[1] Whether a member of a housing redevelopment project association loses his/her status where he/she becomes a person subject to cash liquidation (affirmative)

[2] The case holding that even after the management and disposal plan was approved, the articles of incorporation of the Housing Redevelopment Project Association cannot be deemed null and void, that the union members who did not enter into a contract for sale within the period of conclusion of the contract for sale in lots can

[3] The procedure for the implementer of a housing redevelopment project to receive real estate in the rearrangement zone in accordance with Article 49 (6) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents

[1] In addition to the contents and form of Article 47 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9729 of May 27, 2009; hereinafter “former Act”), the purpose of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents is to enable a cooperative member who did not apply for parcelling-out to implement a housing redevelopment project without prompt and smooth interference by allowing a cooperative member to liquidate cash. It is not consistent with the intent of the parties concerned that a cooperative member becomes unable to exercise the right to claim parcelling-out, which is the most important right of the union member, due to a cooperative member's cash liquidation. Even if the person subject to cash liquidation does not recognize the status of a cooperative member and completes legal relations with the cooperative through cash liquidation, the person subject to cash liquidation can be paid the liquidation through the procedure of expropriation under the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor if it is not decided or concluded through consultation with the cooperative, and it constitutes the requirement of withdrawal or withdrawal of the previous land or building.

[2] In a case where the articles of association of a housing redevelopment and improvement project association stipulate the same contents as Article 47 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9729 of May 27, 2009, hereinafter the "former Act"), and provide that the provisions apply mutatis mutandis to the association members who did not conclude a sales contract within 60 days after the approval of the management and disposal plan, the case holding that the above association members can be subject to cash settlement unless there are special circumstances due to the failure to conclude a sales contract within the period of the sales contract under the articles of association even after the approval of the management and disposal plan, and such provisions of the articles of association aim to additionally provide the association members with an opportunity to settle cash by leaving their status even after the approval of the management and disposal plan,

[3] In order for a project implementer of a housing redevelopment project to start the project, it is not sufficient that the management and disposal plan is authorized and publicly announced to the person subject to the settlement of cash who is not a member to receive the land or buildings in the rearrangement zone. Furthermore, the consultation or expropriation procedure should be conducted in accordance with the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9729 of May 27, 2009; hereinafter “former Act”). If the consultation or expropriation procedure is not followed, it is not possible to seek the transfer of the land or buildings against the person subject to settlement of cash notwithstanding the provisions of Article 49(6) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9729 of May 27, 2009; hereinafter “former Act”). If the consultation on the settlement amount between the association and the person subject to settlement of cash is reached, the obligation to pay the liquidation amount and the obligation to deliver the real estate,

[1] Article 47 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9729 of May 27, 2009) / [2] Article 47 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9729 of May 27, 2009), Article 105 of the Civil Act / [3] Articles 38, 40 (1), 47, and 49 (6) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9729 of May 27, 2009), Article 62 of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor, Article 536 of the Civil Act

Seoul District Housing Redevelopment and Improvement Project Association (Attorney Don-do et al., Counsel for the plaintiff-appellant)

Defendant

Busan District Court Decision 2008Na11013 Decided November 7, 2008

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 47 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9729 of May 27, 2009; hereinafter “former Act”) provides that a project implementer for a housing redevelopment project, etc. shall liquidate land, buildings, or other rights in cash within 150 days from the date he/she falls under the case with respect to “a person who fails to file an application for parcelling-out,” “a person who has withdrawn an application for parcelling-out,” “a person who is excluded from the objects of parcelling-out under the management and disposal plan approved under Article 48 of the former Act” among the landowners of land, etc.

