[2] The method of resolution of the inaugural general meeting of a reconstruction association established under the former Housing Construction Promotion Act and the scope of sectional owners to be included in the number of members for calculating the quorum

[3] The case affirming the judgment of the court below which held that the quorum of the inaugural general meeting of the reconstruction association does not have to reach the majority of the total sectional owners, on the ground that it is possible for other sectional owners to join the reconstruction association with the entity of the non-corporate association first after the establishment of the reconstruction association with the entity of the non-corporate association by consenting to the association regulations, etc.

[4] In the case of a reconstruction association which has not yet obtained authorization for its establishment, whether a member can withdraw at will from the association (affirmative with qualification)

[5] In a case where the first meeting of the management body failed to meet the quorum required for reconstruction at the meeting, but thereafter the sectional owners have a quorum for reconstruction resolution by separately submitting a written consent to the rebuilding in the process of rebuilding promotion (affirmative), whether such written resolution is valid as a rebuilding resolution (affirmative)

[6] The method of determining the estimated amount of expenses required for the removal of a building and the construction of a new building under Article 47 (3) of the Act on the Ownership and Management of Aggregate Buildings and the matters concerning its apportionment

[7] In the case of "Peremptory" under Article 48 (1) of the Act on the Ownership and Management of Aggregate Buildings, where the matters of the rebuilding resolution are widely known to the highest subject in the rebuilding promotion process, and the highest subject is fully given an opportunity to participate in the rebuilding, whether the highest subject is legitimate (affirmative)

[2] A reconstruction association established under the former Housing Construction Promotion Act (amended by Act No. 6852 of Dec. 30, 2002) applies mutatis mutandis in principle to a non-corporate body under the Civil Act, with the exception of the provisions premised on corporate personality. Thus, the general meeting of the above association can adopt a valid resolution with the attendance of a majority of the members and the majority of the members present at the meeting pursuant to Article 75(1) of the Civil Act. In this case, in calculating the number of the members for the purpose of calculating the number of the opening quorum, all the sectional owners in the zone subject to reconstruction project, which are qualified as members of the reconstruction association, are not naturally members, but only those sectional owners who expressed their intent to join the association with the rebuilding agreement, shall be calculated as members of the reconstruction association.

[3] The case affirming the judgment of the court below that the quorum of the inaugural general meeting of the reconstruction association does not have to reach the majority of all sectional owners on the ground that it is possible for other sectional owners to join the reconstruction association with the substance of the non-corporate association first after establishing the reconstruction association with the majority of all sectional owners, and even if the number of members falls short of the majority of all sectional owners at the time of the establishment of the reconstruction association, other sectional owners shall not reach the majority of all sectional owners

[4] A member of a reconstruction association which has obtained authorization for establishment cannot withdraw from the association at will unless there is an inevitable reason. However, in the case of a reconstruction association which has not yet obtained authorization for establishment, a member may withdraw from the association at will before obtaining such authorization, unless there is a provision not to allow the withdrawal of a member in the articles of association, etc.

[5] Although the initial invalid rebuilding resolution cannot be valid as an additional consent to the rebuilding of some sectional owners thereafter, whether to consent to the rebuilding can not be easily determined by sectional owners, and even if the written consent is not enforced, in light of the fact that in the case of reconstruction through the establishment of a reconstruction association as a non-corporate group, in practice, a written consent is expressed in writing. Whether there was an effective rebuilding resolution is not necessarily limited to the first resolution at the managing body's meeting, even though the consent at the initial managing body's meeting fails to meet the quorum necessary for rebuilding, it does not necessarily necessarily mean that the first resolution at the managing body's meeting does not necessarily have to be limited to the resolution at the managing body's meeting, and if the sectional owners meet the quorum of the rebuilding resolution by separately submitting the written consent to the rebuilding in the process of the rebuilding promotion, the resolution at the managing body's meeting should be deemed valid, separate from the resolution at the managing body's meeting's meeting, and there is no need to convene and hold a separate resolution.

