[2] In a case where the change of the location and area of a project zone is to be changed and expanded following the change of a rearrangement zone or improvement plan under Article 4 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, whether the consent of the previous project zone is valid with the consent of the changed project zone (affirmative in principle)

1. As to the grounds of appeal Nos. 1 and 2

A. The authorization to change the establishment of an association for a partnership project association (hereinafter “association”) is to revise, cancel, or withdraw part of the matters already authorized in the initial authorization to establish an association, or add new matters, and it has the nature of changing the contents or scope of the validity of the authority based on the initial authorization to establish an association. Therefore, in a case where the initial authorization to establish an association is revoked or invalidated by litigation, it is reasonable to interpret that the authorization to change the establishment of an association, in principle, should be invalidated or null and void. Likewise, in a case where a prior authorization to establish an association was issued several times after the initial authorization to establish an association was revoked or invalidated by litigation, the subsequent authorization to change an association should be invalidated or invalidated.

However, since a disposition to approve the establishment of an association is a disposition that establishes the authority to implement a rearrangement project, it is not different from the original disposition to approve the establishment of an association. Thus, even if the preceding disposition is revoked or invalidated by litigation, if the subsequent disposition to approve the establishment of an association meets the requirements of a new disposition to approve the establishment of an association, including the modified disposition by the preceding disposition to approve the establishment of an association, it can be recognized as effective. In such a case, the association can continue to implement the rearrangement project under the validity of the original disposition to approve the establishment of an association after meeting the requirements for

B. Article 16(2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8852, Feb. 29, 2008; hereinafter “former Act”) provides that “When a promotion committee for a housing reconstruction project intends to establish an association, it shall obtain the approval of at least 2/3 of the sectional owners and voting rights for each building within a housing complex with the approval of at least 3/4 of all sectional owners and voting rights within a housing complex, and the approval of the head of a Si/Gun with the approval of a new improvement plan (amended by Presidential Decree No. 2035, Feb. 29, 2008; hereinafter “former Act”).” Paragraph (3) provides that “When it intends to modify any insignificant matter under the proviso of paragraph (1), it shall be amended by a new improvement plan with the consent of at least 20/10 of the landowners of land or buildings within a housing complex and at least 20/30 of the former Enforcement Decree of the Act on the Maintenance and Improvement and Improvement of Urban Areas.”

In light of the contents, form, and structure of the above provisions, if an association is established in a rearrangement zone and a non-housing zone includes a non-housing zone, consent under Article 16(2) of the former Act should be obtained from a housing complex separately from obtaining consent under Article 16(2) of the same Act (see, e.g., Supreme Court Decision 2010Du25107, Oct. 25, 2012). In addition, even where an association which has obtained authorization for establishment changes the authorized matters, it should obtain consent above the statutory consent rate as at the time of establishment. However, if the modified matters are insignificant matters under the subparagraphs of Article 27 of the former Enforcement Decree of the Act, a new consent procedure is not required.

Accordingly, even in the case of changing the location of a project zone and expanding the area, it shall meet the requirements for statutory consent, in principle, on the aggregate of the previous zone and the additional zone. However, if the change of the location and the expansion of the area of the project zone are made following the change of the improvement zone or the improvement plan under Article 4 of the former Act, it constitutes a minor matter provided for in Article 27 subparagraph 3 of the former Enforcement Decree of the Act, and barring any special circumstance, it is reasonable to deem that there is no need to obtain new consent for the members who agreed to establish the existing project zone and that the consent for the previous project zone is valid as the consent for the changed project zone is also valid. In addition, if a sectional owner, etc. first and second agreed to establish the association by changing the intent after the authorization of establishment, which is a minor matter provided for in Article 27 subparagraph 2 of the former Enforcement Decree of the Act, and thus, they should also be considered to have been replaced or newly admitted at the time of the change of the project zone.

C. Review of the reasoning of the first instance judgment cited by the lower court and the evidence duly admitted and examined by the lower court reveals the following facts.

1) The Mayor of Gangseo-gu Seoul Metropolitan Government changed the basic plan for the development of the Gero apartment zone on the 367,864.3 square meters of the Gangseo-gu, Gangseo-gu, Seoul Metropolitan Government, and announced it by the Seoul Metropolitan Government Notice No. 2000-36 on February 25, 200. The area of the third-party district (hereinafter referred to as the “third-party district”) stipulated in the said basic plan for the development of the district was 139,753.9 square meters, and the third-party apartment is 1,22 households (including 52 households), the two-party apartment units (including 15 households), the 305 households of the two-party apartment (including 15 households), the first-party apartment unit in the Hongjin-gu, the second-party apartment unit in the Hongjin-gu, the second apartment unit in the Hongjin-gu, 93 households (including 9 households in the upper household), the second apartment household in the second apartment, the second apartment household and the detached housing complex.

