[2] In a case where the articles of association of the reconstruction and improvement project association stipulate that "a partner who has withdrawn an application for parcelling-out shall liquidate in cash" and "the above provisions shall apply mutatis mutandis where a partner has not concluded a parcelling-out contract within 30 days after the approval plan for the management and disposal plan," the case holding that "a person who has withdrawn an application for parcelling-out" under the above provisions mean a person who has become a person subject to cash liquidation by withdrawing the application for parcelling-out before the expiration of the period for application for parcelling-out and does not constitute a person who has voluntarily withdrawn the application for parcelling-out after the expiration of the period for application for parcelling-out; and where the partnership did not demand the conclusion of the parcelling-out contract for the reasons of the progress of the project

1. As to the assertion of misapprehension of legal principles as to the time when the registration of real estate trust and the obligation of delivery occurred by the reconstruction association members of the defendant 1, 2, 3, 4, 5, 6, 7, 8, 9

A person who becomes a partner by consenting to a reconstruction improvement project shall have the duty to comply with the rules of the relevant association, if the said rules stipulate the duty to register the trust of the association members.

Based on evidence adopted, the lower court: (a) the Plaintiff is a reconstruction maintenance and improvement project association that completed the establishment registration on December 27, 2004 after obtaining authorization from the competent administrative agency on December 24, 2004; (b) the said Defendants are the owners of buildings and appurtenant land located within the reconstruction project zone and consent to the establishment of the Plaintiff; and (c) the Plaintiff, after obtaining authorization for the implementation of the project from the competent administrative agency on June 13, 2005 after obtaining application for parcelling-out from the members, formulated a management and disposal plan based on the land unit from the members; and (c) the Plaintiff’s articles of association stipulate that “the Plaintiff shall use the land, building or superficies owned by the members in kind, and supply the housing and appurtenant and welfare facilities to the Plaintiff, which are owned by the owner of the housing association, and the association shall not be deemed to have been subject to the announcement of the approval for the implementation of the plan under the provisions of Article 48 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as “Urban Improvement Act”).

In light of the above legal principles and records, the above measures of the court below are just and acceptable. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on the registration of real estate trust and the timing of delivery.

2. As to the assertion of misapprehension of legal principles as to the occurrence of the obligation to liquidate cash by Defendant 3, 5, 6, 7, and 9

According to the records, Article 45(4) of the Plaintiff’s articles of association provides that where a partner falls under “a person who fails to file an application for parcelling-out,” “a person who has withdrawn an application for parcelling-out,” etc., a cooperative shall liquidate the buildings and other rights in cash within 150 days from the date of falling under such case. Article 45(5) of the Plaintiff’s articles of association provides that “a partner shall conclude a contract for parcelling-out within 30 days from the date of approval for the management and disposal

In light of the language and purport of the provisions of the articles of incorporation, "person who has withdrawn an application for parcelling-out" under Article 45 (4) of the articles of incorporation means a person eligible for cash settlement in the process of establishing a management and disposal plan like "person who has failed to file an application for parcelling-out" by withdrawing the application for parcelling-out within the period for parcelling-out within the period for filing an application for parcelling-out before the expiration of the period for filing an application for parcelling-out, and does not correspond to the person who voluntarily withdraws the application for parcelling-out after the period for filing an application for parcelling-out expires (see Supreme Court Decision 2011Du17936, Dec. 22, 2011, etc.). Article 45 (5) of the articles of incorporation means that it is reasonable to interpret that Article 45 (5) of the articles of incorporation means that a union that has not concluded a contract for parcelling-out in violation of its duty to conclude a contract for parcelling-out is subject to cash settlement, even if the partnership did not demand its members for a contract for parcelling-out in accordance

According to the reasoning of the judgment below and the records, the above defendants only filed an application for parcelling-out from the end of September 2005 to October 2005 according to the plaintiff's instruction for application for parcelling-out, but did not withdraw the application for parcelling-out within the period for parcelling-out, the plaintiff established a management and disposal plan based on the application for parcelling-out by the members, and obtained the approval of management and disposal from the competent administrative agency on December 27, 2006 after the decision of the management and disposal plan was made on June 9, 2006 by the general meeting of the management and disposal plan on June 27, 2006

Therefore, the Defendants cannot be deemed to have become eligible for cash settlement solely on the grounds that the sales contract was not concluded within 30 days after the approval of the management and disposal plan of this case between the Defendants and the Plaintiff. Moreover, the Defendants cannot be deemed to have become eligible for cash settlement because they constitute a person who has withdrawn the application for parcelling-out

Although the court below partially inappropriate, it is just in rejecting the above defendants' assertion that the defendants cannot respond to the plaintiff's claim for transfer registration of ownership before receiving the cash settlement on the premise that the above defendants were subject to cash settlement. In so doing, it did not err by misapprehending the legal principles on the time of occurrence of cash settlement obligation, cash settlement and simultaneous performance of transfer registration, as alleged in the grounds of appeal.

