[1] In a case where the head of a Si/Gun who has received an application for approval to establish an association for housing redevelopment improvement project gives consent of at least 1/2 of the owners of the land, etc. as to the composition of the committee and the committee is comprised of at least five members including the chairperson, through the documents attached to the application for approval for establishment of the committee, whether the establishment of the committee should be approved (affirmative)

[2] In a case where the approval for establishment of a housing redevelopment project is applied to the owner of the land, etc. in the anticipated project area after the public announcement of the urban renewal acceleration plan, including the written consent received from the owner of the land, etc. in the project area determined after the public announcement of the plan, on the ground that at least 1/2 of the owners of the land, etc. in the project area are attached to the written consent, the case holding that the approval for establishment was unlawful, but the defect is not obvious to the extent that it becomes invalid as a matter of course

[1] According to Article 13(2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8852 of Feb. 29, 2008), where a cooperative comprised of landowners, etc. is to be established to implement a rearrangement project, the person who intends to obtain approval for establishment of the promotion committee shall form five or more members, including the chairperson, with the consent of at least 1/2 of the landowners, and obtain approval from the head of Si/Gun. According to each subparagraph of Article 6 of the former Enforcement Rule of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Ordinance No. 4 of the Ministry of Construction and Transportation of March 14, 2008), a person who intends to obtain approval for establishment of the promotion committee shall submit a list of landowners, such as land, consent form or consent period of landowners, chairperson and members, and documents evidencing the selection of members, etc. to the extent that consent of the promotion committee can not be found to have been obtained later by the promotion committee's committee's committee's approval for establishment.

[2] In a case where the approval for establishment of a housing redevelopment project is applied to the owner of the land, etc. in the anticipated project zone after the public announcement of the urban renewal acceleration plan, including a written consent that was made before the public announcement of the plan, on the ground that at least 1/2 of the owners of the land, etc. in the project zone were attached to the written consent, the court held that in light of all the circumstances, it is erroneous in the determination as to whether more than 1/2 of the owners of the land, etc., including the land, etc., the approval conditions for establishment, which were approved before the public announcement of the plan, were valid since the committee's consent cannot be seen as identical to the anticipated project zone and the confirmed project zone cannot be seen as the establishment of the promotion committee, but at the same time, the approval for establishment cannot be deemed as invalid because the legal principle on the period of consent or invalidation of the relation to the project zone was not clearly stated at the time.

[1] Articles 13(2) and (3) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8852 of Feb. 29, 2008) and 23 of the same Act, Article 6 of the former Enforcement Rule of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Ordinance No. 4 of the Ministry of Construction and Transportation of March 14, 2008) / [2] Articles 13(2) and (3) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8852 of Feb. 29, 2008), Article 6 of the former Enforcement Rule of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8852 of Mar. 14, 2008), Article 1 of the Administrative Litigation Act / [general administrative disposition] Articles 19 and 1 of the Administrative Litigation Act

[1] Supreme Court Decision 2007Du12996 Decided July 24, 2008, Supreme Court Decision 2008Du13132 Decided June 25, 2009

Plaintiff 1 and nine others (Attorney Park Sung-hoon, Counsel for the plaintiff-appellant)

The head of Dongdaemun-gu Seoul Metropolitan Government (Law Firm Squa, Attorneys Song Heung and three others, Counsel for the plaintiff-appellant)

2. The establishment promotion committee of the Housing Redevelopment and Improvement Project Association (Law Firm Squa, Attorneys Song-sop et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Nu18378 decided December 16, 2010

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. As to the grounds of appeal on the validity of the instant written consent at the time of preparing the written consent and whether the promotion committee’s identity is maintained

The issue of whether an administrative disposition is unlawful should be determined based on the relevant statutes and factual state at the time of the administrative disposition. However, pursuant to Article 13(2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8852, Feb. 29, 2008; hereinafter “former Act”), where an association composed of landowners, etc. intends to establish an association to implement a rearrangement project, the committee shall be organized with the consent of at least 1/2 of landowners, etc. and the approval of the head of the relevant Si/Gun shall be obtained. According to each subparagraph of Article 6 of the former Enforcement Rule of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8852, Feb. 29, 2008; hereinafter “former Act”), a person who intends to obtain approval for establishment of the committee shall be 200 or more members, including the landowner’s list, written consent, the address and name of the chairperson, and documents evidencing the selection of members, etc.

