Plaintiff 1 and eight others (Attorney Kim Byung-soo, Counsel for the plaintiff-appellant)

[Plaintiff-Appellant] Plaintiff 1 and 2 others (Law Firm Lee & Lee LLC, Attorneys Lee Dong-seok et al., Counsel for plaintiff-appellant)

September 30, 2008

Seoul Northern District Court Decision 2007Gahap3593 Decided November 23, 2007

1. Revocation of a judgment of the first instance;

2. The plaintiffs' primary claims are dismissed.

3. The plaintiffs' preliminary claims added at the trial are dismissed.

4. The costs of the lawsuit are assessed against the Plaintiffs.

1. Purport of claim

In the first place, on March 23, 2006, the resolution selected by the committee for promotion of the Housing Redevelopment and Improvement Project Association in Zone Five (hereinafter referred to as the "Defendant's committee for promotion, the defendant's association's association's division is invalid. In the second place, the resolution selected by the resident's general meeting as the executor of the housing redevelopment and improvement project as the substitute industrial company is confirmed as invalid. The resolution selected by the defendant's association as the executor of the housing redevelopment and improvement project at the association's general meeting on April 29, 2008 is confirmed as invalid (in addition, the preliminary claim in the first instance).

2. Purport of appeal

The plaintiffs' primary claims are dismissed in the same judgment as the disposition Nos. 1 and 2.

1. Basic facts

A. The Defendant promotion committee was established for the purpose of establishing an association to implement a housing redevelopment improvement project (hereinafter “instant redevelopment project”) under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”) on a site of 253-1, 41430 square meters in Dongdaemun-gu, Dongdaemun-gu, Seoul, Dongdaemun-gu, and was approved by the head of Dongdaemun-gu Seoul Metropolitan Government on December 16, 2005. The Plaintiffs are the owners of land, etc. within the instant redevelopment project district.

B. On January 17, 2006, the Defendant Promotion Committee decided to select the alternative forest industry corporation as the developer of the instant redevelopment project (hereinafter “alternative forest industry”) at the residents’ general meeting held on March 23 of the same year, after finishing the rearrangement project management business entities, or the selection work of the designer.

C. In addition, on July 20, 2007, the Defendant Promotion Committee held a general meeting of residents for the establishment of a housing redevelopment project partnership and passed a resolution on the agenda such as the enactment of the articles of association, the appointment of partnership officers, and the ratification of the execution affairs of the promotion committee including the selection of a contractor. Since then, the Defendant Promotion Committee obtained the authorization of establishment of the Defendant Association from the head of Dongdaemun-gu on February 27, 2008 with the consent of at least 3/4 of the owners of the land, etc. and completed the registration of incorporation of the Defendant Association on March

D. After that, on April 29, 2008, the Defendant Union held a general meeting of partners and passed a resolution with a concurrent vote of 214 on the agenda items to select the large forest industry as the contractor in the presence of 216 members (including written references).

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2, Gap evidence 2, 3, 4, Eul evidence 4, 5, 9, 13, and the purport of the whole pleadings

2. Determination as to the legitimacy of a lawsuit as to the main claim

On March 23, 2006, the Plaintiffs seek confirmation of the invalidity of the resolution that Defendant Promotion Committee selects the substitute industry as the contractor on the ground that the primary claim is not the promotion committee but the inherent authority of the Housing Redevelopment Association.

In light of the relevant provisions such as the Urban Improvement Act, the duties concerning the selection of a contractor under the Urban Improvement Act are not included in the duties of the promotion committee (Article 14 of the Urban Improvement Act and Articles 22 and 23 of the Enforcement Decree of the same Act); the housing redevelopment project is implemented by the partnership or jointly implemented with the constructors, etc. with the consent of a majority of the union members (Article 8 of the Urban Improvement Act); the selection of a contractor shall undergo a resolution of the general meeting of union members (Article 24(3)6 of the Urban Improvement Act); and the selection of a contractor shall be deemed to be the inherent authority of the general meeting of union members (see Supreme Court Decision 2008Da6298, Jun. 12, 2008).

However, even if the above selection of the work executor is null and void, insofar as the general meeting of the members of the defendant association decided to select the substitute industry as the work executor by its own authority, barring special circumstances such as the absence or invalidity due to the defect in the resolution of the general meeting of the members of the association or the cancellation of the resolution, it is merely seeking confirmation of the past legal relations or legal relationship and thus lacks the requirements for protection of rights. Thus, it cannot be recognized that there is such defect as above in the resolution of the general meeting of the members of the defendant association as to the main claim of this case, and therefore, the plaintiffs' lawsuit on the main claim of this case is unlawful as there is no benefit of confirmation.

3. Judgment on the conjunctive claim

A. The plaintiffs' assertion

As the conjunctive claim of this case, the Plaintiffs asserted that the resolution of the above general meeting of partners was erroneous and sought confirmation of its invalidity.

(1) The above resolution of the general meeting of partners is based on the premise that the defendant association was duly constituted. The authorization of the establishment of the defendant association is unlawful because it does not meet at least 3/4 of the owners of the land, etc., which is the requirement for the establishment of the association, such as the alteration of the written consent for the establishment of the association by the owners of the land, etc. in the process of its application, and the plaintiffs have filed a lawsuit seeking revocation of the above authorization disposition.

