2018Nu399444 Action for revocation of management and disposition plan

1. B

2. C.

3. D;

[Defendant-Appellant] Plaintiff LLC et al.

[Defendant-Appellee] Plaintiff 1 and 18

A Apartment Housing Reconstruction Project Association

Law Firm LLC, Attorney Park Jae-soo

Attorney Yu Dong-chul, Attorney Kim Dong-chul, Gyeong-chul and Hong-ju

Attorney Lee Im-soo, Counsel for the defendant-appellant

Seoul Administrative Court Decision 2015Guhap57802 decided September 11, 2015

Seoul High Court Decision 2015Nu60084 Decided February 2, 2016

Supreme Court Decision 2016Du35281 Decided March 13, 2018

August 16, 2018

September 13, 2018

1. The part against the defendant in the judgment of the first instance shall be revoked;

2. All plaintiffs' claims corresponding to the above revocation are dismissed.

3. The costs of the lawsuit are assessed against the Plaintiffs.

1. Purport of claim

The defendant's management and disposal plan authorized by the head of Songpa-gu Seoul Metropolitan Government on January 27, 2015 shall be revoked.

2. Purport of appeal

It is as set forth in paragraphs 1 and 2 of this Decree.

1. Scope of adjudication of this court;

As to the part of incidental appeal by the plaintiffs, that is, the proportional ratio of commercial buildings and the standard date of appraisal of the previous asset value among the management and disposal plans approved by the defendant by the head of Songpa-gu Seoul Metropolitan Government on January 27, 2015, the Supreme Court dismissed and confirmed the plaintiffs' appeal from the Supreme Court, and reversed and remanded only to the part against the defendant in the judgment before remand. Thus, the scope of judgment of this court is limited to the part against the defendant in the judgment of the first instance

2. Basic facts

A. The apartment complex A1 and the second apartment complex on the land outside Songpa-gu Seoul and one parcel (hereinafter referred to as the “instant apartment complex”) consists of 134 apartment buildings, 6,600 apartment buildings, and 324 commercial buildings (hereinafter referred to as the “instant commercial buildings”), and the Defendant Union is a reconstruction association established on June 12, 2003 for the reconstruction project of the instant apartment complex (hereinafter referred to as the “project”).

B. Of the Defendant’s members, the sectional owners of the instant commercial building, including the Plaintiffs, established a A Apartment Housing Reconstruction and Improvement Project Association Council (hereinafter referred to as the “Standing Council”) in order to promote the reconstruction of the instant commercial building according to the so-called independent settlement system, and the Plaintiff B is the president, Plaintiff C, and D of the Commercial Building Council.

C. The Defendant established a project implementation plan on July 27, 2007 at the resolution of the general meeting and received authorization to implement the project on April 1, 2008.

D. On June 17, 2013, the Defendant entered into a business agreement with only the Defendant’s member of the commercial building to adopt the so-called “independent settlement system” (hereinafter “instant business agreement”). The content of the agreement: ① the development gains of the commercial building and the expenses incurred in reconstruction thereof are shared only among the members of the commercial building; ② the establishment of the management and disposal plan including the size of the commercial building, timing of sale, selling price, internal design and design; ② the distribution purpose of the commercial building; ② the construction of the commercial building, such as the structure of the business; the disposal and settlement of the development gains of the commercial building; and ② the establishment of the management and disposal plan including the construction plan for the commercial building, such as the construction of the commercial building; and the disposal and settlement of the development gains of the commercial building;

E. On July 15, 2013, the Defendant passed a resolution at a general meeting to ratification the conclusion of the instant business agreement with the consent of 80,87% of its members.

F. On October 29, 2014, the Commercial Building Council voluntarily prepared a commercial building management disposition plan (hereinafter referred to as “the instant commercial building management plan”) and resolved by the council, and notified the Defendant that the instant plan was resolved by the council of representatives of the commercial building councils and sent a special meeting book containing the instant plan, but the Defendant Union returned the plan to the commercial council on November 4, 2014.