3. As to the assertion of misapprehension of legal principles as to the termination of trust contracts by Defendant 3, 5, 6, 7, and 9

As seen earlier, the Defendants, as members of the Plaintiff’s association, are obligated to implement the registration procedure for transfer of ownership based on the trust regarding the pertinent real estate owned by the Plaintiff as prescribed by the Plaintiff’s articles of association. Unless there exist special circumstances, such as the Defendants’ loss of membership, etc., the Defendants cannot refuse to terminate the trust agreement with the Plaintiff and to comply with the said obligation.

Although the court below partly inappropriate, it is just to dismiss the Defendants’ assertion that the trust contract was terminated and that there was no obligation to transfer ownership registration. In so doing, it did not err by misapprehending the legal principles on the termination of trust contract, as otherwise alleged in the grounds of appeal

4. As to the assertion of misapprehension of legal principles regarding the non-performance of follow-up measures and the relationship between the real estate trust registration and the duty of delivery of real estate by the union members, where the modification of the implementation plan for the reconstruction project by Defendant 1, 2, 4

As seen earlier, the Defendants, a member of the Plaintiff, have the duty to register and deliver a trust regarding real estate owned by them. On the ground that the Plaintiff failed to take follow-up measures after obtaining an amendment to the implementation plan of the reconstruction project of this case, the Plaintiff cannot be deemed to have any impact on the Plaintiff’s duty to register and deliver trust to the Plaintiff.

In the same purport, the court below is just in rejecting the defendants' assertion that the plaintiff cannot respond to the plaintiff's request of this case since the plaintiff did not obtain only the approval for the change of a project implementation plan but did not follow the revision of a management and disposal plan, which is a subsequent measure to be implemented according to the approval for the change of a project implementation plan. There is no error in the misapprehension of legal principles as to the subsequent non-performance of measures, the obligation to register the real estate trust of the union members, and the relationship of delivery

5. As to the assertion that Defendant 1, 2, 3, 4, 5, 6, 7, 8, and 9 violated the good faith principle, and misapprehension of legal principles as to abuse of rights and right of defense of uneasiness

In light of the circumstances stated in its holding, i.e., the Plaintiff’s relocation and removal work for its members when the project implementation plan was revised due to design change, etc. after obtaining approval for the management and disposal plan, and until now the relocation of more than 85% of the total owners in the reconstruction project area was completed and the removal work was conducted at least 80%, the lower court determined that the Plaintiff’s seeking the implementation of the trust registration in accordance with the provisions of the articles of incorporation constitutes abuse of rights against the good faith principle, or that the above Defendants’ right to refuse the implementation of the trust

In light of the relevant legal principles and records, the above measures of the court below are just, and there is no error of misapprehending the legal principles as to the violation of the good faith principle, abuse of rights and the right of defense against apprehensions.

6. As to the assertion of the defects, etc. in the process of the progress of the project by Defendant 1, 2, 4, and 8

In addition, it cannot be said that the Plaintiff’s business progress procedure merely affects the Plaintiff’s duty of transfer of ownership to the said Defendants, a partner, solely on the ground that there is such defects as alleged by the Defendants.

In the same purport, the court below is just in rejecting the defendants' assertion that the plaintiff's business progress procedure is defective and thus the plaintiff's business progress procedure cannot be implemented as a member of the association.

7. As to Defendant 10’s ground of appeal

After finding the facts as stated in its reasoning, the lower court determined that Defendant 10, a partner, had the duty to deliver the relevant real estate to the Plaintiff.

In light of the relevant legal principles and records, the above measures of the court below are just and acceptable. In so doing, the court below did not err by misapprehending the legal principles on the timing of the delivery of real estate by the reconstruction

In addition, insofar as Defendant 10’s petition of appeal against the judgment of the court of first instance that accepted the Plaintiff’s claim for ownership transfer registration is dismissed, so long as the judgment of the court below is not subject to adjudication, it became final and conclusive at the same time as the judgment of the court below, and the lawsuit is terminated (see, e.g., Supreme Court Decision 2006Du2091, Apr. 27, 2006). Therefore,

8. 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 Park Il-young (Presiding Justice)