[2] In a case where an association established as a juristic person upon the approval of the association establishment under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents and Dwelling Conditions for Residents opened a general meeting of association and has passed a resolution to approve or confirm the selection of a contractor at the general meeting of residents or land owners held by the association establishment promotion committee, whether there is a benefit to seek confirmation

1. Regarding ground of appeal No. 1

A. Article 11 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7392 of March 18, 2005 and amended by Act No. 7960 of May 24, 2006; hereinafter “former Act”) provides that “a housing reconstruction project cooperative shall select a constructor or registered project operator as a contractor after obtaining authorization for project implementation.” Paragraph (2) of the same Article provides that “a housing reconstruction project cooperative shall select a contractor under the provisions of paragraph (1) through competitive bidding as determined by the Minister of Construction and Transportation.” In the case of a housing redevelopment project cooperative, Article 11 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) provides that “from the first approval for establishment of an association, a housing redevelopment project cooperative shall select a constructor or a registered project operator after obtaining approval for implementation of the urban environment rearrangement project,” and Paragraph (1) of the same Article provides that “the housing redevelopment project cooperative shall apply the Act.”

Meanwhile, according to Article 24(1), (3)6, (4), and (5) of the Act on the Improvement of Urban Areas and Dwelling Conditions, a general meeting consisting of union members shall be selected and changed by the resolution of the general meeting, and the procedures, timing, method, etc. for convening the general meeting shall be determined by the articles of association.

In full view of the developments and contents of the amendment of the relevant Acts and subordinate statutes, it is reasonable to view that a housing redevelopment project cooperative established by the committee which was approved prior to August 25, 2006 by the Act on the Improvement of Urban Areas and Dwelling Conditions for the Establishment of the said Act may select a contractor only by the resolution of the general meeting of the association rather than by the method of competitive bidding as stipulated by the Minister of Construction and Transportation. Thus, in addition to the provisions that stipulate the selection of a contractor by the method of competitive bidding in the articles of association of the said housing redevelopment project cooperative, the above articles of association cannot be deemed null and void against Article 11 of

B. According to the reasoning of the first instance judgment partially accepted by the lower court and the reasoning of the lower judgment, the lower court determined that, on October 17, 2004, the Defendant Cooperative’s articles of incorporation approved by the competent authority for establishment of the committee for promotion of housing redevelopment and rearrangement project in three areas to establish the Defendant Cooperative (hereinafter “instant committee for promotion”), Article 12(1) of the articles of incorporation of the Defendant Cooperative provides that “the selection of work executor shall be made by means of general competitive bidding or selective competitive bidding, but the site site shall be held once or more daily newspapers, and then part of the proposal shall be selected at the general meeting upon receiving the proposal. However, prior to the enforcement of the criteria for selection of the construction contractor of the rearrangement project (No. 2006-31 of the public notice for delivery), the Plaintiff shall be deemed as the contractor selected by the articles of incorporation of the association pursuant to the articles of incorporation of the Plaintiff’s 1 and the Plaintiff’s association’s 20th general meeting (hereinafter “the Plaintiff’s 201”).

C. In light of the above legal principles and records, such determination by the court below is justifiable. In so doing, the court below did not err by misapprehending the legal principles as to the validity of the articles of association of the defendant association, the method of selecting a contractor, or omitting judgment

2. Regarding ground of appeal No. 2

Article 15(4) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the “Promotion Committee”) provides that “The rights and obligations relating to the affairs of the Promotion Committee shall be comprehensively taken place at a general meeting under Article 24.” Article 15(5) provides that “The Promotion Committee shall hand over the accounting books and documents stating the spent expenses to the Association within 30 days from the date of authorization for the establishment of the Association.” Article 85 subparag. 4 of the same Act provides that “The person who continues to operate the Promotion Committee despite the fact that the association was established under Article 16 shall be punished by imprisonment for not more than two years or by a fine not exceeding 20 million won.” In addition, Article 5(1) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 165) explicitly stipulates that “The Promotion Committee may carry out the affairs of the Promotion Committee until the date of authorization for establishment, and when the association is established, all the affairs and the Promotion Committee shall be dissolved.”

In light of the contents, form, and purport of the relevant statutes, even though the rights and obligations related to the duties performed by the promotion committee, which is non-corporate association, do not belong to the scope of duties of the promotion committee after the relevant statutes, it is reasonable to view that all the rights and obligations related to the duties performed by the promotion committee ought to be comprehensively succeeded to an association established by obtaining an approval for establishment under Article 16 of the former Urban Improvement Act, even if the duties performed by the promotion committee do not fall under the scope of duties of the promotion committee after the interpretation of the relevant statutes. Therefore, it is reasonable to deem

However, in a case where a partnership established as a juristic person with the approval for establishment of a partnership by opening a general meeting of a partnership and approves or ratified the resolution of selection of a contractor at the general meeting of residents or the general meeting of the owners of lands, etc., even if the resolution of selection of a contractor is null and void due to a defect in the new resolution at the general meeting of residents or the general meeting of the owners of lands, etc., or unless there are special circumstances such as the cancellation of the resolution, it is reasonable to deem that seeking confirmation of invalidity of the resolution of selection of a contractor conducted at the general meeting of residents or the general meeting of owners of lands, etc. held by the former promotion committee does not meet the requirements for protection of rights (see Supreme Court Decision 2001Da6479, Sept.

In light of the above facts in light of the above legal principles, insofar as the Defendant Union held a general meeting of shareholders and approved the Intervenor selected as the contractor as the contractor under the first resolution of this case as the contractor of the Defendant Union, seeking confirmation of invalidity of the first resolution of this case is merely seeking confirmation of the past legal relationship or legal relationship, and thus, is unlawful as it fails to meet the requirements for protection of rights.

B. Although the court below's reasoning on this part is not appropriate, it is just to dismiss the claim for nullification of the first resolution of this case, and there is no error of law by misunderstanding the legal principles as to this part of the ground for appeal.

3. Conclusion

Therefore, all appeals are dismissed. The costs of appeal are assessed against the losing party, including the part arising from participation in the appeal. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)