[1] Whether a disposition imposing liquidation money by a redevelopment association whose method of calculating liquidation money has been wrong is invalid (negative)

[2] The case holding that where a revocation judgment on the first management and disposition plan concerning the calculation of the amount of liquidation collected by the redevelopment partnership becomes final and conclusive, the res judicata effect shall be determined to the extent that the second management and disposition plan, which was approved after calculating the new amount of liquidation collected and approved

[1] In order for a disposition to become null and void due to a defect in an administrative disposition, the defect is required to be significant and apparent. Thus, where a disposition to impose liquidation money of the redevelopment association is rendered by mistake, such as a disposition to impose liquidation money on a person who is not subject to imposition or is not liable for payment, even though there is a defect in the violation of the Acts and subordinate statutes, the defect may be deemed to be significant and obvious, but where the method of calculating liquidation money is erroneous, it shall not be deemed that the defect is significant

[2] Where a judgment revoking the first management and disposition plan regarding the calculation of the amount of liquidation money collected by the redevelopment partnership becomes final and conclusive, the res judicata does not extend to the validity of the second management and disposition plan, which calculated the amount of liquidation money to be collected by different proportion rates for the value of the previous rights thereafter, but where a separate cancellation of the decision on the value of the previous rights of a specific union member, which serves as the basis for calculating liquidation money, in the first management and disposition plan, has the res judicata effect in this part, and thus, the calculation of the amount of liquidation money collected by the relevant union member based on the value of the previous rights revoked

[1] Article 42 of the former Urban Redevelopment Act (repealed by Article 2 of the Addenda to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Act No. 6852 of December 30, 2002), Article 1 of the Administrative Litigation Act [general administrative disposition] and Article 19 of the same Act / [2] Article 216 (1) of the Civil Procedure Act, Article 42 of the former Urban Redevelopment Act (repealed by Article 2 of the Addenda to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Act No. 6852 of December 30, 2002]

[1] Supreme Court en banc Decision 94Nu13626 delivered on June 13, 1995 (Gong1995Ha, 2286)

Hanjin Industries Co., Ltd. (Law Firm Gyeong & Yang, Attorneys Jeon Young-young et al., Counsel for the plaintiff-appellant)

Defendant 1 and 3 others (Attorney Im Jong-soo et al., Counsel for the defendant-appellee)

Defendant 5 and one other (Attorney Im Jong-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2005Na4668, 4675 decided April 26, 2006

The part of the lower judgment against Defendant 6 is reversed, and that part of the case is remanded to the Seoul High Court. All appeals by the remainder of the Defendant (including the Plaintiff) are dismissed. The costs of the remaining Defendant (including the Plaintiff) are assessed against the same Defendant (including the Plaintiff).

The grounds of appeal are examined.

The objective scope of res judicata is included in the text of the judgment, i.e., the conclusion of the judgment on the existence of legal relations asserted as a subject matter of lawsuit, and does not affect the existence of legal relations alleged as a premise in the reasoning of the judgment (see, e.g., Supreme Court Decisions 86Meu2756, Jun. 9, 1987; 2004Da36130, Jul. 13, 2006).

On the other hand, in order to invalidate a disposition due to a defect in an administrative disposition, it is required that the defect is significant and obvious. Thus, even if there is a defect in violation of the Acts and subordinate statutes in the disposition to impose the liquidation amount of the redevelopment association, where a disposition to impose the liquidation amount of the redevelopment association should not be imposed like the disposition to impose it on a person who is not subject to imposition or is not liable for payment, and where a disposition to impose it erroneously is made, such defect may be deemed to be significant and obvious, but where the method of calculating the liquidation amount is not simply erroneous, such defect shall not be deemed to be significant and obvious (see Supreme Court en banc Decision 94Nu13