[6] According to Article 47(3) of the Act on the Ownership and Management of Aggregate Buildings, when a resolution for re-building is adopted, matters concerning the estimated amount and apportionment of expenses incurred in the removal of the building and construction of the new building shall be determined. The matters concerning the estimated amount and apportionment of rebuilding expenses shall be the standard for the sectional owners to choose whether to participate in re-building or not to participate in the sale of sectional ownership in accordance with the market price or not to participate in the re-building. Thus, the method of determining the estimated amount and apportionment of rebuilding expenses shall not be omitted in the re-building resolution, but it shall be sufficient to determine the amount and standard to the extent that it may not be agreed again at the stage of the execution of

[7] According to Article 48 of the Act on the Ownership and Management of Aggregate Buildings, the peremptory notice in writing must be required to exercise the right to demand sale against the sectional owners who do not agree with the rebuilding resolution. This is intended to determine whether the sectional owners who received the peremptory notice will participate in the rebuilding after examining the specific matters of the rebuilding resolution. Therefore, the matters of the rebuilding resolution must be specified in detail. However, if such matters are widely known to the highest subject through the resolution of the general meeting or the invitation or use of the type of the rebuilding in the process of implementing the rebuilding project, and if such matters were sufficiently provided an opportunity for participation in the rebuilding as they are known through assertion or proof during the process of proceeding, the peremptory notice for participation is legitimate even if the matters of rebuilding resolution were omitted.

1. As to the misapprehension of legal principles as to the subject of rebuilding resolution and inaugural general meeting (ground of appeal No. 1)

In a case where a sectional owner of an aggregate building holds an assembly for a rebuilding resolution under Article 47 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter "the Act") and an inaugural general meeting for the establishment of a reconstruction association under Article 44 of the former Housing Construction Promotion Act (amended by Act No. 6852, Dec. 30, 2002; hereinafter "the Housing Promotion Act") in the course of a reconstruction project in the course of a reconstruction project by a sectional owner of an aggregate building in the course of a reconstruction project, even if an inaugural general meeting for the establishment of a reconstruction association is held, the resolution is legally divided into one rebuilding resolution made by the management body meeting organized by each building and one reconstruction association as a member of each sectional owner. Since a rebuilding resolution does not constitute a part of the establishment of a reconstruction association, even if the rebuilding resolution is null and void as a result, it cannot be said that the resolution is naturally null and void until the inaugural general meeting for the establishment of a reconstruction association (see Supreme Court Decision 2005Da21036, Jul. 8, 2005).

In this case, it is obvious that the plaintiff union did not meet the requirements for convening a management body meeting under the Aggregate Buildings Act at the time of the inaugural general meeting on February 18, 2001, the court below's decision is just in accordance with the above legal principles as to whether the resolution of the inaugural general meeting for the establishment of the plaintiff union is valid, independent of whether it is defective as a management body meeting's existence or not, and there is no error in the misapprehension of legal principles

2. As to the misapprehension of legal principle as to the convening procedure of the inaugural general meeting (ground of appeal No. 2)

According to the reasoning of the judgment below, the court below acknowledged that the non-party to the sectional owner of the apartment of this case, who was subject to reconstruction, organized the preparatory committee of the inaugural general meeting for the establishment of a reconstruction association, and notified each sectional owner of the date, place, and agenda of resolution of the inaugural general meeting in the name of the preparatory committee, and notified each sectional owner of the fact. In light of the above, it is difficult to view that there are any defects in the convocation authority or convocation procedure of the inaugural general meeting of the Plaintiff association in relation to the convocation procedure of the inaugural general meeting for the establishment of a reconstruction association. In light of the above, the above measures of the court below are just, and there is no specific provision regulating the convocation procedure of the inaugural general meeting, and there is no error of law by misunderstanding

Furthermore, even though the Doro apartment reconstruction association (hereinafter “former association”) was not established for reconstruction of the apartment of this case before the establishment of the Plaintiff association, but it continued to exist as a non-corporate association with substantial substance, in light of the records, it is reasonable to view the Plaintiff association as a separate association, not the same association whose name and representative are changed while maintaining its continuity with the former association, but the members of the former association were newly organized by withdrawing from the former association. Thus, even if the inaugural general meeting of the Plaintiff association did not comply with the procedures for convening a general meeting prescribed by the regulations of the former association, there is no defect in the procedure.