See The above resolution of the general meeting of partners is merely a formal ratification of the work executor selected by the defendant's promotion committee, and it is unlawful as it actually infringes on the right to select the work executor, which is the inherent authority of the general meeting of partners, as well as by the competitive bidding stipulated by the Urban Improvement Act.

B. Whether the procedure for the approval of the defendant association and the resolution of the above general meeting of its members is legitimate

First of all, as to whether the establishment of the defendant association is legally constituted, there is no dispute between the parties, but there is room for revocation of the establishment authorization of the defendant association in the above lawsuit in the future, even though there is room for revocation of the establishment authorization of the defendant association in the above lawsuit, there is no evidence to recognize it as present, and there is no evidence to prove any defect in the establishment authorization disposition of the defendant association. Thus, it cannot be said that the resolution of the above general meeting of the members of the defendant association was illegal due to the defect in the establishment authorization disposition of the defendant association, since there is no evidence to prove any defect in the establishment authorization disposition of the defendant association.

In addition, even if there is a defect in the above resolution of the general meeting of partners, there is no evidence as to the fact that the exercise of voting rights by written or proxy is allowed by the resolution of the general meeting of partners by the defendant association, and there is any defect in the resolution. Therefore, this part of the plaintiffs' assertion is not acceptable.

C. Whether a competitive bid is required and whether the right to select a contractor at a general meeting of partners is infringed

(i) Whether it is necessary to conduct competitive bidding

Article 11(1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents provides that “The owner of an association or land, etc. shall select a constructor under Article 9 of the Framework Act on the Construction Industry or a registered constructor under Article 12(2) of the Housing Act after obtaining authorization for the implementation of the housing redevelopment project as the method of competitive bidding as determined by the articles of association, etc. of the association.” Paragraph (2) of the same Article provides that “The owner of the association or land, etc. under paragraph (1) shall select a constructor by the method of competitive bidding as determined by the Minister of Construction and Transportation after obtaining the authorization for the implementation of the housing redevelopment project shall select a constructor under paragraph (1) by the method of competitive bidding as determined by the articles of association, etc. of the association after obtaining the authorization for the implementation of the housing redevelopment project, and the association shall select a constructor or a housing reconstruction project executor under Article 11(2) of the Act as the method of performing the housing redevelopment project after obtaining the authorization for the implementation of the housing redevelopment project.”

Therefore, Article 11(2) of the amended Act concerning the limitation on the method of selecting a work executor does not apply to the defendant union which obtained approval from the committee prior to the enforcement of the amended Act (Act No. 7960 of May 24, 2006). Meanwhile, the amended Act (Act No. 7392 of March 18, 2005, which was the Act at the time when the defendant's committee approval was obtained, did not provide any provision concerning the method of selecting a work executor in the case of a housing redevelopment project. Thus, in the case of the defendant union, the method of selecting a work executor at the general meeting of the members is not necessarily subject to competitive bidding because there is no legal limitation on the method of selecting a work executor at the general meeting of the members. Thus, this part of the

She Whether the power to select the contractor of the General Meeting of Members has been substantially infringed

In addition, the above resolution of the general meeting of partners is merely a mere formally ratification of the executor selected by the defendant's association members, and the above resolution of the general meeting of partners is not sufficient for 20 persons who participated in the above resolution of the general meeting of partners and 20 persons who participated in the above resolution of the general meeting of partners, including the above 20 persons who participated in the above resolution of the general meeting of partners and 20 persons who participated in the above resolution of the general meeting of partners. 6 persons who participated in the above resolution of the general meeting of partners and 20 persons who participated in the above resolution of the general meeting of partners. 6 persons who participated in the above resolution of the general meeting of partners including the above 20 persons who participated in the above resolution of the general meeting of partners. 3 persons who participated in the above resolution of the general meeting of partners, including the above 20 persons who participated in the construction of the construction company and 20 persons who participated in the new resolution of the general meeting of the construction company.

D. Sub-determination

Therefore, the plaintiffs' preliminary claims cannot be accepted.

4. Conclusion

Therefore, the plaintiffs' primary claim part is dismissed, and the judgment of the court of first instance is unfair, and it is so revoked, and the plaintiffs' primary claim part is dismissed, and the plaintiffs' primary claim is dismissed in the trial. It is so decided as per Disposition.

Judges Lee In-bok (Presiding Judge)

1) According to Article 22 of the Articles of Incorporation (Attachment to the Certificate No. 4), the exercise of voting rights in writing or by proxy is permitted. The number of members present at this time includes such written resolution or by proxy. In addition, the resolution of the resident general meeting as seen earlier also allows the above method of resolution under Article 22 of the Operational Rules of the Defendant Promotion Committee (Evidence No. 4) and thus, it includes written resolution or proxy resolution.

2) The plaintiffs pointed out that the defendant's promotion committee borrowed KRW 907,928,00 from the big industry to May 15, 2007 and paid KRW 894,165,00 among them as project expenses, operating expenses, etc., and they seem to have raised a flexible question between the officers of the promotion committee and the work executor. However, there is no specific explanation or basis as to which problem arises. Meanwhile, the above amount of expenditure is used for the cost of service of the maintenance company, urban design cost, design service cost, general meeting holding cost, office operating expenses, etc., and the amount of expenditure is the minimum amount necessary for the promotion of the redevelopment project (Evidence 5-2).