[소유권이전등기등][공2000.12.15.(120),2400]
[1] Whether a document evidencing an unclaimed content is presumed to be served (affirmative)
[2] The case holding that, in the case of a reconstruction association which fails to obtain authorization for establishment of a sub-chapter or to obtain authorization for modification because it includes a person who has agreed to reconstruction as its members, its members can withdraw from the association at will before obtaining authorization for establishment or authorization for modification, unless the rules of association, etc. prohibit the withdrawal of its members from the association
[1] It is reasonable to deem that a document evidencing the contents of a letter of intent to withdraw from a reconstruction association was served at that time, unless there are special circumstances, unless it is sent and otherwise returned.
[2] The case holding that, in the case of a reconstruction association which fails to obtain authorization for establishment of a sub-chapter or to obtain authorization for modification because it includes a person who has agreed to reconstruction as its members, its members can withdraw from the association at will before obtaining authorization for establishment or authorization for modification, unless the rules of association, etc. prohibit the withdrawal of its members from the association
[1] Article 111 of the Civil Code / [2] Article 3 subparagraph 9 of the Housing Construction Promotion Act and Article 44 (2) of the Housing Construction Promotion Act
[1] Supreme Court Decision 79Da1498 delivered on January 15, 198 (Gong1980, 12542) Supreme Court Decision 91Nu3819 delivered on March 27, 1992 (Gong1992, 1439) Supreme Court Decision 96Da38322 delivered on February 25, 1997 (Gong197Sang, 872)
[Plaintiff-dong Rebuilding Housing Association (Law Firm Sofol, Attorney Sofol, Counsel for plaintiff-appellant)
Defendant 1 and two others (Defendants, General Law Firm Masung, Attorneys Shin-sung et al., Counsel for the defendant-appellant)
Seoul High Court Decision 99Na15469 delivered on March 17, 2000
All appeals are dismissed. The costs of appeal are assessed against the plaintiff.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate brief filed after the deadline).
1. On the second ground for appeal
Unless there are special circumstances, it is reasonable to view that a postal item proving the contents of a letter of intent to withdraw from a reconstruction association was served at that time unless it is sent and otherwise returned (see, e.g., Supreme Court Decisions 79Da1498, Jan. 15, 1980; 96Da38322, Feb. 25, 1997). In light of the above legal principles and records, the court below is justified in holding that the court below submitted a letter of withdrawal to the plaintiff association at that time and that it reached each time, and there is no error in the misapprehension of legal principles as to the misconception of facts or the arrival of declaration of intent due to the violation of the rules of evidence as otherwise alleged in the ground of appeal.
2. On the first ground for appeal
According to the reasoning of the judgment below, the court below held that when a reconstruction association did not obtain authorization for establishment or when a person who consented to reconstruction did not yet include the association members and obtained authorization for modification, union members may freely withdraw from association, barring special circumstances such as the provision prohibiting union members from withdrawing from association under the rules of the association, etc.
3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the plaintiff-Appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.
Justices Lee Yong-woo (Presiding Justice)