[1] Whether there is a benefit in litigation to seek revocation of the original authorization for the establishment of a new establishment after the authorization for the establishment was obtained

[2] The nature of the disposition and the method of determining legitimacy where an administrative agency made a disposition of modification in the form of modification in the modification of an association establishment authorization

[3] Whether the consent of the general meeting resolution can be replaced by the consent of at least 3/4 of the association members under the procedure for authorization for modification where a disposition was made in the form of an amendment to the reported matters in the amendment to the authorization for establishment (negative)

[4] In a case where the articles of association of a redevelopment cooperative practically changed to the extent that it would have a significant impact on the interests of union members compared to the time when the redevelopment cooperative was authorized to establish the redevelopment cooperative, the validity of the provisions of the articles of association which provide that the resolution required for the consent (at least 2/3 of union members) and the resolution of the resolution of the redevelopment cooperative may

[1] Where a housing redevelopment project association obtained authorization to change its establishment including all the contents of the initial authorization obtained through legitimate procedures after the initial authorization to change its establishment, the initial authorization to change the establishment is revoked and withdrawn, and the changed authorization to change the establishment of the association is the new authorization to change the establishment of the association. In this case, the initial authorization to change the establishment of the association is a disposition that does not exist any longer, or is a previous legal relationship, and there is no interest in litigation seeking revocation, barring special circumstances. However, if a housing redevelopment project association conducted subsequent activities, etc. based on the initial authorization to change its establishment, if the initial authorization to change its establishment was invalidated or revoked, the subsequent activities conducted on the premise that the initial authorization to change its establishment was invalidated or revoked becomes retroactively null and void, and thus, the interest in litigation seeking revocation

[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. 11059, Sep. 16, 201); the amendment of the matters stipulated in each subparagraph of Article 27 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. 22277, Jul. 15, 2010) is divided into the report procedure and the amendment of the other matters by requiring the procedure for the amendment of the authorization. In a case where the administrative agency made a disposition of modification in the form of a modification other than the procedure for filing the report in the form of a report, the nature of the report shall be deemed to be merely the acceptance of the report that changes the above reported matters. Therefore, whether it is legitimate should be determined depending on whether the report satisfies the procedure and requirements necessary for accepting the report, rather than whether the procedure and requirements for granting the authorization

[3] The former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 11059, Sept. 16, 201) provides that approval for the establishment of an association and the authorization for the establishment of an association shall be obtained consent in a written consent, the establishment and amendment of the articles of association, the formulation and amendment of the written project implementation plan, and the formulation and amendment of the management and disposal plan shall be subject to consent in accordance with the resolution of the general meeting. In the case of a resolution of the general meeting, at least 10/10 of the members of the association shall directly attend the general meeting [Article 24(5) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 11059, Sep. 16, 201]. Thus, even if a written consent of at least 3/4 of the

[4] In a case where the necessary entry in the articles of association of a redevelopment cooperative requires a procedure for the amendment of the articles of association to the extent substantially affecting the interests of union members when compared with the initial time when the redevelopment cooperative was authorized to establish the redevelopment cooperative, it is reasonable to view that the provision of Article 20(3) and 20(1)8 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 11059, Sept. 16, 201; hereinafter “former Act”) to protect union members’ interests requires the consent of more than 2/3 of union members by analogy of the provisions of Article 20(3) and 20(1)8 of the former Act to stipulate the requirement for special number of consent to the amendment of the articles of association, even if not the procedure for the amendment of the articles of association is not the procedure for the amendment of the articles of association, and thus, it is difficult to recognize that the articles of association of a redevelopment cooperative has a significant impact on the union members’ interests.

[1] Article 12 of the Administrative Litigation Act / [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. 11059, Sep. 16, 201); Article 27 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. 22277, Jul. 15, 201) / [3] Articles 16(1) and 24(5) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 11059, Sep. 16, 2011); Article 27 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. 22277, Jul. 15, 2010) / [4] Articles 16(1) and 28(3) of the former Act on the Maintenance and Improvement of Residents

[2] Supreme Court Decision 2009Du4555 Decided December 9, 2010 (Gong2011Sang, 137) / [4] Supreme Court Decision 2007Da31884 Decided January 30, 2009 (Gong2009Sang, 233), Supreme Court Decision 2010Du13463 Decided August 23, 2012 (Gong2012Ha, 1607)

Plaintiff (Law Firm Woo, Attorneys Kim Shin-chul et al., Counsel for the plaintiff-appellant)

The head of Mapo-gu

[Defendant-Appellant] District Housing Redevelopment and Improvement Project Association (Law Firm Hann Law, Attorneys Jeon-soo et al., Counsel for defendant-appellant)

Seoul High Court Decision 2011Nu220 decided May 17, 2012

All appeals are dismissed. The costs of appeal are assessed against the Intervenor, while the remainder is assessed against the Defendant.