G. On November 19, 2014, the Commercial Building Council held an extraordinary meeting of the Commercial Building Council and resolved on the instant plan for the management and disposal of commercial buildings with the consent of 154 persons among 285 members (at the consent rate of 54.03%), and on November 24, 2014, notified the Defendant that the instant plan for the management and disposal of commercial buildings was resolved at the extraordinary meeting of the Commercial Building Council, and sent the minutes of the said plan to the Defendant on November 28, 2014.

H. On December 1, 2014, the Defendant requested the commercial building management and disposition plan of this case to send the materials proving that the plan was formulated by reflecting the intent of the members of the commercial building on December 4, 2014, such as the list of the participants of the extraordinary general meeting of the commercial building council, written resolution, stenographic records of the extraordinary general meeting, and recording files. However, the commercial building council did not take any particular measure against this.

(i) On December 9, 2014, the Defendant held an ordinary general meeting and passed a resolution to approve a management and disposition plan formulated separately by the Defendant’s board of directors (including not only the management and disposition plan concerning apartment but also the management and disposition plan concerning commercial buildings in such period) without reflecting the draft of the management and disposition plan for commercial buildings (the Defendant’s management and disposition plan formulated through such plan) (the “instant management and disposition plan”) and the head of Songpa-gu Seoul Metropolitan Government announced the instant management and disposition plan on January 27, 2015 on January 29, 2015 (the Songpa-gu Seoul Metropolitan Government Notice F).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 6, 9, 11, 12, 13, Eul evidence Nos. 5 and 9 (including branch numbers), the purport of the whole pleadings

3. The plaintiffs' assertion

Defendant Union promised to proceed with reconstruction by means of an independent settlement system to the members of the commercial building including the Plaintiffs, and according to the instant business agreement concluded accordingly, the authority to establish the management and disposal plan concerning the instant commercial building portion exists in the commercial building council. However, the Defendant Union established the instant management and disposal plan that violates the instant management and disposal plan with respect to the attribution of ownership of the new commercial building, proportional ratio, standards for allocation of settlement money, etc. without submitting or reflecting the draft of the management and disposal plan of the commercial building portion established by the commercial building council to the general meeting of the members of the association.

4. Whether the management and disposal plan of this case is legitimate

A. The nature of the instant work agreement

1) Relevant legal principles

A) An association for maintenance and improvement projects is an administrative body with the authority to implement a rearrangement project under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (wholly amended by Act No. 13912, Jan. 27, 2016; hereinafter referred to as the “Urban Improvement Act”). At the same time, it is a public law organization comprised of union members (see Supreme Court Decision 2008Da60568, Sept. 24, 2009). In a case where the Urban Improvement Act delegates to the articles of association for certain autonomous matters relating to the implementation of a rearrangement project, the association may establish the “articles of association, which is the autonomous norm within the organization, according to the autonomous and democratic intent of the union members to the extent that it does not violate superior statutes (see Supreme Court Decisions 2001Da78980, Apr. 26, 2002; 2006Du14666, Oct. 12, 2007).

B) Article 20(1)6, 8, 9, and 17 of the Urban Improvement Act provides that a cooperative shall prepare its articles of association, including "execution method of a rearrangement project", "rights and obligations of partnership executives", "expenses borne by partnership associations", "other matters prescribed by Presidential Decree for the promotion of rearrangement projects and the operation of partnership" (Article 20(1)6, 8, 9, and 17), "matters concerning the allocation and vicarious performance of duties of executive officers", "matters concerning management and disposal plans", and "matters concerning the rights and obligations of partnership members" (Article 31 subparag. 2, 10, and 15).

Among the members of a reconstruction association, there are cases where the association and the commercial council agree on the contents of a management and disposal plan concerning commercial buildings (i.e., the so-called "an independent settlement agreement", (ii) the part of the members of the association could affect the shares of each member, and (iii) the burden of expenses of the association and the rights and obligations of members of the association, and (iv) the part of the association constitutes "the rights and obligations of members of the association" as the matters concerning the management and disposal plan concerning the rights and obligations of the association, not the establishment of a management and disposal plan which should be presented at the general meeting and approved by the association but the board of directors of the association.