2) The Defendant’s Intervenor Cooperative (hereinafter “ Intervenor Cooperative”) composed of 1,118 persons holding the sectional ownership of the well- new apartment and the first apartment owner of the red-jin apartment (hereinafter “Defendant’s Intervenor Cooperative”) completed the registration of establishment on July 28, 2003 with the site area of 76,373 square meters in order to implement the housing reconstruction project (hereinafter “the instant project”) in Jeju-gu, Jeju-do, and the third district, pursuant to Article 44 of the former Housing Construction Promotion Act (amended by Act No. 6732, Aug. 26, 2002; hereinafter the same) after obtaining authorization for establishment from the Defendant pursuant to Article 18(2) of the former Urban Improvement Act and Article 10(1) of the Addenda (amended by Act No. 6732, Dec. 30, 202).

Afterwards, the Intervenor Union obtained a modified authorization to add several members to the project zone for the implementation of the instant project or to expand its members by incorporating other areas located within the third territory into the project zone. The area not the Hongjin apartment housing complex and the housing complex by the first modified authorization of the instant first modification was incorporated into the project zone, by the instant 4th modified authorization, the housing complex for the Hongjin apartment housing complex, by the instant 5th modified authorization, and by the 6th modified authorization of the instant 6th apartment housing complex (hereinafter “the instant 1,4,5, and the 6th modified authorization”).

3) However, since the time of authorization for establishment, the articles of incorporation of an intervenor association allows a partnership or a merger with another association within the third week as to the composition of the partnership, and under the premise that the association can extend the project implementation district within the area of the third week as well as the apartment owners who have formed the first association as well as the owners of the housing within the project implementation district, etc. who have agreed to the rebuilding resolution, on the premise that the association can extend the project implementation district within the area of the third week, by setting the total area of the building site as 139,753.9 square meters and, if there is land to be additionally incorporated in accordance with the relevant Acts and subordinate statutes and the articles of incorporation as inevitable for the implementation of the project, the total area of the building site may be increased or decreased.

Likewise, even in the written consent received from the sectional owners at the time of the establishment of the Intervenor’s association, the area of the site that the project is implemented is not a project area at the time of the preparation of the written consent, but a size in accordance with the criteria for the determination and public notice of the Seoul Special Metropolitan City Master Plan, which is approximately KRW 139,753.9 square meters, the total area of the third-party site.

Accordingly, even when the intervenor association is subject to the prior authorization for modification to the purport of expanding the project area within the scope of the entire area of the third state, it received the aforementioned consent form additionally from the sectional owners or the owners of the land or buildings in the area added to the project area, and did not obtain the consent form separately from the owners of the previous land or buildings in the project area, and the area of the project area is as it is, and the change of the total number of union members due to the addition of union members and change of name was subject to

4) On October 11, 2007, the Mayor of Seoul Special Metropolitan City amended and publicly announced the master plan for development and maintenance of the grain apartment zone in Gangseo-gu Seoul Metropolitan City ( Address 1 omitted), ( Address 2 omitted), ( Address 3 omitted), ( Address 4 omitted), ( Address 5 omitted), ( Address 6 omitted), and ( Address 6 omitted), commercial buildings and other detached houses, multi-household houses, and buildings (hereinafter referred to as “instant incorporated zone”) located in the said site, and other detached houses, multi-household houses, and buildings (hereinafter referred to as “instant incorporated zone”) under the name of the association members of Gangseo-gu, Seoul Special Metropolitan City ( Address 1 omitted), and the size of the land in Gangseo-gu, Seoul Special Metropolitan City ( Address 2 omitted), ( Address 4 omitted), the site in ( Address 5 omitted), and the site in the said site as well as the building site in question, and thereafter, the size of the area to be constructed on January 14, 2008 was changed to the zone in this case.

5) The Intervenor Union only obtained the consent of 59 owners of land or buildings within an area that is not a housing complex to be newly incorporated in the project zone at the time of the instant disposition for the first modification of the authorization. At the time of the instant disposition for the seventh modification of the authorization, the Intervenor Union did not meet the requirements for the consent as stipulated in Article 16(3) of the former Act even at the time of the instant disposition for the modification of the authorization.

Accordingly, the plaintiffs filed the lawsuit in this case seeking a confirmation of invalidity of the previous authorization disposition and the 8th authorization disposition, etc. of this case. On March 30, 2011, the first instance court rendered a judgment that accepted a request for confirmation of invalidity of the previous authorization disposition and dismissed a request for confirmation of invalidity of the 8th authorization disposition. Accordingly, the judgment of nullification of the previous authorization disposition was finalized simultaneously with the judgment of the court below on September 7, 201, because the defendant did not appeal against this decision.