The grounds of appeal by the Defendant and the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor Union”) are also examined.

1. As to the misapprehension of legal principles as to the interest in the lawsuit seeking the revocation of the modification authorization of this case

A. Where a housing redevelopment project association obtained authorization to change its establishment including all the contents of the initial authorization obtained after the initial authorization to change its establishment, the initial authorization to change the establishment is revoked and withdrawn, and the changed authorization to change the establishment becomes the new authorization to change the establishment of the association. In such cases, the initial authorization to change the establishment of the association is a disposition that does not exist any longer, or is a previous legal relationship, and there is no benefit in legal action seeking revocation, barring any special circumstances. However, if a housing redevelopment project association involved engages in subsequent activities, such as the establishment of a project implementation plan based on the initial authorization to change its establishment, if the initial authorization to change its establishment was invalidated or revoked, the subsequent activities conducted on the premise that the initial authorization to change its establishment was invalidated or revoked becomes retroactively null and void. Therefore, the benefit in legal action seeking revocation

B. According to the reasoning of the judgment below and evidence duly adopted and examined by the court below, the intervenor association obtained the approval of the project implementation plan of this case after the approval of the establishment of this case, and thereafter obtained the approval of the first association establishment of this case. The contents of the "a summary of the building to be constructed" compared to the approval of the establishment of the association of this case were to increase the total amount of 8.4.4 billion won from 8.4 billion won to 142.2 billion won to 68%, and the intervenor association obtained the approval of the project implementation plan of this case based on it. The intervenor association obtained the approval of the project implementation plan of this case. The intervenor association partially changed the "a outline of the building to be constructed" according to the floor area ratio by the resolution of the general meeting with the consent of more than 2/3 of the union members, and the "a outline of expenses to be incurred in removal and new construction of the building" was increased to 1,78.6 billion won.

C. Examining these facts in light of the aforementioned legal principles, insofar as an intervenor’s association did follow-up acts, such as obtaining authorization for the change of the project implementation plan of this case on the premise of the validity of the authorization for the change of this case, even if the intervenor association obtained the authorization for the change of the second establishment, including all the contents of the authorization for the change of this case through legitimate procedures, it shall be deemed that there is a benefit of lawsuit seeking the cancellation of the authorization for the change

2. As to the misapprehension of legal principles as to the legitimacy of the modification authorization of this case

A. Article 16(1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 11059, Sept. 16, 201; hereinafter “former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”) has the nature of an explanatory disposition that grants the status as an administrative body with authority to implement a housing redevelopment project if a person satisfies certain requirements under the law (see, e.g., Supreme Court Decision 2009Da30427, Oct. 15, 209). Article 16(1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 11059, Sept. 16, 201; hereinafter “former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”) differs from an amendment to the reported matters under each subparagraph of Article 27 of the former Enforcement Decree on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 222275, Jul. 15, 2015, etc.).

However, Article 34 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. 2010, Jan. 1, 2011) provides that the matters, including “the alteration of the outline of the design of the constructed building” (Article 34) and “the alteration of the outline of the cost necessary for the removal and new construction of the building” (Article 34) shall be subject to a resolution

In addition, the former Act on the Maintenance and Improvement of Urban Areas provides that approval for establishment and authorization for change of an association shall be obtained in a written consent, and the method of consent and resolution of a general meeting shall be applied to the establishment and modification of the articles of association, the formulation of and amendment to the project implementation plan, and the formulation of and amendment to the management and disposal plan, etc., shall be obtained in accordance with the resolution of the general meeting. In the case of the resolution of the general meeting, at least 10/100 of the members shall be required to directly attend the general meeting (Article 24(5) of the former Act). As such, even if a disposition is made in the form of modified approval while modifying the “reported report”, the consent of at least 3/4 of the members pursuant to

