2. The plaintiff's appeal is dismissed.

3. The appeal cost (including the part arising from the supplementary participation) shall be borne by the Plaintiff.

A. On January 21, 2016, at the trial of the defendant assistant intervenor ex officio, we examine whether the application for intervention by the defendant assistant intervenor was legitimate.

B. The Defendant’s Intervenor applied for intervention in the first instance trial and maintained the status of the Defendant’s Intervenor in the trial. Nevertheless, as the Defendant’s Intervenor applied for intervention in the trial on January 21, 2016 at the same time, it is reasonable to deny the Defendant’s application for intervention in the trial on January 21, 2016.

2. Details of the disposition;

The reasoning for this Court’s explanation is that “25 large scale 293 square meters” in the 5th sentence of the first instance judgment is “225 large scale 293 square meters” in the 7th sentence of the fifth instance judgment, and it is identical to the entry “1. The developments leading to the 1. Disposition” in the grounds for the first instance judgment, and thus, it is acceptable in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination as to whether the part of the instant lawsuit seeking approval of the instant project plan and revocation of the instant district unit plan is legitimate

The court's explanation on this part is identical to the reasoning of the judgment of the court of first instance, stating "the part concerning the approval disposition of the project plan of this case among the lawsuit of this case and the revocation of the district unit planning of this case", and therefore, this part is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

5. Determination on the legitimacy of the disposition, such as designation of the implementer of this case

A. The plaintiff's assertion

The approval disposition of the instant project plan and the decision of the instant district unit plan are unlawful due to the following defects, and thus, the designation, etc. of the implementer of the instant project shall be revoked to the extent that the preceding disposition becomes invalid retroactively.

1) According to Article 16(4)1 of the Housing Act, when the Defendant’s assistant intervenor implements the instant project that requires the determination of the instant district unit plan jointly with Shee Construction, the Defendant’s assistant intervenor failed to secure more than 95/100 of the ownership of the land subject to the instant district unit plan (i.e., 33,361 square meters in the instant housing construction site + 3,593 square meters in the instant road site) while securing more than 95/100 of the ownership of the instant housing site; and (ii) even if the Defendant’s assertion is limited to the instant housing construction site subject to securing more than 95/100 of ownership, the Defendant’s assistant intervenor secured the ownership of the land equivalent to less than 3,361 square meters in the instant housing construction site, and still failed to meet the requirements for approval of the housing unit plan under Article 16(4)1 of the Housing Act. Nevertheless, the Defendant issued approval to the Defendant’s assistant intervenor.

2) Since the housing construction project plan and the district unit plan vary in purpose and scope, the scope of deemed scope of the instant district unit plan should be deemed to be limited to the instant housing construction site even if the determination of the instant district unit plan is legal fiction pursuant to Article 17(1)5 of the Housing Act, the Defendant included the instant road site within the scope deemed by the determination of the instant district unit plan. Therefore, the Defendant omitted the instant road site, which is excluded from the legal fiction, in accordance with Articles 26(1) and 28(1) of the National Land Planning and Utilization Act, and Articles 6(1)2 and 7(1) of the macro-si Urban Planning Ordinance on the instant road site.

B. Determination

1) Determination as to whether the requirements for securing ownership, etc. are satisfied

A) Whether the requirements for securing ownership are satisfied

(1) According to Article 16(4) of the former Housing Act (amended by Act No. 12989, Jan. 6, 2015; hereinafter “former Housing Act”), a person who intends to obtain approval of a housing construction project plan shall, in principle, secure the entire ownership of the relevant housing construction site. However, in cases of a housing construction project requiring a district-unit plan, including cases deemed pursuant to Article 17(1)5, where a site subject to a claim for sale under the Housing Act is not secured by securing a right to use more than 80/100 of the relevant housing site area, the requirement for securing ownership is mitigated for a housing construction project to obtain approval of the housing construction project plan, but “in cases of a housing association (excluding a housing remodeling association) that implements a project jointly with a registered project operator pursuant to Article 10(2)” (hereinafter “instant provision”).

In addition, Article 10 (2) of the former Housing Act provides that "where a housing association (excluding a housing remodeling association that does not increase the number of households) established pursuant to Article 32 constructs the housing of its members, it may implement a project jointly with a registered business operator (including a local government, the Korea Land and Housing Corporation, or a local government-invested public corporation), as prescribed by Presidential Decree. In such cases, a housing association and a registered business operator shall be deemed a joint business operator, and a housing association established pursuant to Article 32 of the former Housing Act means a regional housing association, workplace housing association, or housing remodeling association as prescribed in Article 2

However, such as the Defendant’s Intervenor, the instant provision cannot be applied to a rental housing association that is established for the purpose of constructing or purchasing a house and leasing it pursuant to Article 7(1) of the former Rental Housing Act (amended by Act No. 13474, Aug. 11, 2015; hereinafter “former Rental Housing Act”), on the ground that the said association does not constitute a housing association under Article 2 subparag. 11 of the former Housing Act, and thus, the instant provision is not applicable to obtaining approval for a housing construction project plan.

