[1] The case holding that in a case where the Housing Redevelopment Project Establishment Promotion Committee decided to select the executor at the residents' general meeting, the owners of the land, etc. in the above project implementation district have the interest in seeking confirmation of invalidity of the resolution at the general meeting

[2] Whether a committee for promotion of the establishment of a housing redevelopment project partnership can adopt a resolution to select a city construction project at the residents' general meeting (negative)

[1] The case holding that in a case where the committee for the establishment of a housing redevelopment project association decided to select a work executor at a residents' general meeting, since Article 24 (3) 6 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7960 of May 24, 2006) provides that the selection of a work executor shall be the resolution of the general meeting of the association, while Article 15 (4) of the same Act provides that the rights and obligations related to the duties performed by the committee for the association shall be comprehensively succession, there may be controversy as to whether the above resolution is succeeded by the association to be established in the future, the owners of land, etc. within the project implementation district, who are qualified as members of the committee for the above promotion, shall be entitled to seek nullification of the resolution of the general meeting, since their rights and

[2] Article 14 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7960 of May 24, 2006) and Articles 22 and 23 of the Enforcement Decree of the same Act provide for the duties of the association establishment promotion committee and provide for the consent of the owners of land above a certain ratio of the work involving the bearing of expenses by the owners, such as land, etc., but there is no separate provision regarding the selection of the contractor. Article 24 of the same Act explicitly provides that the selection of the contractor shall be subject to the resolution at the general meeting of the union members. Article 8 of the same Act explicitly provides that the housing redevelopment project shall be implemented by the association or the association may be jointly implemented with the constructors with the consent of the majority of the union members. In light of the relevant provisions of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, it is reasonable to view

[1] Article 250 of the Civil Procedure Act, Articles 11(1), 15(4), and 24(3)6 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7960 of May 24, 2006) / [2] Articles 8(1), 11(1), 14, 15(4), and 24(3)6 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7960 of May 24, 2006), Articles 22 and 23 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 2022 of August 17, 2007)

Plaintiff 1 and eight others (Attorney Park Jae-won et al., Counsel for the plaintiff-appellant)

The Housing Redevelopment and Improvement Project Promotion Committee (Law Firm Cheong Law, Attorneys Lee Dong-han et al., Counsel for the plaintiff-appellant)

August 17, 2007

1. On July 31, 2006, the resolution selected by the defendant as a joint implementer of housing redevelopment and rearrangement project at the residents' general meeting shall be confirmed as null and void.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

A. The defendant is established under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents on April 21, 2006, which was approved by the head of Busan Metropolitan City on April 21, 2006 for the purpose of establishing an association that implements a housing redevelopment improvement project by making the amount of 57,800 square meters per day of Busan Jin-gu 2-dong, Busan Metropolitan City 62 square meters as the project implementation district, and the plaintiffs are the owners of land, etc. in the project implementation district, who agreed to the establishment of the defendant.

B. On June 22, 2006, the Defendant held a meeting of the promotion committee to determine the method of selecting the work executor to carry out the joint project, and resolved to present the case of selecting the work executor to the residents’ general meeting.

C. In order to select a contractor according to the above resolution, the Defendant announced a public announcement on July 8, 2006, and held the site site conference on July 11, 2006, and was submitted only from the Hanhwa Construction Co., Ltd. (hereinafter “Korea”).

D. After that, on July 17, 2006, the Defendant issued a notice of convening a residents’ general meeting (hereinafter “instant general meeting”) to the owners of the land, etc. in the said project implementation district to select a work executor. On July 14, 2006, the Defendant issued a notice of convening a local residents’ general meeting (hereinafter “instant general meeting”). On July 31, 2006, around 14:00, 215 from among the 399 owners of the land, etc., s/he attended 39 and declared that the number of 215 of the owners of the land, etc. should meet the quorum for holding a local residents’ general meeting, and the Defendant issued a vote as to whether to select a sole bidder as a work executor, and subsequently declared that the Hancheon construction was selected as a contractor with the consent of a majority

[Reasons for Recognition] The facts without dispute; Gap evidence Nos. 1 through 4; Eul evidence Nos. 1 through 5; each fact inquiry conducted to the head of Busan Metropolitan City Busan Metropolitan Government; the purport of the whole pleadings

2. Relevant laws and regulations;

former Urban Improvement Act (amended by Act No. 7960 of May 24, 2006)

Article 8 (Implementers of Housing Redevelopment Projects, etc.)