이러한 법리에 따라 이 사건 동의가 참가인 추진위원회의 설립에 관한 동의로서 유효한지 여부에 관하여 보건대, 원심판결의 이유와 기록에 의하면 ‘(가칭) 이문3동 256번지 일대 뉴타운 주택재개발정비사업 조합설립추진위원회’ (이하 ‘이 사건 가칭 추진위원회’라고 한다)는 서울특별시가 2006. 1. 26. 이문·휘경 3차 뉴타운지구를 지정·고시한 직후부터 원심판결문(별지도면 3)의 ㉠, ㉡, ㉢, ㉣ 부분을 사업구역으로 예상하여 추진위원회 설립에 나선 사실, 그런데 2007. 6. 8. 재정비촉진계획(안) 공람공고를 거쳐 2008. 1. 7. 재정비촉진계획결정으로 확정된 이문2재정비촉진구역(이하 ‘이 사건 사업구역’이라고 한다)은 당초 이 사건 가칭 추진위원회가 예상했던 지역과 달리 위 도면 ㉠, ㉤, ㉥ 부분이 된 사실, 이 사건 사업구역은 이 사건 가칭 추진위원회가 예상했던 당초의 사업구역과 비교하면 새로 추가된 위 ㉤, ㉥ 부분을 포함하더라도 사업면적은 207,940.90㎡에서 98,497㎡로, 그 구역 내 토지 등 소유자의 수도 1,212명에서 769명 정도로 축소된 사실, 그럼에도 이 사건 가칭 추진위원회는 2007. 6. 8. 공람공고 이전에 받은 동의서 347장을 포함하여 이 사건 사업구역에 남아 있게 된 토지 등 소유자 387명의 동의서(이하 ‘이 사건 동의서’라고 한다)만을 추려내어 피고에게 참가인 추진위원회의 설립승인을 신청하였고, 피고는 위 신청서에 이 사건 사업구역 내 토지 등 소유자 2분의 1 이상의 동의서가 첨부되어 있다는 이유로 이 사건 승인처분을 한 사실을 알 수 있다.

사정이 이와 같다면 이 사건 가칭 추진위원회가 당초 예정한 사업구역과 이 사건 사업구역 사이에는 위 도면 ㉠부분만 공통될 뿐 나머지 부분이 모두 달라 둘 사이에 동일성이 유지된다고 보기 어렵고, 따라서 이 사건 동의서 중 이 사건 가칭 추진위원회가 2007. 6. 8. 공람공고 이전에 위 도면 ㉠, ㉡, ㉢, ㉣ 부분에서 정비사업이 실시될 것을 전제로 받은 347장은 이 사건 승인처분을 받은 참가인 추진위원회의 설립에 관한 동의로 볼 수 없어서 결국 위 동의서를 기초로 한 이 사건 승인처분은 위법하다고 볼 것이다.

However, in order for an administrative disposition to be deemed null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient, and the defect is objectively obvious as serious in violation of the important part of the law. In determining the importance and clarity of the defect, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective, and at the same time, reasonable consideration should be made on the specificity of the specific case itself. In addition, in a case where an administrative disposition was rendered by applying a certain provision to a certain legal relationship or fact-finding, notwithstanding the absence of room for dispute over the interpretation, the legal principles clearly stating that the provision of the law cannot be applied to the legal relationship or fact-finding, and thus, if there is room for dispute over the interpretation because the legal principles that the provision of the law cannot be applied to the legal relation or fact-finding are clearly revealed, it cannot be said that it misleads the fact-finding and thus, it cannot be said that the defect is evident. Furthermore, even if there is an objective circumstance that it is likely to mislead the administrative disposition to be subject to an administrative disposition, it cannot be found clear.