Meanwhile, according to the relevant statutes, such as Article 6(1) of the former Housing Act, Articles 3(1) and 14(1) of the former Rental Housing Act, Article 12(3) of the former Enforcement Decree of the Rental Housing Act (amended by Presidential Decree No. 26763, Dec. 28, 2015; hereinafter “former Enforcement Decree of the Rental Housing Act”), where a rental business operator purchases at least 9/10 of the area of land subject to the project (including cases where he/she has obtained consent to purchase from a landowner) to construct rental housing with an exclusive area of at least the number of units prescribed by Presidential Decree, if it is considerably difficult to implement the project without acquiring the remaining land, the Mayor/Do Governor may request the Mayor/Do Governor to designate a public project pursuant to Article 4 subparag. 5 of the former Rental Housing Act, and Article 16(5) of the former Enforcement Decree of the Rental Housing Act (amended by Presidential Decree No. 26763, Dec. 28, 2015; hereinafter “former Rental Housing Act”).

(2) In light of such provisions of the former Rental Housing Act and the former Enforcement Decree of the Rental Housing Act and the following circumstances, it is reasonable to view that, in the event that a rental housing association is designated as a public-service proprietor pursuant to Article 14(1) of the former Rental Housing Act, the requirements for securing ownership, etc. under the instant provision regarding the approval for a housing construction project do not apply.

① According to Article 14 of the former Rental Housing Act and Article 12 of the former Enforcement Decree of the Rental Housing Act, a rental business operator is scheduled to construct rental housing through expropriation under the Land Compensation Act for the remaining areas where a rental business operator has secured ownership or purchase rights over 90% of the area of land subject to business and has failed to secure ownership, etc.

② Under Article 14(1) of the former Rental Housing Act, where a rental business operator has secured ownership or right to purchase at least 90% of the area of the land subject to business, he/she shall be entitled to use at least 80% of the area of the land subject to business as a matter of course to satisfy the requirements of the instant provision, and may exercise the right to expropriate the remaining area that has not been secured. Therefore, it is unnecessary to file a claim for sale

(3) Therefore, it is legitimate for the Defendant to take measures to approve the instant business plan against the Defendant’s Intervenor, a rental business operator designated under Article 14(1) of the former Rental Housing Act on August 13, 2014, and Scar Construction, a joint rental business operator. Therefore, the Plaintiff’s assertion that the instant provision should apply to the approval of the instant business plan cannot be accepted.

B) The meaning of “area of land subject to business” under Article 14 of the former Rental Housing Act

(1) The "area of land subject to project" under Article 14 of the former Rental Housing Act is a question as to whether the "area of land subject to project" should include not only the site of the relevant rental housing, its appurtenant facilities, and welfare facilities, but also the site of the instant site necessary for the rental housing construction project.

(2) In light of the above, Article 14 of the former Rental Housing Act provides that "a person who installs arterial facilities pursuant to Article 23 of the Housing Act shall install such facilities prior to other housing construction projects or housing site development projects," and Article 13 of the former Rental Housing Act provides that "a person who installs key facilities pursuant to Article 23 of the former Rental Housing Act shall install such facilities prior to other housing construction projects or housing site development projects for rental housing construction projects." Thus, the former Housing Act applies to a person who installs key facilities, unless otherwise provided for in the Rental Housing Act. Thus, Article 23 (1) of the former Housing Act provides that where a housing construction business operator implements a housing construction project exceeding a certain scale, roads, waterworks and sewerage facilities shall be installed by local governments. However, in cases of road facilities including a housing construction project plan or housing site development project plan, if a housing construction business operator intends to build such facilities, it shall be construed that the former Rental Housing Act, as a rental housing construction project itself and public services, is divided into the installation of arterial facilities to be provided generally through the State or public organizations, and it does not include ownership in the relevant housing construction plan.