(1) A housing redevelopment project may be implemented by a cooperative under Article 13 (hereinafter referred to as the "cooperative") or jointly conducted by the cooperative with the head of Si/Gun, housing construction works, etc., constructors under Article 9 of the Framework Act on the Construction Industry (hereinafter referred to as the "contractor"), registered business operators deemed constructors under Article 12 (1) of the Housing Act (hereinafter referred to as the "registered business operators"), or other persons who meet the requirements prescribed by Presidential Decree, with the consent of a majority of its members.

Article 11 (Selection of Work Executor)

(1) Each housing reconstruction project association shall select a constructor or registered project operator as the contractor after obtaining authorization to implement the housing reconstruction project.

Article 13 (Establishment of Partnership and Composition of Promotion Committee)

(1) Where persons other than the head of a Si/Gun or the Korea Housing Corporation, etc. intend to implement a rearrangement project, they shall establish an association comprised of landowners, etc.: Provided, That the same shall not apply where owners of land, etc. under Article 8 (3) intend to independently implement an urban environment rearrangement

(2) Where it is intended to establish an association pursuant to paragraph (1), it shall be organized with at least five members including the chairperson with the consent of a majority of the owners of land, etc. and shall obtain approval from the head of a Si/Gun in accordance with the methods and procedures prescribed by the Ordinance of the Ministry of Construction and Transportation.

Article 14 (Functions of Promotion Committee)

(1) Every promotion committee shall perform the following duties:

1. Affairs concerning an application for a safety diagnosis under Article 12;

2. Selection of the specialized management businessman of rearrangement project under Article 69 (hereinafter referred to as the “specialized management businessman of rearrangement project”);

3. Preparation of a rough implementation plan for an improvement project;

4. Preparatory affairs for obtaining authorization for the establishment of a cooperative;

5. Other affairs necessary for promoting an establishment of the partnership, which are prescribed by the Presidential Decree.

(3) Where the contents of the business performed by the promotion committee under paragraph (1) involve the bearing of costs by the owners, such as the land, etc. or cause any change in the rights and duties, the promotion committee shall obtain the consent of the owners of the land, etc. in excess of

Article 15 (Composition and Operation of Promotion Committee)

(4) The promotion committee shall report the duties performed by the promotion committee to a general meeting under Article 24 (hereinafter referred to as the "general meeting"), and the rights and duties related to the duties performed by the promotion committee shall be comprehensively taken over by the partnership.

Article 17 (Method, etc. of Consent of Owners of Land, etc.) Necessary matters concerning Methods and procedures, etc. for calculating consent of the owners of land, etc. under Articles 13 through 16 shall be prescribed by Presidential Decree.

Article 24 (Convening of General Meeting and Matters for Resolution)

(1) A general meeting comprised of union members shall be established.

(3) The following matters shall undergo a resolution at a general meeting:

6. Selection and alteration of the removal businessman, work executor and designer;

Enforcement Decree of the former Urban Improvement Act (amended by Presidential Decree No. 2022 of August 17, 2007)

Article 22 (Duties of Promotion Committee) "Duties prescribed by Presidential Decree" in Article 14 (1) 5 of the Act means the following matters:

1. Preparation of operational rules for the committee for the establishment of an association (hereinafter referred to as the “promotion committee”) under Article 13 (2) of the Act;

2. Demand for written consent of landowners, such as land;

3. Preparation for the inaugural general meeting for establishment of associations;

4. Preparation of the articles of association;

5. Other matters prescribed by operational regulations of the promotion committee.

Article 23 (Consent of Owners of Land, etc. for Affairs of Promotion Committee)

(1) The promotion committee under Article 14 (3) of the Act shall obtain the consent of landowners, etc. in accordance with the standards falling under each of the following subparagraphs, when the contents of its business are accompanied by the bearing of expenses or cause any change in rights and duties. In such cases, matters other than those falling under the following subparagraphs shall be governed by the operational regulations of the promotion

1. Matters requiring the consent of more than 2/3 of the owners, such as land, etc. or the land, etc. consenting to the composition of the promotion committee;

(a) Preparation of operational regulations of the promotion committee;

(b) Expansion or reduction of the scope of implementing the rearrangement project;

2. Matters requiring consent of a majority of owners, including land, etc. consenting to the composition of the promotion committee;

(a) Selection of the specialized management businessman of rearrangement project under Article 69 of the Act (hereinafter referred to as the “specialized management businessman of rearrangement project”);

(b) Formulation of an outline project implementation plan;

(2) Provisions of Article 28 (1) and (4) shall apply mutatis mutandis to the calculation of the number of consenters to the owners of land, etc. under paragraph (1).