6) However, if the Intervenor’s association included all written consents prior to the disposition of modified authorization at the time of the instant 8th approval, the Intervenor’s association satisfies the statutory consent ratio regarding the housing complex as stipulated in Article 16(2) of the former Act for the sectional owners in the housing complex located within the entire business area as modified by the disposition of modified authorization for the instant 8th approval.

In addition, unlike the time of the 7th approval of change, as the incorporated zone was added to the instant area at the time of the 8th approval of change, the size of the land or building in an area other than the entire housing complex increased from 103 to 303 persons, and the area of land has increased from 17,101.83 square meters to 31,282.04 square meters. Pursuant to the additional consent of 183 persons among 200 landowners or building owners within the instant incorporated zone, 257 persons with consent from 103 persons with consent from 103 persons with previous land or building owners, 257 persons with consent from 84.81% [183 persons with +74 persons with 200 +103 persons)/ [200 persons] of the owners of land or buildings (200 +100 persons with 201.76 square meters with the total area owned by them, the area of land is 631,281.71.64 square meters

D. According to the above facts, since the prior authorization disposition became null and void by litigation, it is difficult to view that the prior authorization disposition of this case is valid as the prior authorization disposition of modification on the premise that the prior authorization disposition of modification is valid.

E. However, as seen below, the 8th approval disposition of this case is deemed to have its effect as the establishment authorization of the association that expands the business area composed of each housing complex of the friendly apartment and the Hongjin apartment (hereinafter “the first business area”) and the entire incorporated area of this case to the third-party project zone (hereinafter “third-party project zone after modification”) under the pre-approval Disposition of the 8th approval of the establishment establishment. Thus, the 8th approval disposition of this case cannot be deemed to be null and void since the intervenor association can continue to implement the rearrangement project by the validity of the 8th approval disposition of this case, which satisfies the requirements for the initial approval of the establishment and the new approval of the establishment authorization.

1) Unlike the requirement that the former Act on the Maintenance and Improvement of Urban Areas, which was enacted after the establishment of the intervenor association, is consistent with the project zone of the association and the rearrangement zone, the former Housing Construction Promotion Act, which was the first ground for the establishment of the intervenor association, allowed the implementation of the project or the establishment of the association for some land within the apartment zone based on the master plan for development of the apartment zone, could expect the alteration of the association to implement the project for the entire apartment zone by adding other areas within the apartment zone to the project zone after the establishment of the association. The intervenor association reflects this purport in the articles of association, while the letter of consent received from the sectional owners, the land owners, or the building owners at the time of the establishment also state the total area of the third site as the area of the land subject to the third site as the area subject to the project, it is reasonable to view that the above letter of consent is valid as the consent to the third site as the entire project zone after the establishment of the association, and it constitutes a modification of the master plan and rearrangement plan for the development of the Daegu apartment zone, and it does not constitute a modification of the previous project zone.

In addition, according to the consent letter received by the Intervenor at the time of the disposition for the modification of the 8th approval of the instant case, the Intervenor’s association satisfied the statutory consent rate under Article 16(2) of the former Act regarding the housing complex among the third-party project zone after the modification, and the statutory consent rate under Article 16(3) of the former Act regarding the areas other than the housing complex, respectively.

Ultimately, at the time of the 8th approval of the instant change, the Intervenor Union could be deemed to have provided a written consent meeting the same statutory requirements as the establishment of the association with respect to the third-party project zone after the change. Therefore, if a written consent that the Intervenor Union had had is lawful and effective, the 8th approval of the instant change based on such circumstance can be recognized as an alteration of the establishment of the third-party project zone after the change of the initial project zone.

2) However, as revealed by the reasoning of the first instance judgment cited by the lower court and the records, including the evidence duly admitted by the lower court, the Defendant, at the time of the instant disposition for the modification of the 8th approval, deemed that the written consent of the ○○ church of the ○○ church (hereinafter “○○ church”) that owned several parcels of land in the business area, which is not a housing complex, is lawful and valid. The Plaintiffs are arguing that the written consent of the ○ church submitted by the Nonparty without the resolution of the 00 church is invalid as the consent of the establishment of the association.

According to Article 28(4) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the consent of owners of land, etc. shall be obtained by means of written consent using a certificate of seal imprint and attaching a certificate of seal imprint to the owner of land, etc. However, since an unincorporated association has no system for obtaining a certificate of seal imprint, it is reasonable to conclude that the association without legal capacity will consent to establish an association on behalf of an unincorporated association by attaching documents, such as a certificate of personal seal imprint, etc. proving that the representative was prepared by the representative and the representative himself/herself, or attaching documents proving the authenticity of the official seal imprint to the association without legal capacity.