However, if the resolution of a general meeting of a union that decides to adopt this content is not formally modified, but formally, if it is valid as a general meeting resolution, and if it satisfies the substantial quorum for amending the articles of association, it shall be deemed that it has the effect as a norm binding an internal agency of the union at least within the union (see Supreme Court Decision 2010Du13463, Aug. 23, 2012). This is because the general meeting of a union is the highest decision-making agency of the union (see Supreme Court Decision 2008Da53430, May 27, 2010). The amendment of the articles of association must obtain authorization from the supervisory authority after it has been decided through the general meeting resolution of the union (see Article 20(3) of the Urban Improvement Act). Here, the supervisory authority’s approval is merely a supplement to completing the effect of the general meeting resolution, which is a basic act (see Supreme Court Order 2006Ma6356, Jul. 24, 2007).

2) In the instant case:

In light of the above basic facts D. E. In light of the above legal principles, the contents agreed in the instant business agreement have a significant impact on not only commercial partners but also apartment partners’ share of expenses. Thus, the adoption of such contents constitutes a substantial modification of the main contents of the articles of association, and thus requires the consent of at least 2/3 of the members. The Defendant, at the general meeting of July 15, 2013, approved the instant business agreement and adopted the separate settlement system for commercial buildings with the consent of at least 80.87% of the Defendant’s association members, and the contents of the resolution have become binding inside the Defendant.

B. Whether the management and disposal plan of this case is unlawful because it is contrary to the independent settlement system of commercial buildings

1) Relevant legal principles

An association’s general meeting is the highest decision-making body of the association, and an amendment to its articles of association or the formulation or amendment of a management and disposal plan is subject to the resolution of the general meeting. As such, the association’s general meeting has the discretion to withdraw or modify the contents of the previous general meeting’s resolution by a resolution of a new general meeting. However, such autonomy and discretion cannot be unlimited. If the general meeting resolution that intends to amend the internal rules of the association is legitimate,

First, the resolution of the general meeting shall meet the procedure and the quorum stipulated in the superior law and the articles of association. The procedure and the quorum of the general meeting shall be followed by the articles of association unless otherwise stipulated by the superior law (Article 24(6) of the Urban Improvement Act). However, the Urban Improvement Act provides that the bearing of expenses by a cooperative shall be stipulated in the articles of association (Article 20(1)8) and that the consent of at least 2/3 of the cooperative members shall be obtained in order to modify the said matter (Article 20(3)). Thus, in a case where the matters concerning the bearing of expenses by a cooperative are substantially modified to the extent that the interests of the cooperative members would substantially affect the interests of the cooperative members when compared with the resolution of the previous general meeting, it is reasonable to view that even if it is not a modification of the articles of association, the consent should be obtained by applying Article 20(3) and (1)8 of the Urban Improvement Act to protect the interests of the cooperative members by prescribing the requirements for special number of consent (see, e.g., Supreme Court Decision 2010Du13

Second, the contents of the general meeting resolution should not violate superior laws and the articles of incorporation.

Thirdly, once an internal norm is established, members of an association will have the trust that it would continue to exist, barring special circumstances. As such, profits to be achieved through an internal norm amendment should be superior to the interests of the members who trusted the existence of the previous internal norm. In order to determine whether the resolution of a general assembly that amends the internal norm of an association violates the principle of trust protection, on the other hand, the purpose of public interest to be realized through the amendment of the internal norm of an association should be comprehensively compared and balanced (see Supreme Court Decision 2008Du8918, Apr. 23, 2009).

(ii) the facts of recognition

In full view of the respective descriptions of Gap evidence 1, 3, 5 and Eul evidence 18 (including branch numbers for those with branch numbers) and the whole purport of the pleadings, the following facts are recognized:

① With respect to the criteria for the allocation of new shopping mallss and lakes, the instant business agreement requires the shopping mall council to establish a management and disposal plan including 'sale area, sale price, internal design, etc. of the newly constructed shopping malls'. Article 6(2) of the instant business management and disposal plan provides that the floor of the newly constructed shopping malls shall be allocated according to the existing shopping malls, and the number of houses shall be allocated in the order of a higher average of the average of the average of the average of the appraisal values of the existing number of houses calculated by two certified appraisal corporations. However, Article 7(2) of the instant management and disposal plan provides that "the floor of the newly constructed shopping malls shall be given priority to the members of the existing shopping malls, and in the case of the number of houses of the same storys, the right value applying the proportional ratio to the previous appraisal value shall be allocated in the order of higher priority.