Therefore, it is legitimate for the Defendant’s Intervenor to take the designation under Article 14 of the former Rental Housing Act and the approval disposition of the instant business plan under Article 16 of the former Housing Act on the premise that he/she acquired ownership of at least 90% of the 33,361 square meters in the instant residential land, which falls under the instant residential land. Therefore, the Plaintiff’s aforementioned assertion cannot be accepted in other positions

2) Determination as to whether there is a defect in the procedure, such as the scope of agenda for determination of district unit planning and the hearing of residents’ opinions

A) According to the relevant laws and regulations, such as whether the scope deemed to be deemed the determination of the instant district unit plan is limited to the instant housing construction site, health zone, Articles 2 subparag. 10, 16(1), 17(1)5, and 30(1) of the former Housing Act, Article 15(5)1 of the Enforcement Decree of the Housing Act, Article 9(2)1 of the Enforcement Decree of the Housing Act, Article 2 subparag. 13, 65, and 99 of the National Land Planning and Utilization Act, when a person authorized to approve a project plan approves a housing project plan, a consultation with the head of the relevant administrative agency regarding the determination of the district unit planning zone and district unit planning under Article 30 of the National Land Planning Act shall be deemed to have been made, and if approval of the project plan is publicly notified, a person who intends to implement the housing construction project shall submit new documents concerning the determination of the district unit plan, such as the land and infrastructure facilities to which the person belongs, or new public facilities, including public facilities and waterworks facilities.

(1) In full view of the following circumstances, it is reasonable to view that a district unit plan is deemed to include not only a housing construction site but also an area essential for a housing construction project as well as an area where public facilities or snow facilities are installed.

① In light of the contents of the aforementioned relevant provisions, the matters concerning public facilities or arterial facilities are inevitably included in order to have a house to be newly built in accordance with the housing construction project plan as a residential unit, and the district unit planning decision naturally relating to the housing construction project plan is reasonable to take charge of the area where public facilities or arterial facilities are installed beyond the scope of the

② Article 17 of the former Housing Act provides that where several authorization, permission, etc. are individually granted to a person who intends to implement a housing construction project by an administrative agency, the procedures for authorization, permission, etc. are complicated. Thus, if the subject matters of authorization, permission, etc. are met, and there is an agreement with the head of the competent administrative agency, the subject matters of authorization, permission, etc. shall be deemed to have been subject to constructive authorization, permission, etc. at the time of approving the housing construction project plan, and thereby, the purpose of Article 17 of the former Housing Act is to promote procedural convenience and speediness by integrating various procedures for prompt processing of authorization, permission, etc. for a housing construction project. If the scope of a district unit plan deemed pursuant to Article 17(1)5 of the former Housing Act is limited to a housing construction site, the purpose of Article 17 of the former Housing Act may be colored due to the nature of the district unit

(3) If the scope of determination of a district-unit plan that is deemed an area outside of a housing construction site is limited to an area naturally related to the housing construction project plan, the purpose of the legal fiction of authorization and permission under Article 17 of the former Housing Act may also be examined without avoiding the provisions on various regulations or procedures for determination of a district-unit plan stipulated in the National Land Planning Act, etc.

(2) In full view of the following circumstances, it is reasonable to view that the instant road site constitutes an area that is naturally related to the instant project plan as an area where public facilities or arterial facilities are installed, and thus, the legal fiction of the instant district unit planning is included in the scope that the instant district unit planning decision becomes effective.

① In the process of consultation for the determination of the instant district unit plan, consultation was made including the instant road section map. The instant road site was included because it was connected to another road adjacent to the instant housing construction site in order to expand road width for smooth entry and exit of the instant housing unit planning zone.

② The area pertaining to the determination of the instant district unit plan is 36,954 square meters, among which the area of the instant housing construction site is 33,361 square meters, and 90.28 square meters, and the remainder of 3,593 square meters is 9.72% of the instant road site.

B) Furthermore, in light of the legislative intent of Article 17 of the former Housing Act for the efficient implementation of the project through procedural unification, so long as the person authorized to approve project plans has approved the project plan through consultation with the head of the relevant administrative agency pursuant to Article 17(3) of the former Housing Act, it shall be deemed that there exists the permission, authorization, decision, approval, etc. under Article 17(1) of the former Housing Act, and it shall not be necessary to take procedures, such as hearing the opinions of residents as prescribed under Article 28 of the National Land Planning and Utilization Act, separately from the procedure (see Supreme Court Decision 92Nu162, Nov. 10, 192). Thus, it is not necessary to take the procedure separately as to the instant road site included in the legal fiction of the instant district unit planning decision.

C) Therefore, the Plaintiff’s assertion to the effect that the instant road site does not include the instant site within the scope of deemed determination of the instant district unit planning, and the Plaintiff’s assertion to the effect that the procedures for hearing opinions of residents should be

6. Conclusion

Therefore, the defendant's supplementary intervenor's application for participation on January 21, 2016, which was added at the trial, is unlawful, and thus, it is dismissed as it is unlawful in the part of the lawsuit in this case that seeks the approval disposition of the project plan in this case and the revocation of the district unit plan in this case. The plaintiff's remaining claims are without merit. The judgment of the court of first instance is justified as it is in conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Kang Dong-dong (Presiding Judge)