[1] Whether there is a benefit to seek confirmation of invalidity of a resolution of the establishment of an association by civil action on the ground that there is a defect in the establishment resolution after the approval of the association is imposed (negative)

[2] The nature of legal relations surrounding the appointment, dismissal, etc. between the redevelopment association and the head of the partnership or partnership's officers under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents

[3] In a lawsuit for confirmation, where there is a benefit to confirm the legal relationship between one party and a third party or the legal relationship between a third party in the lawsuit for confirmation

[4] Whether a building without permission is included in "building" to which the owner is entitled to membership pursuant to Article 2 subparagraph 9 (a) and Article 19 (1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (negative in principle)

[1] In order to deny the validity of an application for authorization for the establishment of redevelopment association under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785 of Dec. 21, 2007), for the establishment of redevelopment association on the ground that there is a defect in the establishment resolution after the administrative agency's disposition for authorization for establishment of the redevelopment association, the validity of the disposition for authorization for establishment of the redevelopment association should be disputed through an appeal litigation. Unless there are special circumstances, it should be deemed that there is no benefit to seek confirmation on the establishment resolution of an association, which

[2] Under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785 of Dec. 21, 2007), the legal relationship surrounding the appointment, dismissal, etc. between the redevelopment association and the head of the partnership or the partnership's officers can not be deemed as a party litigation under public law as a matter of course, or a lawsuit disputing the status of the partnership's head or partnership's officers cannot be deemed as a party litigation under public law. Since the provisions of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents set the relationship between the redevelopment association and the partnership's head and the partnership's partnership's partnership's officers as a special relationship under public law, the legal relationship surrounding the appointment, dismissal, etc. between the redevelopment association and the partnership's head or partnership's partnership's officers should be based on civil procedure

[3] A lawsuit for confirmation does not mean that only the relationship between the parties can be confirmed, but also the relationship between one party and a third party or the relationship between a third party is in dispute between the parties, causing uneasiness or risk in the relationship between the parties. If the legal relationship between the parties is effective and appropriate means to eliminate anxiety or risk in the relationship between the other party, it is the interest in confirmation of the relationship between one party and a third party or the relationship between the third party.

[4] Articles 2 subparag. 9(a) and 19(1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785 of Dec. 21, 2007) provide that the owner or superficies of the land or building located in the rearrangement zone shall be a member of the redevelopment association. In principle, an unauthorized building should be removed in accordance with the relevant Acts and subordinate statutes, but it cannot be permitted for the owner to enjoy benefits arising from the implementation of the redevelopment project as a result of giving the ownership of the building's membership. For the smooth implementation of the redevelopment project, considering various circumstances, such as the fact that the illegal owner's profit is the result of receiving the benefit, and there is a little realistic need to regulate the construction of the unauthorized unauthorized house in the rearrangement zone. In order to smoothly implement the redevelopment project, the building granted the owner's qualification as a member under Articles 2 subparag. 9(a) and 19(1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents means a legitimate building, but does not include an unauthorized building without permission.

[1] Articles 16 (1) and (5), 18, 38, and 48 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785 of Dec. 21, 2007) / [2] Articles 16 (1) and (5), 18, 38, and 48 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785 of Dec. 21, 2007) / [3] Article 250 of the Civil Procedure Act / [4] Article 2 subparagraph 9 (a) and Article 19 (1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785 of Dec. 21, 2007)

[1] Supreme Court en banc Decision 2007Da2428 Decided September 17, 2009 (Gong2009Ha, 1648) / [3] Supreme Court Decision 96Da2549, 25456 Decided June 10, 1997 (Gong1997Ha, 2125) Supreme Court Decision 2006Da77272 Decided February 15, 2008 / [4] Supreme Court Decision 97Nu4975 Decided July 27, 199 (Gong199Ha, 1812)

Debtor 1 and 6 others (Attorney Seo-soo et al., Counsel for the defendant-appellant)

Creditor Co., Ltd. (Attorney Kim Jae-chul et al., Counsel for the plaintiff-appellant)

Intervenor, Inc.

Seoul High Court Order 2008Ra1060, 2252 dated January 7, 2009 (Intervention)

All reappeals are dismissed.

The grounds of reappeal are examined.

