[2] Whether a committee for promotion of the establishment of a housing redevelopment project partnership can adopt a resolution to select a city construction project at the residents' general meeting (negative)

[2] Article 14 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7960 of May 24, 2006) and Articles 22 and 23 of the Enforcement Decree of the same Act provide for the duties of the association establishment promotion committee to obtain consent from the owners of land, etc. more than a certain percentage of land with respect to the duties involving the bearing of expenses by the owners. Since the duties involving the selection of the contractor are not included in the duties involving the bearing of expenses, the said promotion committee is not authorized to convene a residents' general meeting to select the contractor. Article 8 of the same Act provides that the housing redevelopment project shall be implemented by the association or the association may be jointly conducted with the constructor with the consent of the majority of its members. In light of the fact that Article 24 of the same Act provides that the selection of the contractor shall undergo the resolution at the general meeting of the association members, it is reasonable to view that the selection of the contractor is an inherent

2. On August 10, 2006, the resolution selected by the defendant as a joint implementer of housing redevelopment improvement project at the residents' general meeting is invalid.

3. All costs of the lawsuit shall be borne by the defendant.

The court's explanation on this part is identical to the statement in Paragraph 1 of the judgment of the court of first instance. Thus, this part is cited in accordance with Article 420 of the Civil Procedure Act.

2. Determination on this safety defense

A. Even though the defendant adopted a resolution (hereinafter "the resolution of this case") to select modern industrial development as a contractor at the residents' general meeting (hereinafter "resident general meeting of this case") on August 10, 2006, the defendant does not have any legal effect until the resolution of this case is ratified at the general meeting of the members, since the redevelopment association to be established in the future or its members' general meeting is bound by the resolution of this case and thus, it does not have any legal effect to select the modern industrial development as the contractor. In light of the fact that the resolution of this case does not have any legal effect until the resolution of this case is ratified at the general meeting of the members, it cannot be deemed that the plaintiffs' rights or legal status are currently unstable and dangerous, and it cannot be deemed as a valid and appropriate means in resolving the dispute of this case. Thus,

B. On the other hand, the defendant is arguing that the resolution of this case is valid in the lawsuit of this case, and the rights and obligations related to the business performed by the promotion committee in the Urban Improvement Act are comprehensively succeeded (Article 15(4)). Thus, the resolution of this case can not be comprehensively succeeded to the association as it is, even if not, there may be controversy as to whether the association to be established in the future can succeed to it by a modified method, such as post-de facto trend, etc., and the whole purport of pleading in the statement of evidence No. 8 above.

3. Judgment on the merits

A. Determination on the cause of the claim

Article 14 of the Act on the Maintenance and Improvement of Urban Areas and Articles 22 and 23 of the Enforcement Decree of the same Act provide for the defendant's business to obtain the consent of the owners of land, etc. with respect to the business accompanying the cost bearing by the owners of land, etc. However, since the business accompanying the cost bearing is not included in the business concerning the selection of the contractor, the defendant is not entitled to convene a residents' general meeting in order to select the contractor. Article 8 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions provide that the housing redevelopment project can be implemented by the partnership or the partnership with the consent of the majority of the union members, and the selection of the contractor shall undergo the resolution at the general meeting of the union members. In light of the above provisions related to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions, it is reasonable to deem the selection of the contractor to be the inherent authority of the general meeting of the union members to be established in the future

B. Judgment on the defendant's assertion

(1) As to this, the defendant stipulated that Article 11 of the Urban Improvement Act provides that "the owner of an association or land, etc. shall select a constructor under Article 9 of the Framework Act on the Construction Industry or a registered constructor under Article 12 (2) of the Housing Act after obtaining authorization for the implementation of a housing reconstruction project," which stipulates that "the Act on the Improvement of Urban Areas and Dwelling Conditions after obtaining authorization for the implementation of a housing reconstruction project or redevelopment project shall be selected as a constructor," but it stipulates that "the Act on the Improvement of Urban Areas and Dwelling Conditions after obtaining authorization for the implementation of a housing redevelopment project shall be selected as a constructor after obtaining authorization for the implementation of a housing reconstruction project from 200 to 30.5 of the Act on the Improvement of Urban Areas and Dwelling Conditions after obtaining authorization for the implementation of a housing redevelopment project," and that "the Act on the Improvement of Urban Areas and Dwelling Conditions after obtaining authorization for the implementation of a redevelopment project from 200 to 30.5 of the Act on the Improvement of Urban Areas and Dwelling Conditions after obtaining authorization for the implementation of the Housing Redevelopment Project shall apply."

(2) However, although there was no direct restriction on the timing of selecting a contractor for a housing redevelopment project under the relevant laws and regulations enforced at the time of the instant resident’s general meeting, it is reasonable to view that the authority to select a contractor is the inherent authority of the general meeting of the association members. Considering that the selection of a contractor is sufficient when the resolution of the general meeting of the association members is obtained with respect to the selection of a contractor at the stage of the promotion committee is contrary to the purport of the Act. ② The reason for amendment of the Urban Improvement Act amended by Act No. 7392 of March 18, 2005 is to allow the contractor to participate at the early stage of the redevelopment improvement project so that the redevelopment project can be implemented promptly at the stage of the redevelopment project, and it does not mean that the redevelopment project association and the constructor, etc., other than the promotion committee under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions, should be jointly implemented at the stage of the redevelopment project, and the Defendant’s assertion to the effect that it is difficult to recognize the quality of the redevelopment project at the stage of the above amendment.

4. Conclusion

Therefore, the plaintiffs' claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, so it is decided as per Disposition by accepting the plaintiffs' appeal and cancelling the judgment of the court of first instance.

Judges Kim Shin (Presiding Judge)