[2] In a case where the appellate court examines a civil suit which should have been filed by an appeal suit and at the same time, has the legal ground of jurisdiction of an appeal suit in the first instance court, the disposition of violation

[2] Even if a lawsuit which should have been filed by an appeal suit was filed by a civil suit, if the appellate court has jurisdiction over an appeal suit at the same time, the case shall be examined and determined as the court of first instance in respect of the remedy of party's rights or the economy of litigation.

1. According to the relevant provisions of the former Urban Redevelopment Act (amended by Act No. 5116 of Dec. 29, 195; hereinafter referred to as the "Act"), the developer shall execute the redevelopment project according to the conditions as prescribed by the Act for the rational and efficient use of the land within the redevelopment area designated by the Minister of Construction and Transportation, the rearrangement of the site, the development of the site, and the maintenance of the public facilities, and the projects incidental thereto (Article 2 subparagraph 2 of the Act) separately from the urban redevelopment project within the redevelopment area and the housing improvement redevelopment project (Article 6 of the Act). In principle, the developer of the redevelopment project or the redevelopment association established by the Minister of Construction and Transportation (hereinafter referred to as the "association"), after the determination of the redevelopment project plan within the redevelopment area, shall have the owner of the land or the owner of the land within the redevelopment area (hereinafter referred to as the "construction project"), and if there is an obligation of the developer to submit the land to the new redevelopment project or the owner of the land within the redevelopment area, it shall be recognized as necessary for the construction project to be implemented (Article 9 through 111).

In light of the purpose of the association's establishment, the nature, authority and obligation of the association, the nature and content of the redevelopment project, the procedure and contents of the management and disposal plan, etc., the association is in the relation of rights and obligations under public law within the scope that it can be seen that it is engaged in specific public affairs which are the purpose of existence under the supervision of the state at least in the legal relations with its members.

Therefore, in a lawsuit against a cooperative, in a case where there is a dispute as to the recognition of a partner's qualification with characteristic of compulsory subscription system, there is no room to intervene in any disposition, etc. at that stage, and thus, it is possible to seek confirmation of a partner's qualification by a party lawsuit under public law. Meanwhile, in a case where there is a dispute over the contents of a management and disposition plan determined after the application for parcelling-out, the management and disposition plan has a specific and conclusive influence on the owner of the land, etc., and thus, can seek cancellation of the management and disposition plan or the disposition of refusal of parcelling-out, which is its contents. Even if the member's qualification is recognized, if the association does not file an application for parcelling-out or want to parcel out, it shall be liquidated in money (Article 4 of the Act). Thus, the association's application for parcelling-out by the owner of land, etc. who wishes to acquire the right to parcel out land or constructed facilities is not the object of parcelling-out, and it shall not be immediately permitted to seek confirmation of the ownership of land, etc. as a civil lawsuit or public law.

In the previous case, to the effect that a party member can seek confirmation of the partner qualification or the right to sell shares, etc. against the partnership under the civil procedure, the opinion of the party member (see, e.g., Supreme Court Decisions 91Da33247, Apr. 14, 1992; 92Da2042, May 26, 1992; 92Da23599, Dec. 11, 1992; 93Da3217, Dec. 28, 1993; 93Da39812, Mar. 8, 1994; 93Da40249, Jun. 28, 1994; 94Da37431, Dec. 27, 1994) shall be amended by a judgment.

2. The court below rejected the lawsuit of this case, which the plaintiff sought the confirmation of the right to sell the apartment of this case, which is the content of the management disposition plan or the appeal lawsuit seeking the revocation of the right to sell the apartment of this case against the defendant, on the ground that the defendant did not correspond to the person subject to the management disposition plan as to the plaintiff's application for the sale of the apartment of this case as a member of the association, and determined the management disposition plan as to the plaintiff's application for the sale of the apartment of this case except for this, and the plaintiff's right to sell the apartment of this case as a member of the association, on the ground that it cannot be claimed the confirmation of the right to sell the apartment of this case as a civil lawsuit, and therefore,

However, even if the lawsuit of this case should have been filed as an appeal litigation, the court below should have jurisdiction over the appeal litigation at the same time, and thus, the court below should have deliberated and judged the case as the first instance court on the appeal litigation in terms of the remedy of party rights and the economy of litigation, but should have tried and judged the case, it cannot be said that the court below's decision that dismissed the lawsuit of this

3. Therefore, the judgment 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.

Chief Justice Yoon-young (Presiding Justice) (Presiding Justice)