1. As to the first ground for reappeal

A. According to the reasoning of the order of the court below and the record, the creditor filed a provisional disposition of this case with the purport that the establishment of the association of this case is null and void since the ○○ Housing Redevelopment and Improvement Project Association (hereinafter “the association of this case”) which violated 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, Dec. 21, 2007; hereinafter “former Urban Improvement Act”), and the creditor filed an application of provisional disposition of this case with the Seoul Central District Court for a suspension of the debtor’s execution of duties until the main decision of this case becomes final and conclusive on January 15, 2008 on the ground that the establishment of the association of this case is null and void. Accordingly, the Seoul Central District Court rendered a provisional disposition order of this case with the purport that the debtor’s execution of duties is suspended until the principal decision of this case on February 25, 2008 for the confirmation of invalidity of

The court below rejected the defense of violation of jurisdiction, based on the fact that the association of this case constitutes a public corporation established under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions, and the lawsuit of this case should be an administrative litigation, and since the application of provisional disposition of this case cannot be filed for nullification of invalidity of the resolution of the association of this case or for suspension of the performance of duties by the head of the association and the partnership's officers due to civil provisional disposition, the application of provisional disposition of this case is unlawful as to the debtor's violation of jurisdiction. The disposition of the establishment authorization of the partnership of the redevelopment association of this case is supplementary act, and the resolution of the association can be filed even after the establishment establishment is conducted under the premise that the association establishment is based on the basic act, and the creditor can request non-existence or nullification of the resolution of the association establishment of this case's civil litigation, and further, the creditor can seek confirmation of invalidity of the resolution of the appointment of executive officers of the association of this case to carry out the redevelopment project as an executive officer of the association of this case.

B. A housing redevelopment project partnership under the former Act on the Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Redevelopment project”) obtains consent to establish a partnership (hereinafter “the consent”) from the owners of land or buildings located in a rearrangement zone or persons with superficies (hereinafter “owners of land, etc.”) and applies for authorization to establish a redevelopment association from an administrative agency in accordance with the requirements and procedures of the relevant Acts and subordinate statutes (Articles 16(1), 16(5), and 18 of the former Act). A redevelopment partnership established following the above procedures obtains the status of an administrative body granted special existence in the legal relations of its members as a project implementer of a redevelopment project, and such administrative body is deemed to have the authority to apply for authorization to establish a redevelopment project (Article 38 of the former Act), and a management and disposal plan (Article 48 of the former Act on the Improvement of Urban Areas and Dwelling Conditions for Residents), and an administrative authority’s authority to apply for authorization to establish a redevelopment project, not merely granting the status of an administrative authority as an administrative body (Article 61 of the former Act).

Therefore, in order to deny the validity of an application for authorization for the establishment of redevelopment association under the former Act on the Improvement of Urban Areas and Dwelling Conditions for the reason that there is a defect in the establishment resolution after the administrative agency's disposition of authorization for the establishment of redevelopment association, the validity of the disposition for authorization for the establishment of redevelopment association should be disputed through an appeal litigation. Unless there are special circumstances, it should be deemed that there is no benefit to seek confirmation of invalidity of the establishment resolution, which is only one of

Unlike this, the court below's decision to the purport that the non-existence of a resolution of establishing an association may be claimed as a civil litigation even after an administrative agency's disposition of approving the establishment of an association is against the above legal principles. However, the above error cannot be viewed as an error affecting the trial for the following reasons. Thus, the court below's decision cannot be viewed as the ground for reversal

C. The legal relationship surrounding the appointment, dismissal, etc. between the redevelopment association and the head of the partnership or the partnership's officers under the former Act on the Improvement of Urban Areas and Dwelling Conditions cannot be seen as a party litigation under the public law as a matter of course, or a lawsuit disputing the status of the head of the partnership or the partnership's officers cannot be seen as a party litigation under the public law. Since the provisions of the former Act on the Improvement of Urban Areas and Dwelling Conditions provide for the relationship between the redevelopment association and the head of the partnership and the partnership's officers as a special relationship under the public law, the legal relationship surrounding the appointment, dismissal, etc. between the redevelopment association and the partnership's head or the partnership's officers is a legal relation under the private law and the lawsuit

As seen earlier, it is clear that the right to be preserved in the provisional disposition of this case is not the claim for nullification of the resolution of the establishment of the association, but the order of the court below also judged whether the application for nullification of the resolution of the establishment of the association is invalid or not on the premise that the application for nullification of the resolution of the establishment of the association is not the right to be preserved in the provisional disposition of this case, but is not the right to be preserved in the preliminary issue of the claim for nullification of the resolution of the appointment of an officer. In light of the above legal principles, the application for provisional disposition of this case was filed as the right to be preserved in private law

The judgment of the court below with the same conclusion is just, and there is no error of law by misunderstanding the legal principles as to exclusive jurisdiction as otherwise alleged in the grounds for reappeal, which affected the judgment.

