A. The meaning of “same-class case” under Article 18(3)1 of the Administrative Litigation Act

B. Whether a court can ex officio render a ruling on assessment in an administrative litigation

(c)the partner qualification requirements of the workplace or regional housing associations;

D. Whether the rejection disposition against an application for completion inspection is appropriate without obtaining approval for modification of the business plan under Article 33 (1) of the former Housing Construction Promotion Act (amended by Act No. 4530 of Dec. 8, 1992) with respect to an unqualified member

A. The case in question includes not only the case in question but also the case in question where homogeneity is recognized in the basic point of view with respect to the case in question. The case in question constitutes a case in which another person filed an administrative appeal with respect to the case in question and a rejection ruling on the other case in question is rendered, even though it is not the case in question, there is a rejection ruling on the other case in which homogeneity is recognized in basic point of view with respect to the case in question.

B. In an administrative litigation, in a case where the court deems it necessary to render a judgment on the circumstances prescribed in Article 28 of the Administrative Litigation Act, the court may render ex officio a ruling on the basis of the facts recorded in a case record even in the absence of clear allegations

C. In a case of a house constructed and supplied by a housing association to its members, in principle, since Article 7 of the Rules on the Housing Supply in the Public Notice Date cannot be determined because the provision of Article 7 of the above Rules cannot be applied to the public announcement date, the eligibility to become a member of a workplace association cannot be limited to a person who is homeless within one year before the member becomes a member of a workplace association, but if the person eligible to become a member of a workplace association is limited to him, the eligibility of a member should be determined as prescribed by the rules of the workplace association, and Article 3 subparagraph 9 of the former Housing Construction Promotion Act (amended by Act No. 4530 of Dec. 8, 1992) is a district association or workplace association established by a resident or employee without a house to acquire a house in defining the housing association. Thus, even if a member of a district association or workplace association does not need to become a non-resident before the member of the association becomes a member of the association (in principle, at the time of establishment authorization).

D. In light of Article 33-2(1) of the same Act and Article 34(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13655 of May 30, 1992), a project that conforms to the approved project plan shall be implemented to undergo a completion inspection for a building after the completion of a housing construction project, and if there are circumstances that the approved project plan should be approved for modification, an application for completion inspection of a building due to the project shall not be accepted unless approval for modification is obtained. Thus, if a member of the housing association is disqualified, the approval for modification of the project plan shall be obtained, and if the approval is not obtained, an application for completion inspection of a building due to the project shall not be accepted.

A. Article 18(3)1(b) of the Administrative Litigation Act (amended by Act No. 4530 of Dec. 8, 1992); Article 3 subparag. 9 of the former Housing Construction Promotion Act (amended by Act No. 4530 of Dec. 8, 1992); Article 4(1)4 of the former Rules on Housing Supply; Articles 33(1) and (4)8, and 33-2(1) of the former Housing Construction Promotion Act; Articles 32(2)3 and 34(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 1365 of May 30, 192)

A. Supreme Court Decision 92Nu4383 delivered on September 8, 1992 (Gong1992, 2914) 92Nu1322 delivered on September 22, 1992 (Gong1992, 3015) 92Nu8972 delivered on November 24, 1992 (Gong1993, 276) B. 91Nu2854 delivered on November 8, 1992 (Gong192, 130), 90Nu9032 delivered on February 14, 1992 (Gong192, 1040), 93Do267 delivered on May 14, 1993 (Gong193, 1761)

1. The plaintiff-appellant and the plaintiff-appellant 8, et al., Counsel for the defendant-appellant-appellant

Attorney Kim Chang-chul, Counsel for the defendant-appellant

Seoul High Court Decision 92Gu24150 delivered on March 9, 1993

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

The defendant's attorney's grounds of appeal are examined.

(1) On the first ground for appeal

Article 18 (3) 1 of the Administrative Litigation Act includes not only the case in question, but also the case in which homogeneity is recognized in the basic point of view with the case in question. Thus, the case in question falls under the case in which another person filed an administrative appeal with respect to the case in question and a rejection ruling of an administrative appeal with respect to other cases that can recognize homogeneity in the basic point of view with respect to the case in question, even though there was no rejection ruling or the case in question itself. According to the records, it is clear that a disposition which is the subject of an administrative appeal requested by the plaintiff Pung-dong Hyundai Apartment Apartment Workplace Employment Association is the same disposition with respect to the remaining plaintiffs. Thus, as long as an opportunity to reconsider the basic facts and legal issues is given to the ruling authority, it is not necessary for the remaining plaintiffs to go through the previous trial procedure. The decision of the court below to the same purport is correct and there is no illegality as pointed out by the theory of the lawsuit. Moreover, it is not justified to conclude that all the plaintiffs of this case together with the defendant's claim for the cancellation of each disposition