The Supreme Court Decision cited by the Defendants in the supplemental appellate brief is inappropriate as it differs from the instant case.

3. As to the misapprehension of legal principles as to the quorum and written resolution at the inaugural general meeting (ground of appeal Nos. 3 and 4-b)

A reconstruction association established under the Jeju Promotion Act is a non-corporate body under the Civil Act, and in principle, the provisions except for the provisions premised on the legal personality among the provisions on the legal entity under the Civil Act shall apply mutatis mutandis (see Supreme Court Decision 95Da56866, Oct. 25, 1996). Thus, the general meeting of the Plaintiff’s association may adopt a valid resolution with the attendance of a majority of the members and the majority of the right to vote of the members present at the meeting pursuant to Article 75(1) of the Civil Act. In this case, in calculating the number of the members for the purpose of calculating the number of the opening quorum, all the sectional owners in the zone subject to the reconstruction project, which are qualified as the members of the reconstruction association, shall not be considered as the members of the reconstruction association, and only

In the same purport, the court below held that among total 2,499 of the sectional owners of the apartment of this case, 1,373 members present at the inaugural general meeting compiled by the plaintiff association among the total 2,49 members, and among them, 813 members who did not attend the meeting raised by the defendants regarding the qualification of substitute participants or the submission of written resolution, etc., the above 813 members are naturally excluded from the opening of the inaugural general meeting, so their attendance does not affect the validity of the resolution of the inaugural general meeting of this case. The reconstruction association can not be established only after the first establishment of the reconstruction association, and even if the number of members falls short of the majority of the total sectional owners at the time of the establishment of the reconstruction association, it is possible for other sectional owners to establish the reconstruction association with the substance of the non-corporate association with consent to the association regulations, etc., and therefore, it is just to reject the defendants' assertion that the resolution of the inaugural general meeting of this case should reach the majority of the total quorum, and contrary to the allegations in the grounds for appeal or the general meeting.

4. As to the misapprehension of legal principle as to a quorum (ground of appeal No. 4-c.)

According to the reasoning of the judgment below, the court below determined that the resolution cannot be deemed null and void merely because it did not aggregate the number of supporting members in detail, after the chairperson adopted a resolution on the draft of the rules at the inaugural general meeting of the Plaintiff Union, which was approved by the majority of the members, and confirmed that the resolution was passed by the majority, which was approved by the majority of the members, and the dissenting opinion was approved by the majority.

In light of the circumstances cited by the court below and the fact that the union members present at the time of declaring the resolution of the draft agreement and there was no opposing opinion, the above decision of the court below is just and acceptable, and there is no error of law by misunderstanding the legal principles as to the quorum of the general meeting.

5. As to the misapprehension of legal principles as to the establishment of a overlapping association, withdrawal of a reconstruction association members, and violation of the rules of experience and rules of evidence (ground of appeal No.

Members of a reconstruction association which has obtained authorization for establishment cannot withdraw from the association at will unless there is any inevitable reason (see Supreme Court Decision 96Da23887 delivered on May 30, 1997). However, in cases of a reconstruction association which has not yet obtained authorization for establishment, members of the association can withdraw from the association at will before obtaining authorization unless there is a provision not to allow the withdrawal of association members in the articles of association, etc. (see Supreme Court Decision 2000Da20052 delivered on October 27, 200).

According to the reasoning of the judgment below, the court below held that the members of the Gu association are allowed to withdraw from the Gu association at will due to exceptional circumstances where it can be deemed that it is substantially difficult to expect the achievement of the purpose of the reconstruction project because the former association could be seen that the members of the association voluntarily withdraw from the Gu association, and considering the circumstances acknowledged by the evidence in this case, it is reasonable to view that the members of the association were lawfully withdrawing from the Gu association in accordance with the above legal principles and legitimate fact-finding. In light of the records, the court below's measures are acceptable as a result of the above legal principles and legitimate fact-finding, and there were no errors in the misapprehension of the legal principles as to the withdrawal of the rebuilding association members or in the misapprehension of the rules of evidence or in the misapprehension of the rules of evidence, or in the misapprehension of the principle of pleading or in the misapprehension of the rules of evidence.