2. As to the second ground for reappeal

A lawsuit for confirmation does not mean that only the relationship between the parties can be confirmed, but also with respect to the relationship between one party and a third party or the relationship between a third party, if there is an apprehension or risk in relation to the relationship between the parties in dispute between the parties, and the other party's relationship is an effective and appropriate means to eliminate anxiety or risk in relation to the relationship between the parties (see, e.g., Supreme Court Decisions 96Da2549, 25456, Jun. 10, 1997; 2006Da727272, Feb. 15, 2008).

According to the reasoning of the order of the court below and the record, the creditor shall undertake the apartment housing project that constructs and sells apartment buildings on a scale of 50,367 m2 in Dongjak-gu Seoul, including each of the land in this case. The creditor shall purchase each of the land in this case and raise funds by project financing method, and shall trust the land in this case to the intervenor corporation and receive funds from the financial company that is the priority beneficiary on the trust ledger. Thus, if the association of this case has significant defects in the establishment of the association in this case, if the association of this case, although the association of this case has significant defects in the establishment of the association of this case, is likely to lose the creditor's rights and legal status on the trust contract of each of the land in this case, and it is necessary to prevent the creditor from exercising the right of the redevelopment association to expropriate the land and seek for the nullification of the execution of the association's execution of its duties in the position of the creditor who tried to implement the apartment housing project on his own with the permission of construction permission, etc., and it is necessary to prevent the creditor from exercising the right of the redevelopment association's's as an effective measure of civil action.

In the same purport, the court below is just in rejecting the debtor's assertion that the claim for nullification of the resolution of appointment of an officer who has no interest in confirmation is unlawful, and there is no error in the misapprehension of legal principles as to the interest in confirmation as otherwise alleged in the grounds for reappeal.

3. As to the grounds of reappeal Nos. 3 and 4

Article 2 Subparag. 9 (a) and Article 19 (1) of the former Act provide that the owners of land or buildings located in an improvement zone or persons with superficies thereof shall be members of the redevelopment association. In principle, an unauthorized building should be removed in accordance with relevant Acts and subordinate statutes. However, giving the owners the qualification of association members and allowing them to enjoy benefits arising from the implementation of the redevelopment project would result in the illegal act’s profit. In order to smoothly implement the redevelopment project, there is no substantial need for regulating the difficult establishment of unauthorized housing in the improvement zone. If the owners of unauthorized buildings are to be construed as owners of land, etc. prescribed in subparagraph 9 (a) of Article 2 of the former Act, it should be interpreted that the owners of land or buildings without permission were to establish an association and redevelopment association on another’s land and forced the owners of the land to incorporate the land into the redevelopment project, and thus, it shall not be deemed that the owners of land or buildings are entitled to legitimate ownership within the scope of the redevelopment association’s qualification under Article 2 Subparag. 9 (a) and Article 19 (1) of the former Act.7).

According to the reasoning of the order of the court below, the committee for the establishment of ○○ Housing Redevelopment Project shall hold an inaugural general meeting on August 23, 2007 as an agenda for the establishment of the instant association. The court below decided to the effect that 26 persons among 53 land and building owners in the instant rearrangement zone, 23 persons among 292 building owners (290 persons among them are unauthorized building owners) decided to establish the association with the consent of 265 persons among 292 building owners (290 persons are unauthorized building owners), and 1 of the debtor is the head of the association, 2, 3, 4, 5, and 6 of the debtor, and 7 of the debtor as an auditor. The debtors elected as the head of the instant association and executive officers of the instant association shall be the owner of the building without permission, 33 persons among the owners of the land, etc., 78 persons who consent to the establishment of the instant association and the necessity of the association's establishment of the Urban Development Project Act shall be deemed unlawful and 4.

In light of the records, the above judgment of the court below is just in accordance with the legal principles as seen earlier, and there is no error in the misapprehension of legal principles as to the right to be preserved or the necessity of preservation as asserted in the ground of reappeal in the ground of reappeal that the claim for nullification of the appointment of an officer who is the right to be preserved of the provisional disposition of this case cannot be a legitimate right to be preserved of the provisional disposition of this case.

4. Conclusion

Therefore, all reappeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)