(2) On the sixth ground for appeal

In the administrative litigation, when the court deems it necessary to render a judgment on the circumstances stipulated in Article 28 of the Administrative Litigation Act, the court may render ex officio a judgment on the basis of the facts recorded in the case records even in the absence of clear allegations by the parties (see Supreme Court Decision 90Nu9032, Feb. 14, 1992). However, according to the records of this case, it is clear that the court below should have rendered a judgment on the circumstances only when the defendant asserted a new fact in the appellate court, and that there was no implied assertion in the court below, and there is no evidence that the revocation of the disposition of this case is obviously inappropriate for public welfare (see Supreme Court Decision 91Nu2854, Nov. 8, 191). Thus, this part of this case cannot be accepted.

(3) On the second and third grounds for appeal

The Housing Construction Promotion Act (amended by Act No. 4530, Dec. 8, 1992; hereinafter referred to as the "Act") or the Enforcement Decree of the same Act (amended by Presidential Decree No. 1365, May 30, 1992; hereinafter referred to as the "Enforcement Rule") or the Enforcement Rule of the same Act limits the eligibility to become a member of a workplace association to be homeless within one year before it becomes a member of the association. However, the proviso of Article 4 (1) of the Rules on Housing Supply promulgated by the Ordinance of the Ministry of Construction and Transportation based on Article 32 (1) of the Act provides that the housing should be supplied to the members of the association with no houses from 1 year prior to the date of public announcement of invitation of the members of the association (including the housing supplied to the members of the association), but the housing association cannot be defined as a non-permanent member of the association or its non-permanent member of the association within 3 years prior to the date of public announcement of the invitation of members of the association.

According to the reasoning of the judgment below, the court below determined that the defendant's rejection of the application for change of the project plan of this case and rejection of the application for completion inspection are all unlawful on the ground that it is reasonable to view that the association members could not be excluded from the eligibility for occupancy on the ground that he did not dispose of the housing held one year prior to the date of the establishment authorization of the housing association

However, according to the records, since the rules of the Plaintiff Korea Telecommunication Work Support Group, Pungdong and workplace housing association of the Seoul Office, the Bank of Korea employees housing association, the Korea Housing Bank employees housing association of the Korea Housing Bank, and the Korea Housing Bank and Commercial Bank limited the qualification of its members to those who have no houses within one year before they become its members, the determination of such rules should be followed in terms of the qualification of its members. In addition, in the case of the Plaintiff Union which did not have any provision on qualification restriction under the rules, it should not be determined whether there was a qualification of its members depending on whether they were no houses within one year before they become its members, even if they should not be determined whether they were no houses even as of the time they become its members, and whether they were no houses even if they were at the time of their becoming its members.

The lower court, solely on the grounds stated in its reasoning, determined that all 98 members of the housing association pointed out by the Defendant were qualified as a cooperative member. The lower court did not err by misapprehending the legal doctrine on the qualification of a cooperative member or failing to conduct a hearing properly, thereby adversely affecting the conclusion of the judgment. The grounds for appeal are with merit within the scope of pointing this out.

(4) On the fourth ground for appeal

According to Article 33(1) of the Act and Article 32(2)3 of the Enforcement Decree of the same Act, when applying for a construction permit under the Building Act at the time of applying for the approval of a housing construction project plan, submission of the documents to be submitted. According to Article 33(4)8 of the Act, when approval of the project plan is obtained, construction permission shall be deemed granted for a building. Article 33-2(1) of the Act provides that a building among the housing construction projects implemented after obtaining approval of the project plan shall undergo a completion inspection under the Building Act upon completion of the project. Article 34(1) of the Enforcement Decree of the same Act provides that a person who conducts a completion inspection under the Building Act shall confirm whether the contents of the project plan approved under the provisions of Article 33(1) of the Act are in conformity with the contents of the project plan approved under the provisions of Article 33(1) of the same Act. Thus, an application for completion inspection for a building shall not be accepted.

However, according to the reasoning of the judgment below, the court below held that the disposition of the defendant's refusal to file an application for the completion inspection of this case is unlawful as to the decision on the qualification of union members, and that the building constructed to refuse the completion inspection should be inspected whether it conforms to the plane, structure, safety, etc. as provided in the Building Act, and the method of supplying the house can not be the object of the inspection. In addition, if a member of the plaintiffs' association is disqualified, it shall be arranged to obtain the approval of the business plan, and if the approval is not obtained, the application for the completion inspection of the building due to the business shall not be accepted. Thus, the judgment of the court below is erroneous in the misapprehension of legal principles as to the completion inspection as provided in the Act. This point is with merit.

(5) Therefore, without examining the remaining grounds of appeal, we reverse the judgment of the court below and remand the case 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 Choi Jae-ho (Presiding Justice)