Meanwhile, in cases where the necessary matters to be stated in the articles of association of a redevelopment cooperative are substantially modified to the extent that it has a significant impact on the interests of union members when compared with the time at which the establishment of the redevelopment cooperative was originally established, it is reasonable to deem that the requirement for special number of consent should be applied mutatis mutandis to the provisions of Article 20(3) and 20(1)8 of the former Act to protect union members’ interests by stipulating the requirements for special number of consent even if such alteration was not made. On the other hand, if the articles of association of the redevelopment cooperative stipulate that the "expenses of a cooperative" that has a significant impact on union members’ interests should be resolved with the consent of at least 2/3 of the union members of the redevelopment cooperative, even though it actually changes the original contents of the authorization for the establishment of the redevelopment cooperative upon the strict consent requirement of Article 16(1) of the former Act, it is difficult to recognize that the provisions of the articles of association are 200 and 1600 of the same Act, and thus, it is considerably difficult to adopt the quorum of rights and interests of the redevelopment project (see 20.

B. According to the reasoning of the lower judgment and evidence duly adopted and examined by the lower court, the Intervenor Union, the main contents of which are to increase the total amount of 68% of the expenses incurred in removing and constructing the buildings, and obtained the instant authorization for modification with the consent of at least 3/4 of the association members, rather than the instant authorization for the establishment of the association. The Intervenor Union’s articles of association stipulate that matters concerning the bearing of the expenses of the association shall be resolved with the attendance of a majority of the association members and with the consent of at least 2/3

C. Examining these factual relations in light of the aforementioned legal principles and the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions, this case’s modification is related to changing “a rough amount of expenses incurred in removing and constructing a building.” This case’s modification refers to accepting a report that alters the “matters to be reported in the alteration of the authorization for the establishment of an association” under Article 27 subparag. 2-4 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for the modification of the said reported matters, and the consent of the general meeting resolution pursuant to Article 34 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for the modification of the said reported matters must be obtained. However, compared to the instant authorization for the establishment, the modification is unlawful since the contents of the modification increase by approximately 68% “a rough amount of expenses incurred in removing and constructing a building,” which is not a quorum as determined by the articles of association of the participant association, and thus, it is not legitimate to obtain the consent of not less than 2/3 of the members.

In the same purport, the court below accepted the plaintiff's claim and revoked the modification of this case's modification, and there is no error of law by misunderstanding the legal principles as to the legitimate requirements for modification of this case's modification.

3. As to the misapprehension of legal principle as to whether the establishment authorization is modified

The lower court determined to the effect that, inasmuch as the “sumptive amount of expenses incurred in removing and newly building structures” is an essential element of the written consent under Article 26(2) of the former Enforcement Decree of the Act on the Maintenance of Urban Areas and Dwelling Conditions for Residents, this constitutes the matters subject to the authorization of establishment, and thus, it may be contested

In light of the former Act on the Maintenance of Urban Areas and the records, the court below is just in holding the lawsuit of this case lawful in the above purport, and there is no error of law such as misunderstanding of legal principles

4. As to the misapprehension of legal principles as to the scope of cancellation of the modification authorization of this case

Even if an external administrative disposition is a single administrative disposition, if there is decentralization or part of the disposition can be specified, only a part can be revoked, and a part of the disposition can be revoked (see Supreme Court en banc Decision 95Nu850 delivered on November 16, 195, etc.).

In light of the intent of the Intervenor Union or the contents of the application for modification of the instant case, the lower court determined to the effect that the modification of the instant case’s contents on the modification of “a summary of the design of the building to be constructed” and “a rough amount of expenses incurred in removal and construction of the building” cannot be deemed as decentralization, and thus, the entire modification of

In light of the above legal principles, the judgment below is just, and there is no error in the misapprehension of legal principles as otherwise alleged in the ground of appeal.

5. As to the necessity of a ruling of assessment

In a case where an administrative disposition is unlawful, in principle, and where it is extremely inappropriate for the public welfare, the court may render a judgment that exceptionally permits the revocation or alteration of an illegal administrative disposition. Thus, the application of an assessment judgment should be limited under extremely strict requirements. In determining whether it is considerably inappropriate for the public welfare, which is such requirements, the necessity for cancellation or alteration of an illegal or unreasonable administrative disposition, and the situation against the public welfare that may arise from such revocation or alteration, etc. should be compared and determined (see, e.g., Supreme Court Decisions 94Nu4660, Jun. 13, 1995; 2009Du8359, Dec. 10, 2009).

In light of these legal principles, it is difficult to recognize the necessity of the assessment judgment in this case solely on the grounds alleged by the defendant.

6. 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 Min Il-young (Presiding Justice)