[2] In a case where Party B et al., the real estate owner of Party B et al. in the business zone of Party B et al. did not perform the obligation to deliver real estate against Party B et al. while disputing the validity of the disposition to establish an association, the case holding that the judgment below erred by misapprehending the legal principles on the part of Party B et al., on the ground that Party B et al. was not liable

[2] In a case where Party B et al., the real estate owner of Party B et al. in the business zone of Party B et al. did not perform the obligation to deliver real estate against Party A et al. while disputing the validity of the disposition to establish an association, the case holding that the court below erred in the misapprehension of legal principles in holding otherwise, even if Party B et al. refused to perform the obligation to deliver real estate due to erroneous legal judgment on the ground that Party B et al. did not have any justifiable reason to believe that Party

1. In a claim for damages due to nonperformance, if the obligor does not perform the obligation in accordance with the terms and conditions of the established obligation, it itself is deemed unlawful (see Supreme Court Decision 2000Da47361, Dec. 27, 2002). However, in a case where the obligor’s intention or negligence is not caused by nonperformance, the obligor is not liable for damages (see Article 390 of the Civil Act).

Meanwhile, in a case where a debtor believed that he/she was not liable and there is a justifiable reason to believe that he/she was not liable, it may be deemed that the debtor does not have intention or negligence on the part of the debtor. However, even if the debtor asserted it through a lawsuit with the belief that he/she was not liable through a legal judgment on the cause or existence of the obligation and refused to perform the obligation, if such legal judgment of the debtor was erroneous, barring any special circumstance, it cannot be said that

2. The lower court determined that: (a) the Defendants’ act of this case was 45,817 square meters for the establishment of the Plaintiff’s establishment of the Plaintiff’s association on the ground that the Plaintiff’s establishment of the Plaintiff’s establishment of the Plaintiff’s establishment was 1 and 40 square meters for the purpose of implementing the housing redevelopment project; (b) the Defendants were the owners of each of the instant real estate located within the business area; and (c) the Defendants’ act was 427 of the Plaintiff’s establishment consent on January 19, 207; and (d) the Plaintiff’s act was 15,000 square meters for the Plaintiff’s establishment of the Plaintiff’s establishment of the Plaintiff’s establishment of the Plaintiff’s association on the ground that the Plaintiff’s establishment of the Plaintiff’s establishment of the Plaintiff’s establishment of the Plaintiff’s establishment of the Plaintiff’s 1 and the Plaintiff’s establishment of the Plaintiff’s establishment of the Plaintiff’s establishment of the Plaintiff’s 1 and the Plaintiff’s 2’s establishment of the Plaintiff’s association.

3. However, it is difficult to accept such a determination by the lower court for the following reasons.

Article 49(3) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9729 of May 27, 2009) provides that "the head of a Si/Gun shall, when he/she approves a management and disposal plan pursuant to the provisions of paragraph (2), publicly announce the details thereof in the official bulletin of the relevant local government." The main text of Article 49(6) provides that "when a public announcement is made pursuant to the provisions of paragraph (3), the owner, superficies, leasee, right holder, etc. of the previous land or building shall not use or profit from the previous land or building until the public announcement is made pursuant to the provisions of Article 54." If the public announcement of the approval of a management and disposal plan is made pursuant to these provisions, the use or profit-making of the previous owner, etc. of the subject matter is suspended, so the project implementer may use or profit from the subject matter without any separate procedure for expropriation or use (see Supreme Court Decision 2009Da28394, Nov. 24,

In addition, the association's project implementer in the housing redevelopment project is established by the authorization and registration of the association establishment of the competent administrative agency, and the association establishment resolution is merely a procedural requirement required for the administrative disposition of the association establishment approval, and even if there is a defect in the association establishment resolution, the association's still has the status as a project implementer as long as the association establishment disposition is revoked or is not void automatically (see Supreme Court Decision 2009Da10881, Apr. 8, 2010).

According to the reasoning of the judgment below, since the plaintiff received the disposition of the administrative disposition plan of this case from the head of Seoul Central District Office on June 26, 2008 and notified the approval disposition, the defendants, the owner of each real estate of this case, are obligated to comply with the plaintiff's request for extradition, unless there are special circumstances such as that the disposition of the administrative disposition plan of this case becomes null and void or cancelled automatically. In addition, Article 10 (1) 7 of the plaintiff's articles of association provides that "the obligation to remove and move through the project implementation plan" as a partner's obligation, the defendants, the

Meanwhile, according to the reasoning of the judgment below and the record, there is a defect in the instant written consent at the time of the establishment resolution of this case without stating the "estimated amount of expenses for removal of buildings and construction of new structures". However, in light of the circumstances such as the "estimated amount of expenses for removal of buildings and construction of new structures" in the written consent submitted by the Plaintiff at the time of the Plaintiff’s application for establishment approval, etc., the instant written consent cannot be deemed as serious and apparent defects in the instant disposition for establishment approval of the association, and thus, the instant disposition for establishment approval of this case and its related administrative disposition disposition cannot be deemed as null and void as a matter of course. In addition, the defect in the instant disposition for establishment approval of the association, management and disposal plan of this case, which the Defendants are internal, cannot be deemed as a ground to deem as null and void as a matter of course. The administrative litigation seeking nullification of the disposition for establishment approval of the association of this case filed by Defendant 1, etc. against the head of the Jung-gu

Therefore, even if the Defendants believe that they did not have the duty to deliver each real estate of this case due to erroneous legal judgment and refused to perform their duty, there is no justifiable reason to believe that the Defendants did not have the duty to deliver the real estate of this case, and therefore, the Defendants cannot be deemed to have no intention or negligence with respect to the nonperformance of the duty

Nevertheless, the lower court determined that the Defendants were not liable for nonperformance of the duty to deliver each of the instant real estate on the grounds indicated in its holding. In so doing, the lower court erred by misapprehending the legal doctrine on liability for damages caused by nonperformance of obligation, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)