[1] Whether there is a legal interest to seek revocation or nullification confirmation of a disposition of management and disposal plan after the relocation announcement under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents takes effect (negative)

[2] The purport of Article 24 (3) 10 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, etc. that requires a resolution of the association general meeting and an administrative agency's approval procedure

[3] Whether the phrase “a modification of minor matters as prescribed by the Presidential Decree” under the proviso of Article 48(1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents is limited to the matters under each subparagraph of Article 49 of the Enforcement Decree of the former Act

[4] The case holding that the court below erred in the misapprehension of legal principles as to the interpretation of "a modification of minor matters as prescribed by Presidential Decree" under the proviso of Article 48 (1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, in case where Gap Housing Redevelopment Cooperatives held a general meeting of association members and resolved to determine co-ownership right holders of multi-family houses in the project district as the subject of liquidation, and subsequently partly revised the management and disposal plan to sell the apartment house to co-owned share holders (the first management and disposal plan) and reported it to the head of the competent Gu (the second management and disposal plan)

[1] It is against the public interest and organization law of the rearrangement project to invalidate all the ownership relationship already treated uniformly and uniformly with the majority of the members, and to establish a management and disposal plan from the beginning and to follow the procedures for the transfer announcement. Thus, it is reasonable to deem that there is no legal interest in seeking revocation or invalidity confirmation of the management and disposal plan after the transfer announcement takes effect. The same applies to cases where seeking revocation or invalidity confirmation of the approval disposition of the management and disposal plan after the transfer announcement takes effect.

[2] The purport of the resolution of the association general meeting and the procedure for granting authorization from the administrative agency to establish or amend a management and disposal plan is that the establishment or modification of a management and disposal plan constitutes an administrative disposition that determines the reversion of rights, such as the transfer of ownership, and the apportionment of expenses to the association members and the persons subject to cash settlement (hereinafter “members, etc.”), and accordingly, the intent of the association members, etc., who will be affected by the rights and obligations and legal status should be sufficiently reflected. On the other hand, where a minor matter of a management and disposal plan is modified, it is sufficient to report it

[3] In light of the contents, form, and purport of the provisions related to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444 of Feb. 6, 2009; hereinafter “Urban Improvement Act”), it is reasonable to view that the term “a modification of minor matters as prescribed by the Presidential Decree” under the proviso of Article 48(1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by the Presidential Decree No. 21285 of Jan. 30, 2009) is not limited to the matters stipulated in each subparagraph of Article 49 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by the Presidential Decree No. 21285 of Jan. 30, 2009), even if the contents of the management and disposal plan subject to the modification are objectively and individually examined, it does not infringe upon the rights and duties or legal status of the association members, or it is possible to decide differently

[4] The case holding that the court below erred by misapprehending the legal principles on the interpretation of the proviso of Article 48 (1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444 of Feb. 6, 2009) where Gap's Housing Redevelopment Cooperatives held a general meeting of partners to determine co-ownership right holders of multi-family houses in the project district as being subject to liquidation, and subsequently partly amends the management and disposal plan to sell the litigation facilities prepared in advance to co-owned share holders (the second management and disposal plan), and reported it to the head of the competent Gu (the second management and disposal plan)

[1] Articles 48 (1) and 54 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444 of Feb. 6, 2009) / [2] Articles 24 (3) 10, 48 (1), and 49 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444 of Feb. 6, 2009) / [3] Article 48 (1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444 of Feb. 6, 2009), Article 49 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. 21285 of Jan. 30, 209) / [4] Article 48 (1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended Act)

[1] Supreme Court en banc Decision 2011Du6400 Decided March 22, 2012 (Gong2012Sang, 682)

Plaintiff 1 and two others (Attorney Jeong-hee, Counsel for the plaintiff-appellant)

Gold and 11 District Housing Redevelopment Association (Law Firm mountainous District, Attorneys Lee Lee-Gyeong et al., Counsel for the plaintiff-appellant)

The head of Seongdong-gu Seoul Metropolitan Government (Law Firm Min & Kim, Attorneys Kim Yong-ju, Counsel for defendant-appellant)

Seoul High Court Decision 2009Nu5871 decided November 4, 2009

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

The grounds of appeal are examined together (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The plaintiffs' grounds of appeal and the first ground of appeal by the defendant association

The validity of a transfer announcement is to invalidate all the rights vested in a uniform and uniform manner for the majority of the members, etc., and to establish a management and disposal plan from the beginning to undergo the procedures for the transfer announcement is contrary to the public interest and organization legal nature of the rearrangement project. Therefore, it is reasonable to deem that there is no legal interest in seeking revocation or invalidity confirmation of the management and disposal plan after the relocation announcement became effective (see Supreme Court en banc Decision 2011Du6400, Mar. 22, 2012). The same applies to cases where seeking revocation or invalidity confirmation of the authorization of the management and disposal plan.

According to the reasoning of the lower judgment, the lower court rejected the Plaintiffs’ assertion that the instant authorization disposition is null and void as indicated in its reasoning after compiling the adopted evidence, on the ground that it is difficult to deem that there is a serious and apparent defect in the instant authorization disposition itself even if the instant authorization disposition differs from the first management disposition plan resolved by the general assembly of cooperatives. In addition, regarding the Plaintiffs’ assertion seeking revocation of the second management disposition plan, the second management disposition plan revoked the second management disposition plan on the ground that the relationship with the first management disposition plan does not constitute an alteration of minor matters provided for in each subparagraph of Article 49 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. 21285, Jan. 30, 2009; hereinafter “Enforcement Decree of the Urban Improvement Act”). Thus, the second management disposition plan was revoked on the ground that it was unlawful without going through the resolution of the

However, according to the reasoning of the judgment below, the defendant union announced the transfer of the housing redevelopment project of this case on March 25, 2008. In light of the above legal principles, the plaintiffs have no legal interest in seeking confirmation of invalidity of the approval disposition of this case and revocation of the second management and disposal plan of this case as long as the transfer notification of this case became effective.