In light of the above legal principles, although the approval disposition of this case was erroneous in the determination as to whether more than 1/2 of the owners of the land, etc., which is the requirement for approval of establishment of promotion committee, consent of the promotion committee is valid, it is not clear at the time that the above consent period or the legal principles on loss and invalidation in accordance with the relation with the business area were not clearly stated. In addition, the defendant did not know that some of the written consent of this case cannot be viewed as the establishment of the promotion committee of the participant without any separate factual basis, and therefore, it is obvious that the above illegal ground is to be regarded as a mere invalidation.

Therefore, the court below erred in finding that the provisional name promotion committee of this case received prior to the public inspection on June 8, 2007 among the written consent of this case, with the valid consent on the establishment of the intervenor promotion committee of this case. However, the inconsistency between the subject matter of consent and the subject matter of approval for establishment cannot be deemed a defect to the extent that the approval disposition of this case is null and void as a matter of course. Thus, the judgment below to the same purport is just and it does not err in the misapprehension of the law that affected the conclusion of the judgment in relation to the

2. As to the ground of appeal on the consent to the composition of the promotion committee

At the time of the instant approval disposition, the former Urban Improvement Act or relevant statutes require the establishment of a promotion committee only with the consent of at least 1/2 of the owners of land, etc., and there is no restriction on the method or form of consent. Thus, if the head of a Si/Gun who has received an application for approval of establishment of a promotion committee gives consent of at least 1/2 of the owners of land, etc. as to the composition of the relevant promotion committee and the committee can be confirmed to be comprised of at least five members including the chairperson, according to the attached documents attached to the application for approval, if the promotion committee

Therefore, even if the intervenor did not individually attach the written consent of the promotion committee at the time of receiving the instant written consent, it can be deemed that the written consent prepared by the landowners, such as the land, etc., as seen above, includes the purport that the landowner may act as the promotion committee member at the time, and the person who prepared the establishment of the promotion committee may be deemed as the promotion committee, or the promotion committee may be appointed or changed within the necessary scope to the extent. However, as long as the written consent of the owner of the land, etc. and the list of the promotion committee members attached thereto were submitted along with the written approval for the establishment of the promotion committee, the defendant cannot be seen as having known that there was no consent of the landowner, etc. of the promotion committee as to the land owner, etc., and otherwise, the consent of the promotion committee at the time of receiving the instant written consent cannot be deemed as null and void because there was no consent of more than 1/2 of the landowners, etc. on the composition of the promotion committee, or because such defect is apparent.

The judgment below to the same purport is just and there is no error of law that affected the conclusion of the judgment by misapprehending the legal principles on the method or form of consent, which is the requirement for the establishment of the promotion committee under the former Act on the Maintenance of Urban Areas and Dwelling Conditions for Residents, thereby affecting the conclusion of the judgment.

3. As to the ground of appeal on the person withdrawing consent

Article 17 of the former Act and Article 28 (1) 5 and (4) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Article 28 (1) 5 and (4) of the former Enforcement Decree of the Act provide that even if the owner of the land, etc. already consented to the composition of the promotion committee, he/she may withdraw the existing consent before the promotion committee makes an application for approval to the competent authority, but in such a way, he/she shall follow the method of written consent using the certificate of seal imprint and attach a certificate of seal imprint as well as consent

In the same purport, the court below is just in holding that the expression of intent to withdraw the plaintiffs' assertion is not effective, and there is no error of law by misunderstanding the legal principles on the withdrawal of consent to establish the promotion committee under the former Urban Improvement Act, which affected the conclusion of the judgment

4. Conclusion

Therefore, all appeals are 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 Ahn Dai-hee (Presiding Justice)