3. Determination on this safety defense

A. The defendant's main defense

Even if the defendant adopted a resolution on July 31, 2006 that the company was selected as the contractor for the construction of Korean currency at the Residents' General Meeting (hereinafter "the resolution of this case"), in light of the fact that the redevelopment partnership or its members' general meeting to be established in the future does not necessarily have the obligation to select as the contractor for the construction of Korean currency because it is bound by the resolution of this case, and thus, the resolution of this case does not have any legal effect until it is ratified at the general meeting of its members, it cannot be deemed that there is any apprehension and danger in the plaintiffs' rights or legal status. The filing of the lawsuit of this case cannot be deemed as an effective and appropriate means in resolving the dispute of this case. Thus, the lawsuit of this case

(b) Markets:

On January 31, 2007, the defendant argued that the resolution of this case is valid in the lawsuit of this case. In Article 24 (3) 6 of the Urban Improvement Act, while Article 15 (4) of the same Act provides that the selection of the contractor shall be decided by the general meeting of the partnership, the rights and obligations related to the business performed by the promotion committee of this case shall be comprehensively taken over by the partnership. Thus, there may be controversy as to whether the plaintiffs are succeeded to the rights and obligations of the association to be established in the future. The plaintiffs are the owners of the land within the redevelopment project district of this case as the owner of the land within the redevelopment project district of this case, who are qualified for the defendant's membership by consenting to the composition of the defendant, the defendant is the owner of the land within the redevelopment project district of this case. On January 31, 2007, the construction contract of this case was concluded with the Corporation and the Corporation selected as the contractor received financial resources necessary for the defendant's operation and the implementation of the project, there is a high possibility of dispute.

4. Judgment on the merits

A. Determination on the cause of the claim

However, Article 14 of the Act on the Maintenance and Improvement of Urban Areas and Articles 22 and 23 of the Enforcement Decree of the same Act stipulate that the defendant's business shall be subject to the consent of the owners of land, etc. in excess of a certain ratio of the cost-bearing by the owners of the land, etc., but there is no separate provision regarding the selection of the work executor, and Article 24 of the same Act explicitly stipulates that the selection of the work executor shall be subject to the resolution of the general meeting of the association members, and Article 8 of the same Act explicitly stipulates that the housing redevelopment project can be implemented by the association or the association with the consent of a majority of the association members, etc. In light of the above provisions, it is reasonable to deem that the selection of the work executor is not the authority of the general meeting of the association members, but the authority of the general meeting of the association members to be established in the future. Thus, the resolution of this case is null and void (the plaintiffs asserted that other defects than the defect of the contents of the resolution of this case.)

B. Judgment on the defendant's assertion

(2) Before the revision on March 18, 2005, the Defendant: (a) prescribed in Article 11(1) that “the owner of the association or land, etc. shall select as the constructor under the provisions of Article 9 of the Framework Act on the Construction Industry or under the provisions of Article 12(1) of the Housing Act after obtaining authorization for the implementation of the construction project; (b) prescribed that all of the housing reconstruction projects or housing redevelopment projects can be selected as the constructor after obtaining authorization for the implementation of the construction project; and (c) revised on March 18, 2005 as stipulated in Article 7392 (Enforcement Date of March 18, 2005) that “the housing reconstruction project cooperative shall select as the constructor or the registered business operator after obtaining authorization for the implementation of the construction project; and (d) prescribed in Article 11(1) that “the housing redevelopment project cooperative shall be selected as the redevelopment project implementer or the redevelopment project implementer at the 3rd stage after obtaining the authorization for the implementation of the construction project.”

As the Urban Improvement Act was amended on March 18, 2005 to Act No. 7392 (amended on March 18, 2005), housing redevelopment project does not have any direct restriction on the timing for selecting a contractor at the time of holding the residents' general meeting. However, as seen earlier, it is reasonable to view that the authority to select a contractor is the inherent authority of the general meeting of partners. Thus, it is sufficient to interpret that the selection of a contractor is limited to the approval of a general meeting of partners after the resolution of the promotion committee at the promotion committee or belongs to the defendant's business scope, contrary to the purport of the above Act. In light of the above Act, it is difficult to recognize that the defendant's reasons for the amendment of the Urban Improvement Act, which was amended to Act No. 7392, Mar. 18, 2005, which was amended to Act No. 7392, and thus, it is difficult to recognize that the redevelopment project can be implemented in the stage of redevelopment project, not by the redevelopment promotion committee at the promotion committee at the stage but by the redevelopment project.

5. Conclusion

Therefore, the plaintiffs' claim of this case is reasonable, and it is so decided as per Disposition.

Judges Lee Ho-ho (Presiding Judge)