In full view of the relevant admitted evidence, the court below also decided that, among the first management and disposal plan of this case adopted on September 24, 1998 by Nonparty 1, Zone 1, Zone 2, Housing Improvement Redevelopment Redevelopment Cooperatives (hereinafter “Non-Party 2”) decided on September 24, 1998, the court below decided to revoke the part that determined the amount to be collected by applying the proportional ratio of 40% to the value of previous rights to the Defendant Counterclaim (including the non-party Lessee; hereinafter “Defendant”) who is a partner of the association, was sentenced on October 6, 1999, and the decision became final and conclusive as it is. However, on the same day as the above resolution, the non-party 2 was able to revise the management and disposal plan by raising the proportional ratio to 5.4% where the sales revenue of the general apartment unit can be increased due to the autonomousization and applied the proportional ratio to the above part that was determined by applying the proportional ratio of 5.4% to the above part of the management and disposal plan to the Defendants, including the Defendants.

In light of the above legal principles and records, the above judgment of the court below is just, and even if the substantial issue in the above judgment was "the illegality of the act of calculating the liquidation amount by applying the proportional ratio to the value of the previous right" rather than the specific proportional ratio, such circumstance alone alone does not make it difficult to say that the res judicata of the above final judgment extends to the judgment on the validity of the second management and disposal plan approved by the purport of calculating the new collection amount of liquidation amount by changing the proportion ratio thereafter, and the part of calculating the collection amount of liquidation amount under the revised management and disposal plan cannot be deemed null and void due to serious and obvious defects. The argument in the grounds of appeal No. 1 that raised

However, there is no doubt about the fact that it is included in the text of a final and conclusive judgment has res judicata (Article 216 of the Civil Procedure Act) and therefore, the court cannot make any decision inconsistent with this, and the court below's decision that the part against Defendant 6 in the disposition imposing a new settlement money by the non-party union is also effective for the same reason is not against the res judicata effect of the final and conclusive judgment in the following respect:

Examining the details of the previous litigation and the final and conclusive judgment in detail as indicated in the record, the first instance court rendered a decision that “The part of the management and disposition plan resolved on September 24, 1998 by the Defendant (referring to the non-party association of this case) regarding the amount of liquidation money collected against the Plaintiffs (a part of the judgment of this case is revoked as indicated in the item column for collection of liquidation money in attached Table 2.” However, in the appellate court’s decision, in addition to dismissing the Defendant’s appeal, the part of the management and disposition plan resolved on September 24, 1998, which determined the value of the Plaintiff ○○○○ (referring to the Defendant 6)’s previous right in the management and disposition plan decided on September 24, 1998, the part of the decision on the value of the previous right of the Defendant 6’s previous right was separately revoked, and each of the above judgment orders became final and conclusive as it is due to the dismissal of the appeal by the non-party association.”

However, according to the court below's duly admitted, the method of calculating the amount of liquidation under the first management and disposal plan of the non-party union's first-class association's "value of the previous right" by applying 40% to "the value of the previous land and buildings" (the value of the previous land and buildings) and then deducting it from the "value of the right to sell lots" (the value of the land and constructed facilities sold in actual form). However, in the second management and disposal plan revised later, the previous amount of the value of the right to purchase and the value of the right to purchase has been adjusted to 5.4% in proportion while maintaining the previous portion of the determination of the value of the right to purchase and the value of the previous right to purchase, and if the facts are found, it is reasonable to view that the amount of liquidation collected newly calculated after the amendment of the management and disposal plan to raise the proportion only is based on the value of the previous right determined in the first management and disposal plan. As seen earlier, the previous portion of the value of the previous right has already been revoked, so it cannot be determined as valid

Nevertheless, the court below determined the amount of the obligation to be paid to the plaintiff by Defendant 6 on the premise that the calculation of the amount of liquidation of the non-party union based on the decision of the value of the previous right that was already revoked by the final judgment is valid. In this regard, the court below erred by misapprehending the legal principles on res judicata of the final judgment, which affected the conclusion of the judgment. The ground of appeal No. 2

Therefore, the part of the lower judgment against Defendant 6 is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remaining Defendants’ appeals are all 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 on the bench.

Justices Kim Hwang-sik (Presiding Justice)