban Redevelopment Act (amended by Act No. 5116 of Dec. 29, 1995; hereinafter referred to as the "Act") provides that the owners of land or buildings in the redevelopment area implemented by the redevelopment cooperative (hereinafter referred to as the "cooperative") and the persons with superficies are members of the relevant cooperative. Thus, an unauthorized building should be removed in principle by the relevant Acts and subordinate statutes, but giving the owner the qualification as a cooperative member and allowing the owner to enjoy benefits from the implementation of the redevelopment project as a result of the implementation of the redevelopment project is not permitted as a result of the illegal act. For the smooth implementation of the redevelopment project, the building which is granted the owner the qualification as a cooperative member under Articles 2 subparag. 4 and 20 of the Act means a legitimate building in principle, and it does not include an unauthorized building. However, each cooperative may determine the qualification of the owner of the building without permission within the scope of the cooperative member.
In the same purport, the court below is just in rejecting the Plaintiff’s assertion that the proviso to Article 6(2) of the Articles of association of the Defendant Union, which provides that the owner of an unauthorized building who is subject to the Seoul Special Metropolitan City Ordinance on the Compensation for Unauthorized Building Maintenance Business among unauthorized buildings, proves its ownership as its members, violates Articles 20 and 2 subparag. 4 of the Act, and thus null and void, and there is no error in the misapprehension of legal principles as argued in the above.
Therefore, all appeals are 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 on the bench.
Justices Park Jong-chul (Presiding Justice)