(영문) 서울행정법원 2009.9.25.선고 2008구합35248 판결

1) Project contents: Housing redevelopment project under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents

2) Business area: ○○-dong, Seoul, ○○-dong, ○○-dong, 64, 357. 7m square meters

3) Authorization to establish a defendant cooperative: November 29, 2006

4) Authorization for project implementation: September 3, 2007

(b) Formulation and authorization of a management and disposal plan;

1) General meeting of management and disposition plans: October 25, 2007 and March 12, 2008

2) Authorization and disposition: June 5, 2008 (the head of ○○○○-gu Seoul Metropolitan Government)

C. The Plaintiff (designated parties; hereinafter “Plaintiff”) is a member of the Defendant Union who owns the land, etc. in the instant business area.

【Uncontentious facts, Gap 5, 6, 7 evidence, Eul 1, 4, and 5 evidence, and the purport of the whole pleadings.

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

The instant disposition is unlawful on the following grounds.

1) The Defendant entered into a public contract with construction business chain ○ Construction Co., Ltd. (hereinafter “○○ Construction”) by increasing the construction cost per square meter from KRW 2,596, 80 to KRW 3,965, and KRW 00 as stipulated in the A contract. Based on the above amount, in setting the instant management and disposal plan based on the above amount, the estimated amount of expenses for removal and construction of the buildings increased from KRW 146,345,00, KRW 226,809, KRW 455, and KRW 00 from KRW 146,345, KRW 00 to KRW 226,809, KRW 455, and KRW 00. This is a modification to the cost sharing under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, but did not obtain the consent of at least 4/5 of the members.

2) On October 25, 2007, the Defendant Union submitted a written resolution at the general meeting for administration and disposal of land and buildings on the written resolution and on October 25, 2007, but did not notify in advance the appraised value of the rights of the previous land and buildings and the amount of additional charges.

3) On October 25, 2007, the Defendant Union prevented the members from expressing their intention and voting during the process of a resolution by the self-management and disposal meeting, and infringed the members’ right to attend the general meeting, the right to give advice, voting rights, etc., and did not undergo a resolution by the general meeting of the members in amending the management and disposal plan.

B. Facts of recognition

1) On June 30, 2003, the committee for promotion of the establishment of the defendant partnership (hereinafter referred to as the "committee for promotion") set the construction cost per square meter of the new building as 2,596,80 won ( pure construction cost 2,393,300 won + 203,500 won for moving expenses + 500 won) and entered into a contract for the construction work under the fixed contract system with the contents of the construction work to be performed under the fixed contract system. On August 18, 2006, the contract for the inaugural general meeting of the defendant partnership, which was held on August 18, 2006, was ratified by the contract for the construction work with such contents.

2) Around that time, the Promotion Committee submitted a written consent from 699 owners of the land, etc. in the instant rearrangement zone (hereinafter “instant consent”). Of the instant consent, the estimated cost of removal and new construction of the building was calculated as KRW 146, 345, 00,00 based on the project cost per square meter of the building that was newly constructed by ○○ Construction’s project participation proposal and construction contract.

3) On May 23, 2007, the Defendant Union ratified the selection of a contractor for ○ Construction and the conclusion of a self-contract for construction as of June 30, 2003 between ○○ Construction and ○ Construction.

4) After that, between September 27, 2007 and ○○ Construction, the Defendant Union concluded a contract for construction work that sets the construction cost on the basis of the increase of the pure construction cost per square meter from KRW 2,596, KRW 800 to KRW 3,965,00, and KRW 00.

5) On October 25, 2007, the Defendant Union held a general meeting for administration and disposal and disposal, and passed a resolution with the consent of 482 members among the 874 union members (483 members who make a written resolution + 249 members who attended a general meeting) of 482 members, among the 874 union members, to approve the conclusion of the contract for the construction work on September 27, 2007 between the ○○ Construction. The Defendant Union passed a resolution with the consent of 482 members, among the 874 union members (the 483 members who participated in a written resolution + 249 members who participated in a general meeting). Based on the 3,965,00 won in pure construction cost per square year in the construction of the said new construction contract, 226,809, 455, and 00 won in total, on the basis of 874 members.

6) The Defendant Union filed an application for authorization of the management and disposal plan with respect to the head of ○○○○, Seoul Special Metropolitan City. After supplementing the eligibility of some buyers, the Defendant Union held a general meeting of the management and disposal plan on March 12, 2008, and obtained authorization of the management and disposal plan from the head of ○○, Seoul Special Metropolitan City on June 5, 2008.

The facts that there is no dispute over the basis of recognition, evidence A 1 to 8, evidence B 1 to 5, and the purport of the whole pleadings.

Article 20(3) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7392 of March 18, 2005 and amended by Act No. 9444 of February 6, 2009; hereinafter the same shall apply) provides that the contents to be included in the contractor’s contract shall be included in the articles of incorporation considering that it has a significant impact on the partner’s share of expenses, etc. (Article 20(1)15). Article 20(3) of the former Act provides that the consent of at least 2/3 of the cooperative members shall be required to change the matters to be stated in the articles of incorporation (Article 20(3) of the Act). Where a resolution is made by presenting to the general meeting the items to be included in the original agreement of the cooperative members on the establishment of the association, the provisions of Article 20(1)30(3) of the former Act should apply mutatis mutandis to the amendment of the articles of incorporation.

In this case, at the self-management and disposal assembly on October 25, 2007, the resolution of the defendant union increased the estimated cost of removal of buildings and construction under the original consent of this case from 146, 345, 00, 000 to 226, 809, 45, and 00 won as an agenda item to substantially alter the cost-bearing under the consent of this case. Even if it is not an amendment procedure, it is necessary to apply mutatis mutandis the provisions of Article 20(3) and 20(1)15 of the former Act to give consent of 2/3 or more of the union members, and at the self-management and disposal assembly on October 25, 2007, the resolution of the defendant union on October 25, 2007, the majority opinion of the union members of this case did not meet the plaintiffs' resolution of 494,000 members who did not meet the premise of the above agenda item, and thus, it is unlawful.

3. Conclusion

If so, the plaintiffs' claims are accepted.