[1] In a case where there is a defect in the owner's consent such as land for the establishment of a housing redevelopment and improvement project association, whether the disposition to establish an association is void automatically

[2] The purpose of requiring the consent of the owners of land and others in writing under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, and requiring the submission of consent form to the competent administrative agency when applying for authorization of establishment of redevelopment association under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents

[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. 8785 of December 21, 2007) / [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. 8785 of December 21, 2007), Articles 26 (1) and 28 (4) 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 December 17, 2008), Article 7 (1) 3 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. 594 of December 13, 2007)

[1] Supreme Court Decision 2010Du16578 Decided December 23, 2010 / [2] Supreme Court Decision 2009Du4845 Decided January 28, 2010 (Gong2010Sang, 434)

Plaintiff 1 and four others (Law Firm LLC, Attorneys Kim In-jin et al., Counsel for the plaintiff-appellant)

Plaintiff Intervenor 1 and 10 others

The 7th Housing Redevelopment Project Association

Dae Forestry Industry Co., Ltd. (Law Firm Squa, Attorneys Kang Jong-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2009Na101017 decided August 26, 2010

All appeals are dismissed. The costs of appeal, including the part resulting from supplementary participation, are assessed against the plaintiffs.

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

1. As to the grounds of appeal Nos. 1, 2, 3, 5, and 6

A project implementer which is a project implementer of a housing redevelopment project is established by or with the authorization and registration of the competent administrative agency for the establishment of a redevelopment project, and the consent of owners, such as land for the establishment of an association, is merely one of the procedural requirements necessary to take an administrative disposition such as the authorization for the establishment of an association. Thus, even if there is a defect in the establishment of an association, if the defect is not serious or clear, the disposition to establish an association cannot be deemed as null and void as a matter of course (see Supreme Court Decision 2010Du16578, Dec. 23, 2010). Meanwhile, the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785, Dec. 21, 2007; hereinafter referred to as the "Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents") requires the consent of owners such as land under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents to submit such consent to the competent administrative agency upon the application for the approval for the establishment of an association.

After recognizing the facts as indicated in its reasoning, the lower court determined that: (a) the new housing redevelopment promotion committee (hereinafter “instant promotion committee”) was submitted on November 24, 2006 at the time of filing an application for authorization to establish a new construction structure (hereinafter “instant association establishment consent”) with the head of the Jung-gu Seoul Special Metropolitan City on November 24, 2006, stating the following: (b) the contents of the consent to the association establishment consent by the association’s articles of association are attached to the association establishment consent; and (c) the committee’s consent to the association establishment approval is limited to the association establishment consent submitted to the competent administrative agency; and (c) the association’s consent to the land owner, etc., which is the requirement for the authorization to establish the redevelopment association, was not valid due to the lack of consent from the association’s association establishment approval; and (d) the association’s consent to the new construction of the instant land, etc. was not required to be attached to the association’s association establishment approval.

In light of the above legal principles and records, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of the legal principles as to the requirements for the establishment approval of redevelopment cooperatives and the burden of proof, or in violation of the duty of explanation and the free evaluation

2. As to the fourth ground for appeal

The lower court erred by failing to determine the Plaintiffs’ assertion that the instant authorization for establishment is null and void, since the head of the Seoul Central District Office’s approval for establishment of the instant promotion committee (hereinafter “instant approval disposition”) was made before the rearrangement zone is designated and publicly announced, and the Defendant Union was established by the instant promotion committee whose approval for establishment is null and void.

However, according to the reasoning of the judgment below and the evidence duly adopted by the court below, the Mayor of Jung-gu Seoul Special Metropolitan City established a master plan for urban and residential environment improvement on June 25, 2004 and publicly announced the 45,52,000 square meters as a rearrangement zone in Jung-gu, Seoul Special Metropolitan City, and the head of the Gu in Seoul issued the approval of this case on October 13, 2004. The promotion committee of this case set the 65,52,000 square meters as a project implementation zone in Jung-gu, Jung-gu, Seoul and the 45,000 square meters as a new-dong 65,52,000 square meters as a rearrangement zone. On January 5, 2006, the Mayor of Jung-gu, Seoul Special Metropolitan City designated the 51,817 square meters as a rearrangement zone.

According to the above facts, even if the approval disposition in this case was conducted with the consent of the majority of the owners, such as the land determined by the zone to be rearranged before the designation and public notice of the rearrangement zone, it cannot be deemed that the defect is serious or obvious and null and void (see Supreme Court Decision 2010Du9358, Sept. 30, 2010). Thus, the above assertion by the plaintiffs based on this premise cannot be accepted, and it does not affect the conclusion of the judgment by the court below which did not determine the above assertion by the plaintiffs.

3. As to the grounds of appeal Nos. 7 and 8

A. The lower court stipulated that ① the former Act on the Maintenance and Improvement of Urban Areas, which was amended by Act No. 7392 on March 18, 2005 and enforced from the same date, should only select a contractor by means of competitive bidding as determined by the Minister of Construction and Transportation after obtaining authorization for the implementation of the housing reconstruction project. As such, housing redevelopment project partnership can be seen as able to select a contractor through a resolution of the general meeting of association under the conditions as determined by the articles of association; ② Article 11(1) of the former Act on the Maintenance and Improvement of Urban Areas, which was amended by Act No. 7960 on May 24, 2006 and enforced from August 25, 2006 (hereinafter “former Act”) provides that a housing redevelopment project partnership shall select a contractor after obtaining authorization for the establishment of the housing redevelopment project association, and Article 11(2) of the amended Act provides that the project implementer shall select a contractor by means of competitive bidding as determined by the Minister of Construction and Transportation.

In light of the relevant legal principles and records, the above determination by the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the interpretation of Article 11 of the amended Act and Article 2 of the Addenda.

B. The court below acknowledged that Article 12 (1) of the articles of incorporation of the defendant association provides that "the selection of a work executor shall be made by means of a general competitive bidding or a competitive competitive bidding, a public notice shall be given in daily newspapers on at least one occasion, and a participant proposal shall be submitted and selected at the general meeting shall be submitted after the site site site consultation shall be held: Provided, That where two or more times are failed due to failure, a negotiated contract may be made by applying mutatis mutandis the provisions of Article 27 of the Enforcement Decree of the Act on Contracts to Which the State is a Party through the resolution of the general meeting. The same shall apply to the case of changing the selected work executor. However, Article 12 of the Articles of association shall not apply to a work executor selected as an open competitive bidding by the resident general meeting prior to the enforcement of the Act on the Maintenance and Improvement of Urban Areas, and it shall be deemed the work executor selected by the articles of incorporation of the defendant association." Since the large forest industry was selected as a work executor on June 22, 2003 by the resident general meeting.

In light of the records, the above determination by the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors in finding facts against logical and empirical rules.

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 Kim Shin (Presiding Justice)