[2] Whether the validity of the association for maintenance and improvement projects, which is the implementer of the housing reconstruction project, is a requirement for exercising the right

[3] In a case where the consent of the owners such as land for the establishment of a housing reconstruction and improvement project association was made pursuant to the standard written consent of the Ministry of Construction and Transportation, the case holding that the contents of the above standard written consent cannot be viewed as unlawful because

1. As to the allegation that an exclusive jurisdiction is violated (ground of appeal No. 1)

Under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785 of Dec. 21, 2007; hereinafter "former Act"), the legal relationship surrounding the right to demand sale of the land and buildings of a person who did not consent to the establishment of the association merely because the housing reconstruction and improvement project association is a public law person, or the lawsuit seeking the implementation of the procedure for ownership transfer registration due to the exercise of the right to demand sale corresponds to the legal relationship under the public law, or cannot be deemed as a party lawsuit under the public law as a matter of course. Since the provisions of the above Act are not set up as a special legal relationship regarding the right to demand sale between the housing reconstruction and improvement project association and the person who did not consent to the establishment of the association, the legal relationship surrounding the right to demand sale between the housing reconstruction and improvement project association and the person who did not consent to the establishment of the association is a

According to the records, the lawsuit of this case is obvious that it is a lawsuit seeking the registration of ownership transfer following the exercise of the right to claim sale against the defendants who did not consent to the establishment of the association. In light of the above legal principles, since the lawsuit of this case cannot be viewed as an unlawful lawsuit violating the exclusive jurisdiction of the administrative litigation, it is not erroneous in the judgment below which judged the lawsuit of this case as a civil lawsuit, and there is no violation of

2. As to the assertion that a resolution of establishing an association is valid (ground of appeal Nos. 2 and 3)

A. Article 39 of the former Urban Improvement Act provides that a project implementer may file a claim for sale of the land and buildings of a person (including a person who owns only a building or land; hereinafter the same shall apply) who did not consent to the establishment of an association under Article 16(2) and (3) while implementing a housing reconstruction project by applying mutatis mutandis Article 48 of the Act on the Ownership and Management of Aggregate Buildings. A project implementer in a housing reconstruction project is established by the authorization and registration of the establishment of the competent administrative agency, and the consent of owners, such as the land for the establishment of the association (hereinafter referred to as the “resolution of the establishment of an association”) is only one of the procedural requirements necessary for the administrative disposition such as the approval of the establishment of an association. Thus, even if there is a defect in the establishment resolution, the association association still has the status of a project implementer (see Supreme Court Decision 2008Da60568, Sept. 24, 2009).

Therefore, in a case where a rebuilding project association files a lawsuit seeking the implementation of the procedure for ownership transfer registration by exercising the right to demand sale against a person who did not consent to the establishment of the association, etc., the legitimacy of the exercise of the right to demand sale based on the fact that the person, etc. who did not consent to the establishment of the association in the litigation procedure is illegal due to lack of the existence of the association, it is insufficient to say that the resolution of the association establishment has no effect due to such circumstance. Furthermore, it is necessary to assert and prove that the disposition of authorization to establish the association has been lawfully revoked or its defect is serious and obvious (see Supreme Court Decision 2009Da66686, Feb. 25, 2010).

B. According to the reasoning of the judgment below, the court below, after compiling the evidence adopted, acknowledged the following facts in the written consent for the establishment of the association of this case: "The expenses shall be imposed and collected in accordance with the articles of association, and the liquidation money shall be finally determined at the time of liquidation of the association at the time of liquidation. The value of the property owned by the association shall be calculated as prescribed by the articles of association, and the expenses and profits shall be equally apportioned and distributed in accordance with the management and disposal standards stipulated by the articles of association in accordance with the principle of equity. The construction cost and all business-related expenses to be paid to the contractor shall be preferentially appropriated for general revenues of housing and accessory and welfare facilities and for cooperative members who passed a resolution at the general meeting or written consent at the general meeting, and where shortage occurs, it shall be equally shared in accordance with the standards for the articles of association and management and disposal of the association of this case." Article 34 (2) of the articles of association of this case provides that "The maintenance project cost may be imposed through the resolution of the general meeting, and the amount shall be adjusted fairly in accordance with the management and disposal plan.