In addition, as seen above, the plaintiff union cannot be viewed as the same union as the former union because the union members who lawfully withdrawn from the former union were newly organized. Therefore, the judgment below did not err in the misapprehension of legal principles as to the establishment of the overlapping union.

6. As to the misapprehension of legal principles as to the correction of defects in rebuilding resolution (ground of appeal No. 7)

In light of the fact that the initial invalid rebuilding resolution cannot be effective as an additional consent to the rebuilding of some sectional owners thereafter, as alleged in the grounds of appeal, but whether to consent to the rebuilding is not easily determined by sectional owners, and that in the case of rebuilding through the establishment of a reconstruction association as a non-corporate group, in practice, the expression of intent to consent to the rebuilding is made in writing, even though consent is not demanded by written consent, whether there is a valid rebuilding resolution is not always limited to the first resolution at the managing body's meeting, and even if the first consent person at the managing body's meeting fails to meet the quorum necessary for the rebuilding, if the rebuilding resolution becomes effective by separately submitting a written consent to the rebuilding in the process of the rebuilding promotion, the resolution at the managing body's meeting should be deemed valid, separate from the resolution at the managing body's meeting, and there is no need to convene and hold a separate resolution at the managing body's meeting (see, e.g., Supreme Court Decision 9Da45275, Aug. 20, 199; 205Da57547575, May 25, 2007

According to the reasoning of the judgment below, the court below held on February 18, 2001 that there is no evidence to acknowledge that there was an agreement of all sectional owners and absolute majority of voting rights in each building or housing complex under Article 47 (2) of the Aggregate Buildings Act at the time of the inaugural general meeting of the plaintiff association, or Article 44-3 (7) of the Liquor Act at the time of the inaugural general meeting of the plaintiff association, and therefore there is no valid rebuilding resolution because it does not meet the quorum at that time. However, even after the rebuilding resolution of the general meeting of the plaintiff association, the plaintiff association obtained a written consent to the rebuilding resolution individually from those who do not participate in the general meeting after the rebuilding resolution of the general meeting of the general meeting of the plaintiff association, and therefore, it must be deemed that a legitimate rebuilding resolution was established at the above point of time. The above fact-finding and decision of the court below did not mean that the above inaugural general meeting was cured without the quorum of the rebuilding resolution by continuous accumulation of consent until March 23, 2001, and there was no error in the above legal principles as to view that the rebuilding resolution newly satisfied.

7. As to the violation of the rules of evidence concerning the alteration of the date of preparing a rebuilding resolution (ground of appeal No. 8)

In light of the records, the court below's rejection of the defendants' claims that the date of preparation of a partial rebuilding resolution submitted to the Gangnam-gu Office was modified due to the lack of evidence, is just, and there is no violation of the rules of evidence or misconception of facts as alleged in the grounds of appeal.

8. As to the misapprehension of legal principle as to the contents of rebuilding resolution (ground of appeal No. 5)

According to Article 47 (3) of the Aggregate Buildings Act, when a resolution for reconstruction is adopted, matters concerning the estimated amount of expenses incurred in the removal of the building and construction of the new building and the apportionment thereof shall be determined. The matters concerning the estimated amount of expenses for reconstruction and the apportionment thereof shall be the basis for the sectional owners to choose whether to participate in reconstruction or not in the sale of sectional ownership, etc. and not to participate in reconstruction at the market price. Thus, it shall not be omitted in the resolution for reconstruction. However, the method for determining the amount shall be sufficient to determine the apportionment or standard to the extent that it may not be agreed again at the stage of the implementation of reconstruction (see Supreme Court Decisions 2003Da62781, Mar. 11, 2004; 2003Da5455, Jun. 24, 2005, etc.).

