[1] The purport that the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents requires the consent of the owners of a plot of land, etc. to establish a redevelopment association, and require the submission of such consent

[2] The case holding that the court below erred in the misapprehension of legal principles in a case where Gap's promotion committee established Gap's housing redevelopment project association's promotion committee submitted a written consent for establishing a new building's association, which became an official space, and applied for authorization to establish an association in the official space by exercising delegated supplementary rights, and the competent authority applied for authorization to establish an association

[1] The purport of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9401 of Jan. 30, 2009) is to prevent disputes between related persons who may arise as to whether they agree by clarifying consent from the owners of a plot of land, etc. and submitting a written consent to the competent administrative agency when applying for authorization to establish a redevelopment partnership is to prevent unnecessary administrative power to confirm whether they agree, by preventing disputes between the persons who may arise as to whether they agree by clarifying consent from the owners of a plot of land, etc., and further by allowing an administrative agency to examine whether they meet the consent requirements only by the written consent submitted at

[2] The case holding that in case where Gap's promotion committee established a housing redevelopment project association's "a summary of new building" and "a rough estimate of expenses for removal of buildings and new construction" among owners of lands, etc., submitted a written consent for the establishment of the association in the public column with the phrase "a joint statement of the establishment of the association at the end of the public space" and the phrase "a joint statement of the establishment of the association at the end of the public space, and then applied for the establishment of the association, along with the contents resolved at the general meeting of the association, and the competent authority made an application for the establishment of the association, and the competent authority made a disposition for the establishment of the association, the court below's decision that did not necessarily require the owners of lands, etc. to give consent to the establishment of the housing redevelopment project's association for implementation of the housing redevelopment project's housing redevelopment project's project's implementation, and that Gap's promotion committee did not arbitrarily supplement the above written consent, but did not err in the misapprehension of legal principles against Gap's owner of lands, etc.'s own consent to the above resolution.

[1] Article 16 (1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9401 of Jan. 30, 2009) / [2] Article 16 (1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9401 of Jan. 30, 2009), Article 26 (1) 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. 21171 of Dec. 17, 2008) (refer to the current

[1] Supreme Court Decision 2009Du4845 decided Jan. 28, 2010 (Gong2010Sang, 434)

Plaintiff

The Intervenor joining the Plaintiff

Head of Nam-gu Busan Metropolitan City

Zone Two Housing Redevelopment and Improvement Project Association (Attorney Park Young-soo et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2009Nu6742 decided June 25, 2010

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the following facts are stated: ① the committee of promoters for the establishment of the Housing Redevelopment Project Group 2 (hereinafter “instant committee”) submitted from the owners of land, etc. within the Housing Redevelopment Project Zone 2 (hereinafter “this case’s written consent”), the matters to bear the burden of expenses, and the matters to vest in sectional ownership of the sectional ownership of the new building, but all the matters concerning “a summary of the design of the new building” and “a estimated cost for removal or new construction of the new building” were public spaces. ② Under the above public space, the said written consent states that “I agree that I will not collect separate written consent for alteration within 10% following the alteration of the project plan,” and the written consent of 200 square meters of the newly constructed building, 30 square meters of the total floor area of the new building, 47 square meters of the new building, 30 square meters of the land, etc., 50 square meters of the total floor area of the new building, 30 or 57 square meters of the new building,” at the end of the instant consent.

2. Based on its stated reasoning, the lower court determined to the effect that the instant disposition, even though the Defendant knew of the ex post supplement of the written consent attached to the instant application for approving the establishment of a partnership, deeming the consent to be lawful, was a significant and apparent defect in the said disposition, after receiving the instant written consent from the owners of land, etc., which was the most essential part of the housing redevelopment improvement project and was the most important part of the housing redevelopment improvement project, and the estimated amount of the cost of removing the new building and the cost of removing the new building, which was an official disturbance, and by exercising the right to supplement delegated by the owners of land, etc., thereby supplementing the relevant

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. The purport of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9401, Jan. 30, 2009) is to prevent disputes between related persons who may arise as to whether to consent by clarifying consent from the owners of a plot of land, etc. and submitting a written consent form to the competent administrative agency when applying for authorization to establish a redevelopment partnership is to prevent the occurrence of unnecessary administrative power to confirm the consent form, by preventing disputes between the persons who may arise as to whether to consent by clarifying consent from the owners of a plot of land, etc. and further by allowing an administrative agency to examine whether the consent form was met only by the consent form submitted at the time of applying for authorization to establish a redevelopment partnership (see, e.g., Supreme Court Decision 2009Du4845

B. The written consent of this case was originally written as to the "a summary of the design of a new building" and "a rough estimate of the cost of removal of a building and new construction" under Article 26 (1) 1 and 2 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. 21171, Dec. 17, 2008; hereinafter the "Decree"), but the written consent of this case was written as to the public space. However, the written consent of this case was written as to the consent of the general meeting of the establishment of the association at the end of the written consent of this case and the written consent of this case to the public space as to the matters decided at the inaugural general meeting of this case. Accordingly, the written consent of this case is completed by including all necessary matters to be entered in the written consent under Article 26 (1) 1 and 2 of the Decree in the public space.

However, the old Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9401 of Jan. 30, 2009; hereinafter “Act”) and the Enforcement Decree of the Housing Redevelopment Improvement Project does not require the owner of land, etc. to consent to the establishment of the Housing Redevelopment Project for the implementation of the Housing Redevelopment Project. The Promotion Committee of this case does not supplement arbitrarily the public consent of the consent of the owners of land, etc., but supplement the resolution of the inaugural meeting that reflects the majority opinions of the owners of land, etc. with the consent of each owner of land, etc..., and the owners of land, etc. may prevent the completion of the consent of this case by expressing their intent to withdraw the consent of this case against the Promotion Committee where the resolution of this case goes against their will. Nevertheless, it is evident that the owners of land, etc., who were allowed to submit the consent of this case to the defendant after completing the consent of this case, can be deemed to have expressed their intent to continue the establishment of the consent of this case.

Nevertheless, the lower court erred by misapprehending the legal principles as to the defect of administrative disposition or its importance and clarity, and thereby adversely affecting the conclusion of the judgment, solely on the grounds stated in its reasoning. The allegation in the grounds of appeal by the Defendant and the Intervenor joining the Defendant assigning this error is with merit.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal by the Intervenor joining the Defendant, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Selections: Omitted

Justices Ko Young-han (Presiding Justice)