[Defendant-Appellant] Park Jae-ju et al., Counsel for defendant-appellant-appellant

Law Firm Domin, Attorneys Jeong Jong-soo et al., Counsel for defendant-appellant

Attorney Yoon-sik et al., Counsel for defendant-appellee

The costs of appeal are assessed against the Defendant’s Intervenor, and the remainder are assessed against the Defendant.

1. As to this defense

The former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8466 of May 17, 2007; hereinafter referred to as the "former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents") obtains consent to establish an association from the owners of land or buildings located in a rearrangement zone or persons with superficies (hereinafter referred to as "owners of land, etc.") under the Housing Redevelopment and Improvement Project Act (hereinafter referred to as the "Redevelopment and Improvement of Urban Areas and Dwelling Conditions for Residents") and is established as a juristic person after filing an application for authorization to establish an association with the competent administrative agency in accordance with the requirements and procedures prescribed by the relevant Acts and subordinate statutes after obtaining authorization to establish an association from the competent administrative agency (Article 16 (1), (5), and Article 18 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents). In addition, a redevelopment association established following the above procedures has the status of administrative entity under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions within the scope of its competent administrative agency.

Therefore, a disposition to establish an association by an administrative agency based on relevant laws, such as the Act on the Maintenance of Urban Areas and Dwelling Conditions, does not merely have the nature as a supplementary act for establishing an association by a private person, but it should be deemed that it has the nature of a sort of disposition that grants the status as an administrative agent (public corporation) with authority to implement a housing redevelopment project under the Act on the Maintenance of Urban Areas and Dwelling Conditions (see Supreme Court Decision 2008Da60568, Sept. 24, 2009).

Therefore, in order to deny the validity of the redevelopment association establishment on the grounds of defects in the consent of the establishment of the association after the administrative agency's disposition of approval of establishment, it should be argued by an appeal litigation.

In light of the above legal principles, the lawsuit of this case seeking cancellation of the association establishment approval disposition of this case is legitimate on the ground that the plaintiffs, who are owners of land and others in the rearrangement zone of this case, are defective

Although the lower court’s decision was inappropriate, the conclusion that the instant lawsuit was lawful is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine as to the interest in legal proceedings in the revocation of the disposition to establish an association

2. As to whether the withdrawal of this case’s consent submitted by Plaintiff 12, etc. is valid as the withdrawal of consent to establish an association

A. Article 28(1)5 and (4) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions (amended by Presidential Decree No. 21679, Aug. 11, 2009; hereinafter the same shall apply), which provides for the method and procedure for calculating the consent to establish an association under Article 17 of the former Act, shall be excluded from the number of consenters: Provided, That where any matter under the subparagraphs of Article 26(1) is not modified, the above consent and withdrawal shall not be excluded from the number of consenters, and the above consent and withdrawal shall be accompanied by a document using a seal imprint and a certificate of personal seal impression, and there is no provision as to the party, timing, etc. of revoking the consent to establish an association.

As seen earlier, the administrative agency’s disposition of approving the establishment of an association does not merely have the nature as a supplementary act against an act of establishing the association by a private person, but also has the nature of a sort of disposition that grants the status as an administrative body (public corporation) to the redevelopment partnership. In addition, when an administrative agency that received an application for approving the establishment of a redevelopment partnership intends to decide whether to approve the establishment of the redevelopment partnership, it shall examine whether not less than 4/5 of the owners of the land, etc. consent as prescribed by the Presidential Decree (Article 16(1) of the former Act), etc., the other party to the withdrawal of consent to establish the association can be deemed to be the committee of promoters as well as the administrative agency. Furthermore, if an administrative agency receives a written withdrawal of consent to establish the association, it shall not be deemed that the withdrawal becomes effective only

B. According to the reasoning of the judgment below, the court below found facts as stated in its reasoning after compiling the adopted evidence, and found it as follows: ① the withdrawal of consent submitted by Plaintiffs 12, 17, and 18 to the Defendant includes not only the withdrawal of consent to the designation of the rearrangement zone, but also the withdrawal of consent to the establishment; ② The alteration of the proposed size of the rearrangement zone under the Seoul Special Metropolitan City Urban and Residential Environment Improvement Master Plan is made; ② the outline of the design of the building to be constructed at the time of the establishment consent; and ② the total sum of expenses incurred in removing and constructing the building; thus, the withdrawal of consent under the proviso of Article 28 (1) 5 of the Enforcement Decree of the former Act is not limited, and eventually, the above plaintiffs' consent to the establishment of the association was lawfully withdrawn; ③ as a result, if the plaintiffs 12, 17, and 18 were excluded from the number of persons consenting to the establishment, the approval of the establishment of this case was unlawful (7.52% 69/89/89).

C. In light of the aforementioned legal principles and records, although some parts of the judgment of the court below are somewhat inappropriate, the conclusion that the disposition to establish the association of this case was unlawful is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles

3. Where a redevelopment project is implemented with respect to the necessity of assessment judgment, the impact on the rights of the owners, such as land in a rearrangement zone cannot be deemed to be a grave and minor defect that failed to meet the consent rate required by the law. However, Article 16(1) of the former Urban Improvement Act was amended by Act No. 8785, Dec. 21, 2007; it was changed that the consent of at least 3/4 of the owners of the land should be obtained only by establishing an association; and the revocation of the approval to establish an association of this case cannot be deemed to be significantly inappropriate for public welfare on the sole basis of the fact that a large number of time and expenses are spent to obtain the authorization to establish an association. Therefore, the lower court’s dismissal of the Plaintiffs’ claim ex officio cannot be deemed to be erroneous

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the intervenor association and the remaining costs are assessed against the defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-young

Justices Kim Gi-hwan

Justices Min Il-young