According to the reasoning of the lower judgment, the lower court determined that the rebuilding resolution of the Plaintiff Union, as stated in its reasoning, is valid in full view of the following: (a) comprehensively taking account of the following: (b) the draft of the business plan attached to each sectional owner who was distributed to the sectional owner prior to the inaugural general meeting, as well as the detailed contents related to the estimated amount of rebuilding costs, the estimated amount of rebuilding costs, and the apportionment standards, which the Plaintiff Union submitted from each sectional owner, submitted by the Plaintiff Union; and (c) the rebuilding is not easy to unify opinions due to a wide range of interests; and (d) the modification of the implementation plan or more concrete in the process of its implementation; and

In light of the records, the judgment of the court below is justified in light of the legal principles as seen earlier, and the above determination of the court below is justified in light of the following facts: construction expenses, supervision expenses, safety diagnosis expenses, seal construction expenses, association operation expenses, accounts, general affairs, registration expenses, registration expenses, appraisal expenses, authorization expenses, authorization expenses, value-added tax, reserve fund, etc. as the item items and the estimated amount are determined by the calculation method and the estimated amount; the standard form of calculation for calculation of contributions by each union member is specified; the association member's estimated cost share is separately indicated to 10,000 won; and the principle of apportionment of expenses is separately defined for commercial buildings; and it is not erroneous in the misapprehension of legal principles as to the estimated amount of expenses necessary for the legitimate rebuilding resolution or the specific extent of apportionment of expenses, as alleged in the grounds for appeal by the defendants.

9. As to the misapprehension of legal principle as to the method of peremptory notice (Ground of appeal No. 9)

According to Article 48 of the Aggregate Buildings Act, a peremptory notice under the premise to exercise the right to demand sale against the sectional owners who do not agree with the rebuilding resolution must be given in writing. This is to ensure that the sectional owners who received the highest notice review the specific matters of the rebuilding resolution and determine whether to participate in the rebuilding. Therefore, the matters of the rebuilding resolution must be specified in detail. However, if such matters are widely known to the highest subject through the general meeting's resolution, invitation to participate in rebuilding, or paper use in the process of implementing the rebuilding project, and if such matters were sufficiently informed of the contents through assertion or proof during the proceedings of the lawsuit, the peremptory notice to participate is lawful even if the matters of the rebuilding resolution were omitted (see Supreme Court Decisions 98Da17572, Aug. 20, 199; 2003Da5455, Jun. 24, 2005, etc.).

Therefore, the court below's decision is just in accordance with the above legal principles, and there is no error of law by misunderstanding the legal principles as to the maximum method of rebuilding, as long as the defendants were given sufficient opportunity to participate in rebuilding through the plaintiff union's assertion or proof during the pleading of this case, so long as the contents of rebuilding resolution were not stated in the highest letter of notice, the defendants' maximum measure of the plaintiff union cannot be viewed as unlawful merely because the contents of rebuilding resolution were not stated.

The defendants asserted on May 11, 2001 that the plaintiff union was prohibited from joining the union by adopting a resolution to remove even if the defendants join the union as a member on May 11, 2001, even after the two-month answer period under Article 48(2) of the Aggregate Buildings Act has elapsed after the plaintiff union sent a peremptory notice on April 10, 2001. Thus, the above peremptory notice of the plaintiff union cannot be acknowledged as a legitimate peremptory notice. However, according to the records, it is obvious that the above resolution date of the plaintiff union was about May 11, 202 after the delivery of the peremptory notice, so the defendants' assertion on this part cannot be accepted.

10. Regarding misapprehension of legal principles as to market price of the claim for sale, violation of the rules of evidence, and omission of judgment (ground of appeal No. 10)

According to the principle of free evaluation of evidence under the principle of free evaluation of evidence, it is a matter belonging to the exclusive authority of the fact-finding court (see Supreme Court Decision 2001Da33048, Aug. 24, 2001). In general, considering the fact that the actual market price of reconstruction apartment formed through the real estate brokerage establishment is formed by the development gains, and the fact that the appraiser stated in the instructions of the presiding judge or appraisal report of the first instance court with respect to the appraiser is similar to the appraisal method, appraisal method, collection case, ordinary transaction in the collected actual transaction case and the appraisal of each apartment of this case, the market price of the apartment of this case recognized by the court below is the objective transaction price of the right to request sale of this case and the right to use site, and there is no reason to believe that the appraisal result is similar to the development gains, and therefore, it is acceptable for the court below to adopt the appraisal result of the first instance court to recognize the market price as just by adopting the appraisal result, and there is no violation of the rules of evidence or any error in law.

11. Conclusion

Therefore, the defendants' grounds of appeal are without merit, and all appeals are dismissed. The costs of appeal are assessed against the losing parties. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)