In addition, considering the legislative purport of the method of written consent stipulated in Article 28(4) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions, if it is recognized that the whole of the members can be reflected in the written consent and agreed in light of all the circumstances, such as the reason why the church which owns the land or building consents to the establishment of a reconstruction association and the implementation of a project within the rearrangement zone, the reason why the church representatives submitted the written consent, the opinion on the promotion of reconstruction of the members before

According to the reasoning of the first instance judgment as cited by the lower court and the records, including evidence duly admitted by the lower court, ① ○○○ Association, with the consent of the Defendant to establish an intervenor association and to implement the project, signed the agreement on the establishment of the intervenor association, and signed the agreement on the re-building and the project implementation plan stating that the Nonparty, its representative, attached a seal imprint impression of the Nonparty, and submitted it with his seal impression attached thereto. ② ○○ Association, upon the modification of the basic plan and maintenance plan for the development of the 8th apartment zone, agreed on August 21, 2008 to cooperate with the Intervenor association and the 3rd (Gu-centered 3-2) land under the rearrangement plan, and agreed on the purport that the Intervenor association did not submit the agreement on the re-building and the 2000 square meters of the land portion of the previous ○○ Association to the effect that the Intervenor association did not submit the agreement on the re-building and the 3000 square meters of the land portion exceeding the size of the Seoul (Gu-gu 8, 1414.75.201 square meters

In light of the above facts in light of the legal principles as seen earlier, the non-party, a legitimate representative of the ○ church, prepared and submitted a written consent for establishing the association on behalf of the ○○ church, and, even after the submission of the written consent for establishing the association, the ○○ church agreed to cooperate with each other in building the ○○ church within the 3th week on the premise that the ○○ church consented to the implementation of the rearrangement project, and considering the circumstances such as selling part of the land in the ○○ church and the normal execution of the sales contract, and giving and receiving large amounts of money, the consent for establishing the ○○ church can be recognized as having been reflected by the total will of the members, and such consent shall be

3) Therefore, the 8th approval disposition of the instant case satisfies the legal consent requirements that are the same as the establishment of the association with respect to the entire third-party project zone after the alteration, and thus, it is recognized that the establishment authorization of a new establishment change to the third-party project zone after the alteration of the first project zone is valid, and the intervenor association may continue to implement the rearrangement project pursuant to the original approval disposition of the establishment authorization and the validity of the 8th approval disposition of the instant case. Thus,

F. In the same purport, although the judgment of the court below that deemed the 8th amendment disposition of this case valid was inappropriate in its reasoning, it is justifiable in its conclusion. Therefore, it did not err by misapprehending the legal nature of the authorization for modification of the establishment, or by misapprehending the legal principles on the validity of the consent for

2. As to the third ground for appeal

Except as otherwise provided for in the Administrative Litigation Act, the provisions of the Civil Procedure Act shall apply mutatis mutandis to matters concerning the administrative litigation (Article 8(2) of the Administrative Litigation Act). In principle, as long as an administrative litigation under the control of the pleadings principle does not relate to ex officio investigation, Article 149(1) of the Civil Procedure Act concerning the rejection of actual or defensive means. It does not change because there is Article 26 (Ex officio Examination) of the Administrative Litigation Act (see, e.g., Supreme Court Decision 2003Du988, Apr. 25, 2003). In addition, the court may dismiss the administrative litigation if it is deemed that the late method of attack and defense is delayed due to the intention or gross negligence of the party, not only in the form of independent decision but also in the form of a decision. However, even if the court completes an investigation of evidence without the party’s decision to dismiss the method of attack and defense or, even if the actual method of attack and defense is completed within the extent of 200 years prior to the trial or defense.

The lower court rejected the aforementioned assertion on the ground that, inasmuch as the Plaintiffs’ assertion that the ratio of land area consent is unlawful, the date of the first instance court’s pleading four times more than the date of the first instance trial, and the date of the first instance court’s pleading was submitted on August 5, 201, which did not appear until the date of the first instance court’s pleading, and thereafter made a statement on the said briefs on August 10, 201 at the second day of the lower court opened on August 10, 201, which included the said assertion, the lower court rejected the said assertion on the ground that, in accordance with the provisions of Article 146 of the Civil Procedure Act providing for the principle of timely submission, it would delay the conclusion of the lawsuit by

Examining the record in light of the above legal principles, considering the fact that additional evidence is necessary to determine the legitimacy of the plaintiffs' above assertion, and that the above assertion is not included within the scope of litigation materials which have already been examined, such determination by the court below is sufficiently acceptable, and there is no error of law by misunderstanding the legal principles as to the rejection of the means of attack and defense by the deadline.

3. Conclusion

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

Justices Lee In-bok (Presiding Justice)