Nevertheless, the court below, on a different premise, tried to make a decision on the confirmation of invalidity of the authorization disposition of this case and the cancellation of the second management and disposition plan of this case. In so doing, the court below erred by misapprehending the legal principles on legal interests after the transfer notice becomes effective, thereby adversely affecting the conclusion of the judgment.

2. As to the remaining grounds of appeal by Defendant Union

A. As to the second ground for appeal

According to the provisions of Articles 24(3)10, 48(1) and 49 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 944 of Feb. 6, 2009; hereinafter the “Urban Improvement Act”), when the period for application for parcelling-out expires, a project implementer shall establish a management and disposal plan based on the current status of application for parcelling-out and make a resolution by the general meeting of cooperatives with the consent of a majority of the total number of members, and obtain authorization from the head of the Si/Gun through the procedures for public inspection and hearing of opinions, and shall also apply where he/she intends to modify a management and disposal plan: Provided, That the proviso to Article 48(1) of the Urban Improvement Act stipulates that a modification of a management and disposal plan may be made by simply reporting to the head of the Si/Gun without going through the resolution of the general meeting of cooperatives and the procedures for authorization of the head of the Si/Gun, and Article 49 of the Enforcement Decree of the Urban Improvement Act provides for modifications to the management plan under Article 3(2).

As can be seen, the purport of requiring the resolution of the association general meeting and the procedures for granting authorization from the administrative agency to establish or revise a management and disposal plan is that the establishment or modification of a management and disposal plan constitutes an administrative disposition to determine the reversion of rights, such as the transfer of ownership, and the cost-bearing with respect to the union members and persons subject to cash settlement (hereinafter “members, etc.”), and accordingly, the intent of union members, etc., who will be adversely affected by their rights and obligations and legal status should be sufficiently reflected. On the other hand, where a minor matter of a management and disposal plan is modified, it is sufficient to

In light of the above provisions, form, and purport of Article 48(1) proviso of the Act on the Improvement of Urban Areas and Dwelling Conditions, the term “a modification of minor matters prescribed by Presidential Decree” is not limited to the matters provided for in each subparagraph of Article 49 of the Enforcement Decree of the Act on the Improvement of Urban Areas and Dwelling Conditions, but it is reasonable to view that the modification details are sufficiently consistent with the intent of the association members and other interested parties, such as union members, without going through a resolution of the union general meeting on a specific and individual basis, and even if they are subject to a resolution of the union general meeting, it does not infringe upon the rights and duties or legal status of union members, or if they are subject to a resolution of the union general

According to the reasoning of the judgment below, after compiling the adopted evidence, the court below acknowledged the facts as stated in its decision, and determined that since the transfer notice constitutes an administrative disposition that transfers ownership of the site, building, etc. created by the rearrangement project to the purchaser of the ownership pursuant to the management and disposal plan after the completion of the project implementation, the transfer notice should be revoked or null and void in its entirety if the management and disposal plan is null and void. However, even though the second management and disposal plan does not constitute "a modification to any minor matter prescribed by Presidential Decree" under the proviso of Article 48 (1) of the Urban Improvement Act, it does not constitute "a modification to any minor matter" under the proviso of Article 48 (1) of the Act, the defendant union did not go through the resolution of the association general meeting and the approval and public notice procedure of the administrative agency, and its defect constitutes a serious and clear and void cause, the part corresponding to the second management and disposal plan at least

However, according to the reasoning of the judgment below and the record, the defendant union prepared a second management and disposition plan to modify some of the 78 households designated as a litigation withholding facility under the first management and disposition plan and reported to the head of Sungdong-gu Seoul Special Metropolitan City, which made it possible for the co-ownership right holder who became the original subject of liquidation and became entitled to purchase the apartment of this case independently through the conciliation procedure or the judgment procedure, to sell them to 74 households among the 78 households designated as a litigation withholding facility under the first management and disposition plan. Therefore, it is highly likely that the modification of the above management and disposition plan is objectively consistent with the intention of the interested parties, such as union members, and even if it

Nevertheless, the court below, based on its reasoning, revoked the transfer announcement of this case on the ground that it was illegal, and thus, it did not err in the misapprehension of legal principles as to the interpretation of "a modification of minor matters prescribed by Presidential Decree" under the proviso of Article 48 (1) of the Act on the Maintenance of Urban Areas and Dwelling Conditions, which affected the conclusion of the judgment.

B. Ground of appeal No. 3

The grounds of appeal on this part of the Defendant Union’s ground of appeal on the ground that the revocation of the management disposition plan and the transfer announcement of this case on the ground that some defects were not found in the situation where the allocation of apartment houses was completed with respect to 885 households among the 888 households, in accordance with the transfer announcement of this case, meets the requirements for judgment on circumstances, such as that the revocation of the transfer announcement of this case violates public welfare and does not affect the rights and interests of the Plaintiffs. However, as seen earlier, the ground of appeal on the premise that the transfer announcement of this case was revoked illegally, should not be further determined.

3. Conclusion

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)