Where a reconstruction association under a reconstruction project parcels out a new house or site to its members after obtaining approval of a management and disposal plan under Articles 33 through 45 of the former Urban Redevelopment Act, which apply mutatis mutandis pursuant to Article 44-3(5) of the former Housing Construction Promotion Act, and following the procedures such as the public announcement of the sale disposition, or the approval of a management and disposal plan under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents and Dwelling Conditions for Residents, and the transfer and public announcement thereof, whether the right to the old house or site can be deemed to have been legally exchanged or modified as a right to the new house or site, regardless of the intention of the right holder (affirmative), and whether the identity between the ownership of the old house or site and the ownership of the new house or site is maintained (negative)

A reconstruction association, while implementing a reconstruction project, has changed the right to public refund depending on the authorization of the management and disposal plan prescribed in Articles 33 through 45 of the former Urban Redevelopment Act (repealed by Article 2 of the Addenda to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Act No. 6852, Dec. 30, 2002) which applies mutatis mutandis pursuant to Article 44-3(5) of the former Housing Construction Promotion Act (amended by Act No. 6852, Dec. 30, 2002) and the procedures such as the announcement of the disposal and disposal plan as well as the subsequent announcement of the transfer thereof, etc.

Article 44-3(5) of the former Housing Construction Promotion Act (amended by Act No. 6852 of December 30, 2002), Article 34 (see current Article 74 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents), Article 35 (see current Article 76 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents), Article 38 (see current Article 83 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents), Article 39 (see current Article 87 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents), Articles 74, 76, 83, and 87 of the former Housing Construction Promotion Act (amended by Act No. 6852 of December 30, 2002),

[Plaintiff-Appellant] Plaintiff 2008Da1132 decided Jun. 23, 2009 (Gong2009Ha, 1177)

Plaintiff (Attorney Han-jin, Counsel for the plaintiff-appellant)

Defendant (Law Firm LLC, Attorneys Kim Yoon-le et al., Counsel for defendant-appellant)

Seoul Eastern District Court Decision 2019Na21004 decided August 28, 2019

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Whether it falls under the public exchange right; and

A. A reconstruction association's implementation of a reconstruction project differs from whether the right to the old house or building site has been mandatorily exchanged or modified as a right to the new house or building site, regardless of the intention of the right holder, and thus becomes a common refund right (see, e.g., Supreme Court Decision 2008Da2852, Dec. 30, 2002; hereinafter the same shall apply) pursuant to Articles 33 through 45 of the former Urban Redevelopment Act, which applies mutatis mutandis pursuant to Article 44-3 (5) of the former Housing Construction Promotion Act (amended by Act No. 6852, Dec. 30, 2002; hereinafter the same shall apply). However, in the case of a reconstruction association's sale of a new house or building site after going through such procedures, it cannot be deemed that the old association or building site or building site has been subject to a public refund right only because it has acquired a new house or building site without going through such procedures, and it cannot be deemed that it has been subject to a public exchange of ownership or ownership on the new house or building site.

B. The lower court determined that the identity between the two cannot be deemed to be recognized on the following grounds, on the grounds that the ownership of the previous apartment cannot be deemed to have been forcedly exchanged or modified as the ownership of the apartment of this case.

(1) In the process of destroying the instant apartment and rebuilding the instant apartment, the management and disposal plan authorization and the transfer announcement procedure under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents were conducted.

(2) However, during that process, the apartment of this case was entrusted in the name of the defendant to the Association of Hoi-Gongju 3 Apartment Complex Reconstruction (hereinafter “the reconstruction Association of this case”) and the members’ charges were paid pursuant to the sales contract separately concluded, and the registration of ownership preservation was made in the name of the defendant with respect to the apartment of this case.

C. Examining the records in light of the aforementioned legal principles, it is difficult to view that the reconstruction association of this case obtained the authorization of management and disposal plans under Articles 33 through 45 of the former Urban Redevelopment Act, which are applied mutatis mutandis pursuant to Article 44-3(5) of the former Housing Construction Promotion Act, and the procedures such as the announcement of sale disposition, etc., or completed the procedures such as the authorization of management and disposal plans under the Act on the Maintenance and Improvement of Urban Areas and

(1) After the reconstruction association of this case made a resolution on the management and disposition plan and obtained authorization for completion, and then made a transfer announcement by clarifying the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents. However, the management and disposition plan so resolved is not entirely indicated in the “the address and name of the purchaser” stipulated to be included in the management and disposition plan under Article 34(4) of the former Urban Redevelopment Act or 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), “the estimated amount of the site or constructed facilities scheduled for parcelling-out for each purchaser,” and “the specification of rights other than the ownership of the previous land or buildings of the purchaser.” Furthermore, as revealed by the judgment of the court below, it is difficult to view that the reconstruction association of this case did not obtain authorization of the above management and disposition plan (it also constitutes an exception that

(2) As long as the instant reconstruction association did not go through the procedure for authorization of the management and disposal plan prescribed in the former Urban Redevelopment Act, etc., it cannot be deemed that the right of public refund pursuant to the public announcement of transfer prescribed in the above Act takes effect even if it was made by specifying the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (see Supreme Court Decision 92Da14878 delivered on May 27, 1993).

D. Therefore, since the ownership of the previous apartment cannot be deemed to have been mandatorily exchanged or modified with the ownership of the apartment of this case and thus, it cannot be deemed that it has been jointly refunded among the two parties. Although the reasoning of the lower judgment is inappropriate, the conclusion that rejected the Plaintiff’s assertion on this part is justifiable, the lower court did not err and adversely affect the conclusion of the judgment.

2. Whether the reconstruction association of this case knew of the title trust agreement

The lower court determined that the instant reconstruction association did not know that it was a title trust agreement between the Plaintiff and the Defendant on the instant apartment.

The allegation in the grounds of appeal in this part is not a legitimate ground of appeal, since it contests the selection of evidence and the legitimacy of fact-finding which belong to the full authority of the fact-finding court as to whether the instant reconstruction association knew of the title trust agreement. Furthermore, even if examining the record in light of the relevant legal principles, the lower court did not exhaust all necessary deliberations, and did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical

3. Conclusion

The Plaintiff’s appeal is dismissed as it is without merit, 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.

Justices Lee Dong-won (Presiding Justice)