[1] Whether the head of a Si/Gun who received an application for approval to establish an association shall approve the establishment of the promotion committee in cases where he/she confirms that at least 1/2 of the owners of a plot of land, etc. consent thereto and at least 5 members including the chairperson are constituted according to the documents attached to the application for

[2] Whether the regulations for operating the establishment promotion committee or the qualification of promoters and the method of selection are the requirements for the approval for establishment of promotion committee (negative)

[3] The case holding that in light of the fact that an administrative agency has an illegal administrative disposition in the examination of approval for establishment of an association, and there is no obligation to comply with such standard, it cannot be deemed that it violated the principle of equality, the principle of protection of trust, or the principle of self-regulation, and it can not be deemed that it arbitrarily approved the establishment promotion committee because it deviates from

[1] Article 13(2) and (3) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8852 of Feb. 29, 2008; see current Article 13(5)); Article 23 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents; Article 6 of the former Enforcement Rule of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Ordinance No. 4 of Mar. 14, 2008; / [2] Article 13(2) and (3) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8852 of Feb. 29, 2008; see current Article 13(5)); Article 6 of the former Enforcement Rule of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Ordinance No. 8852 of Mar. 14, 2008); Article 3)

[1] [2] Supreme Court Decision 2007Du12996 Decided July 24, 2008

Plaintiff (Attorney Kim Jae-chul et al., Counsel for the plaintiff-appellant)

The head of Seo-gu Gwangju Metropolitan City

Participant Housing Reconstruction Promotion Committee (Attorney Cho Jong-sik, Counsel for defendant-appellant)

Gwangju High Court Decision 2007Nu1735 decided July 3, 2008

The appeal is 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 briefs not timely filed).

1. As to the ground of appeal on the defect of consent by the owner of land

The illegality of administrative disposition should be determined on the basis of statutes and facts at the time of administrative disposition (see Supreme Court Decision 92Nu19033 delivered on May 27, 1993, etc.).

According to Article 13(2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8852, Feb. 29, 2008; hereinafter “former Act”), where it is intended to establish an association composed of owners of land, etc. to implement a rearrangement project, the committee shall be comprised of not less than five members including the chairperson with the consent of not less than 1/2 of the owners of land, etc. and the approval of the head of Si/Gun shall be obtained. According to each subparagraph of Article 6 of the former Enforcement Rule of the Act, a person who intends to obtain approval for establishment of the committee shall submit a written application for approval in attached Form 2 accompanied by a list of owners of land, etc., written consent, address and name of the chairperson and members, documents evidencing selection of members, etc. The consent of the committee shall not be limited to the form of consent of the owners of land, etc., the chairperson of the committee and the method of selection of members. However, Article 23(1) through (3) of the former Act, which applies mutatis mutandis under Article 20.

According to the facts and records admitted by the court of first instance as cited by the court below, the Intervenor joining the Defendant (hereinafter “ Intervenor”) began with the consent of the owners of lands, etc. from around 2003 to the establishment of an association, and filed an application for approval for establishment of the promotion committee of this case with the consent of 1,423 persons exceeding 2,63 and 1/2 of the owners of lands, etc. on January 16, 2006. However, on May 11, 2001, Nonparty 1, who was named as the chairman of the Intervenor promotion committee, was sentenced to a suspended sentence of 1 year and 6 months from the Gwangju District Court, and was under the suspended sentence until May 10, 204. In light of the above legal principles, even if some of owners of lands, etc. agreed to establish the promotion committee during the suspended period of the above Nonparty 1’s establishment, as long as the probation period had already been completed at the time of application for establishment of the promotion committee of this case, it cannot be concluded that the Intervenor’s qualification is void.

The plaintiff's assertion that there is such a defect in the consent of the owner of land, etc. is also a defect in the establishment of the intervenor's promotion committee and at the same time the defendant's argument about the disposition of approval of this case. Thus, considering that the plaintiff's argument is a defect in the establishment itself of the intervenor promotion committee, which is a basic act, the court below's claim for cancellation of the approval of this case is unlawful on the ground that there is no benefit of lawsuit, and it is erroneous that the defendant's claim for cancellation of the approval of this case is not proper. However, this part of the plaintiff's argument is obvious that it should be dismissed as it is without merit, and therefore, the above error of the court below does not affect

2. As to the ground of appeal as to the lack of operational regulations

In full view of Article 13(2) of the former Act, Article 23(1)1 of the former Enforcement Decree of the Act, and Article 6 of the former Enforcement Rule of the Act, the committee shall be composed of not less than five members including the chairperson. As such, the operating rules of the committee are not necessarily required until the approval for establishment of the committee is granted. Since the operating rules of the committee are prepared after the approval for establishment of the committee and the consent is obtained from the owners of the land, etc., the committee may not be required to establish the operating rules of the committee, and the qualification of promoters and the method of selection of promoters are not required for the approval for establishment (see Supreme Court Decision 2007Du12996, Jul. 24,

In the same purport, the court below is just in holding that when it intends to obtain approval for establishment of the promotion committee, the promotion committee is comprised of not less than five members pursuant to Article 13 (2) of the former Act and the number of members may be extended pursuant to the operational regulations of the promotion committee after obtaining the approval. The operational regulations of the promotion committee established by the Minister of Construction and Transportation pursuant to the delegation of Article 15 (2) of the former Act do not meet the requirements for establishment of the promotion committee, but only include operational regulations after its establishment. Thus, the court below did not err in the misapprehension of legal principles as to the establishment of non-corporate associations, as otherwise alleged in the grounds of appeal.

3. As to the grounds of appeal on violation of the principle of equality or the principle of trust protection

In general, in administrative legal relations, in order to apply the principle of the protection of trust to an administrative agency’s act, an administrative agency must be premised on the fact that the administrative agency issued an official opinion that is the subject of trust to an individual (see Supreme Court Decision 98Du4061, May 8, 1998, etc.). The principle of equality is prohibited from arbitrarily treating the same in essence differently, and even if illegal administrative dispositions were taken repeatedly over several times, if such disposition is illegal, it cannot be said that the administrative agency has the self-defense power against the administrative agency.

The lower court determined that the Defendant could not be deemed to have arbitrarily rendered the instant approval disposition by abusing or abusing its discretion, in light of the following: (a) the Defendant demanded that the Committee be organized by at least 100 members at the time of Nonparty 2’s return of the application for approval of the Committee; and (b) even if there exist precedents that consider that the written consent without the date is invalid, the Defendant did not have an obligation to comply with such standards when examining the approval of the Intervenor’s promotion committee.

In light of the above legal principles and records, the judgment of the court below is just, and there is no error of law such as misunderstanding of legal principles as argued in the Grounds for Appeal.

4. 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 Kim Young-ran (Presiding Justice)