In addition to the contents and form of the above provision, the purpose of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents is to ensure that housing redevelopment projects can be implemented without prompt and smooth interference by allowing a cooperative member who has not filed an application for parcelling-out to settle in cash. It is not consistent with the intention of the parties to whom a cooperative member is unable to exercise the right to claim parcelling-out, which is the most important right of the cooperative member due to a cooperative member's becoming a person subject to cash liquidation. Even if a person subject to cash liquidation does not recognize the status of a cooperative member and completes legal relations between the cooperative through cash liquidation, the person subject to cash liquidation can be paid the liquidation through expropriation procedures under the Act on the Acquisition of Land, etc. for Public Works and the Compensation for Compensation therefor (hereinafter "Public Works Act"), and as seen below, it is reasonable to view that the person subject to cash liquidation has lost the status of a cooperative member as a person subject to cash settlement because it falls under the requirements of Article 47 of the former Act, such as failing to apply for parcelling-out or withdrawing the liquidation amount from the cooperative.

Meanwhile, Article 45(4) of the articles of association of the Plaintiff Union provides for the same contents as those of Article 47 of the former Act, and Article 45(5) provides that Paragraph (4) shall apply mutatis mutandis to the members who have not concluded a contract for sale within 60 days after the approval of the management and disposition plan. According to such provision, even after the approval of the management and disposition plan, the members of the Plaintiff Union may become subject to cash settlement due to the failure to conclude the contract for sale within the period for the contract for sale under the above articles of association, unless there are special circumstances. This provision of the articles of association aims to additionally provide members with an opportunity to settle cash by leaving the position of the members even after the approval of the management

In the same purport, the lower court is justifiable to have determined that the Defendant became a person subject to cash settlement by demanding cash settlement on the premise that the Defendant left the position of its members and failing to comply with the conclusion of the sales contract within the period prescribed by the articles of association. In so doing, it did not err by misapprehending the legal principles as to the scope of a person subject to cash settlement or legal status under the former Act

2. As to the grounds of appeal Nos. 2 and 3

Article 49(6) of the former Act on the Maintenance and Improvement of Urban Areas provides that the owner, superficies, leaseer, etc. of the previous land or building shall not use or benefit from the previous land or building until the date of public announcement of transfer under Article 54.

In addition, according to Articles 38, 40(1), and 47 of the former Act, and Article 48 of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, a project developer for a housing redevelopment project shall liquidate land, buildings, and other rights in cash within 150 days from the date he/she becomes eligible for the settlement of cash by failing to apply for parcelling-out among the owners of land, etc. or withdrawing the application for parcelling-out, etc. among the owners of land, etc., but the liquidation amount shall be calculated by consultation with the person subject to cash settlement, and if the consultation fails to reach an agreement, the expropriation procedure under the Public Works Act is scheduled to be implemented. Article 62 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Public Works provides that the project developer

In full view of these provisions, it is insufficient for a project implementer of a housing redevelopment project to receive land or buildings within the rearrangement zone owned by a person who is not a member of the association in order to commence the project. Furthermore, the management and disposal plan to receive the land or buildings within the rearrangement zone is not sufficient, and the consultation or expropriation procedure is required as prescribed by the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions. If the consultation or expropriation procedure is not completed, it is a constitutional interpretation that guarantees the property rights of the people. If the consultation on the liquidation amount between the association and the person who is subject to cash liquidation is reached, the obligation to pay the liquidation amount and the obligation to deliver the real estate, such as the land subject to cash liquidation, should be carried out simultaneously prior to the transfer of the real estate.

In the same purport, the lower court is justifiable to have rejected the Plaintiff’s claim on the ground that the Plaintiff did not have the right to request the delivery of real estate under Article 49(6) of the former Act, which is alleged as the cause of the instant claim, because the Plaintiff did not undergo consultation or expropriation procedures on the liquidation amount against the Defendant. In so doing, it did not err by misapprehending the legal principles as to the requirements for application of Article 49(6) of the

In addition, as long as it is not necessary to determine the defendant's defense because the plaintiff's ground for appeal is not recognized as above, the judgment below did not err in violating the principle of pleading as alleged in the ground for appeal.

3. Conclusion

Therefore, the appeal is 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.

Justices Ahn Dai-hee (Presiding Justice)