1. The lower court asserted the right to claim a transfer registration of ownership arising from the exercise of the right to claim a sale against the debtor on the premise that the disposition to establish an association is valid, but it is difficult to evaluate the exercise of the right to claim a sale by the association where the disposition to authorize the establishment of an association is invalidated or legally revoked later in the disposition to establish an association. Although the disposition to authorize the establishment of an association against the creditor was not invalidated or finally revoked in a final and conclusive manner, the lower court revoked the disposition of authorization through a faithful hearing in the litigation process surrounding the lawfulness of the authorization disposition (Seoul Administrative Court Decision 2010Guhap26346 and Seoul High Court Decision 2010Nu36437, May 18, 201), and thus, the creditor’s application for a provisional disposition was revoked and dismissed by deeming that it is difficult for the creditor to recognize the preservation of the right or the need to preserve the right.

2. However, the lower court’s determination is difficult to accept for the following reasons.

Even if there is an amendment to the “association articles of association” among the matters included in the written consent submitted at the time of applying for authorization to establish an association, the consent shall remain effective, unless the owner of the land, etc. who consented to the establishment of the association and submitted a written consent fails to withdraw consent in accordance with the procedure, such as the time and method of withdrawal of consent as prescribed by Article 28(4) and (5) of the former Enforcement Decree of the Act on the Maintenance of Urban and Residential Environments (amended by Presidential Decree No. 22151, May 4, 2010). Even if the contents of the draft articles of association prepared by the promotion committee were changed to its inaugural general meeting, it is sufficient to examine whether the association is approved only with the consent of the owner, such as the land submitted at the time of applying for authorization to establish an association (see

According to the reasoning of the order of the court below and the record, ① a creditor association establishment promotion committee delivers a guide book for the establishment of the association, including the draft articles of association, to 808 persons (48 persons among 66 owners of commercial buildings) among 952 owners of the land, etc. in the instant business area, and received legitimate consent for the establishment of the association from 808 persons (48 persons among 66 owners of commercial buildings). ② After that, the promotion committee prepared a draft of the articles of association to revise some of the draft articles of association, and subsequently held an inaugural general meeting on April 4, 2010 to present the "case of confirmation of the articles of association" as to the draft articles of association after amendment, and ③ the promotion committee obtained approval for the establishment of the association from the head of Gangdong-gu Seoul Metropolitan Government upon application for the establishment of the association with the draft of the amended articles of association attached to the written consent for the establishment of the land, etc. < Amended by Act No. 12273, Jan. 16, 2014>

Examining these facts in light of the legal principles as seen earlier, it is difficult to readily conclude that there is any defect falling under the grounds for revocation in the disposition taken by the head of Gangdong-gu Seoul Metropolitan Government, which approved the establishment of a creditor association by deeming that the consent of the promotion committee is valid

Nevertheless, the court below held that the exercise of the creditor's right to demand sale against the debtor cannot be deemed unlawful solely on the ground that the head of Gangdong-gu Seoul Metropolitan Government rendered a judgment of fact-finding that there was a defect in the disposition authorizing the establishment of the creditor association. Thus, the court below erred in the misapprehension of legal principles as to the defects in the disposition approving the establishment of the association or the consent and withdrawal of the association, which affected the conclusion of the judgment.

3. Therefore, the order of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)