C. However, contrary to the aforementioned legal principles, the lower court erred by misapprehending the legal doctrine as to the right to claim sale under the Urban Improvement Act by deeming the Plaintiff’s exercise of the right to claim sale unlawful solely on the ground that the resolution of establishing the

D. In addition, even if the judgment of the court below on the above determination contains the determination that the disposition of approving the establishment of an association against the plaintiff was invalid as a matter of course due to the above grounds for invalidation, such determination by the court below is not acceptable for the following reasons.

According to Article 16(2) and Article 26(1)5 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions (amended by Presidential Decree No. 21171, Dec. 17, 2008; hereinafter “former Enforcement Decree”), when the committee for promotion of housing reconstruction projects intends to establish an association, it shall obtain consent from the owner of the land, etc. (1) the outline of design of the building to be constructed, (2) the outline of expenses to be incurred in removal and construction of the building, (3) the apportionment of expenses under the above paragraph (2) (including the standard of apportionment of expenses where the outline of the above paragraph is changed), (5) the apportionment of ownership after the completion of the project, and (1)5 of the former Ordinance on the Maintenance and Improvement of Urban Areas and Dwelling Conditions (amended by Presidential Decree No. 21171, Dec. 17, 2008; hereinafter referred to as the “former Enforcement Decree”). Article 14(1)5 of the former Ordinance on the Establishment of the Association shall be notified to the Ministry of the Ministry of Land, Transport and Transport and Transport, 2090-1.

In addition, when examining the issues of this case among the contents of the standard written consent, especially the "matters concerning bearing the burden of expenses" is indicated to the effect that the association's articles of association are followed as a whole. Thus, the settlement money to be borne by partners in the old Act on the Maintenance of Urban Areas and the former Enforcement Decree and the articles of association of the association of this case (under the standard articles of association prepared and disseminated by the Minister of Construction and Transportation pursuant to Article 20 (2) of the former Act) is not only the method of calculating the settlement money to be borne by partners in the course of business (the settlement money = prices of lands and buildings purchased in lots - prices of previous lands and buildings - prices of previous lands and buildings) but also the detailed provisions regarding the methods and timing of assessing the prices of lands and buildings purchased in lots, the timing and method of assessing the settlement money burden (Article 48 (1) 3 through 5, and Article 57 of the former Act, Article 57 (2) 2, Article 3, Article 47 (4) of the former Enforcement Decree of the Act, Article 10, Article 56 (1), and Article 5 of the association's of the association resolution of this case.

In addition, according to the above paragraph (4) and the standard written consent of the association after completion of the project, the standard management and disposal standards of the association's articles of incorporation shall apply, and the determination of the sale volume of a newly-built building by the association members who own the housing shall be based on the application for parcelling-out and the order of a large amount of the value of the previous rights, and the determination of Dong and Dong shall be in accordance with the methods of the association's articles of incorporation and the management and disposal standards, and the owners of incidental facilities, including commercial buildings, shall be provided with welfare facilities newly installed in consideration of the value of the previous land and buildings according to the association's articles of incorporation and the management and disposal standards, but the determination of Dong and Dong shall be governed by the management and disposal plan's articles of incorporation.

Therefore, the disposition of approving the establishment of a partnership cannot be deemed null and void on the ground that the bearing standard of expenses prescribed in the resolution of the association establishment of this case is excessively abstract. However, the court below erred in the misapprehension of legal principles as to the resolution of association establishment under the standard consent, etc., which affected the conclusion of the judgment, and the ground of appeal pointing this out is with merit.

3. Conclusion

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 Park Si-hwan (Presiding Justice)