(2) As to the standards for distributing settlement money, the instant business agreement and the instant business management and disposition plan for commercial buildings provide that commercial buildings members shall settle the development gains of commercial buildings and the expenses incurred in rebuilding. However, Article 13(5) of the instant management and disposition plan provides that “where there is a settlement money after completion of the business, the settlement money shall be paid to the members at the time of dissolution (based on the announcement of transfer) in proportion to the amount of the previous rights.”

③ With respect to the ‘MD composition of a new shopping mall', the instant business agreement requires the shopping mall council to establish a management and disposal plan including the ‘MD composition of a new shopping mall'. The instant business management and disposal plan of the shopping mall of this case stipulates that the new shopping mall of this case is specified through the drawing of each number of newly constructed shopping malls through the floor plan of each floor. However, the instant management and disposal plan of the shopping mall of this case is adjusted to the shopping mall structure of Article 7 of the instant management and disposal plan, and the location of the members and the general shopping mall of this case, after the deliberation of the board of directors before the approval of the management and disposal plan, shall be adjusted to the MF composition of the new shopping mall of this case, which is finalized after the deliberation of the board of directors before the sale of the commercial mall, and the division of the ownership of the modified association members and the general shopping mall shall be made by the resolution of the board of directors.

④ On December 9, 2014, the instant management and disposition plan was passed by 5,721, among the 6,844 members of the Defendant’s general meeting (5,037, 684 direct voting, and 83.59% of the affirmative votes).

3) Determination

A) Examining the above facts in light of the aforementioned legal principles, the criteria for allocation of the number of newly established family members in the instant management and disposal plan, Article 13 subparag. 5 of the Standards for Distribution of Liquidation Amount, and the elements of the business sector of newly established family members in Article 13 subparag. 8 of the same Act are partly inconsistent with the contents of the independent settlement system of commercial buildings adopted through the resolution of the general meeting of July 15, 2013. Therefore, the resolution of the general meeting of December 9, 2014, which established the instant management and disposal plan, may be deemed to have partially withdrawn or modified the content of the independent settlement system of commercial buildings, which has the internal binding force of the Defendant through the resolution of the general meeting of July 15, 201

B) Furthermore, examining whether the resolution of the general assembly on December 9, 2014, which established the instant management and disposition plan, by the general assembly resolution on December 9, 2014, satisfies the standards for legitimate amendment of the internal norms of the partnership,

First, 5,721 of the total number of 6,844 members approved (the consent rate of 83.59%) and the quorum of 2/3 or more of the members was satisfied. Second, there is no special circumstance to deem that the contents were in violation of superior laws such as the Urban Improvement Act and subordinate statutes or the articles of incorporation.

Finally, comprehensively taking account of the following facts and circumstances acknowledged by Gap's evidence Nos. 21, 24 through 29, Eul's evidence Nos. 6, and the whole purport of the arguments, it is difficult to view the plaintiffs' interest in the existence of an independent settlement system is more superior to the interest they intend to achieve through a change in the independent settlement system of commercial buildings, and thus, it cannot be deemed that the principle of trust protection has been violated.

① Article 17(6) of the Defendant’s articles of incorporation provides that the purpose of the meeting, agenda items, etc. shall be posted on the bulletin board of the association office from 14 days before the general meeting shall be held, and each partner shall send and notify the registered mail seven days before the meeting is held. On June 17, 2013, the commercial council failed to prepare a draft of the business management and disposal plan for at least one year and five months after the conclusion of the instant business agreement. On December 9, 2014, when the general meeting of December 24, 2014, when the instant management and disposal plan was imminent, it notified the Defendant that the instant draft of the business management and disposal plan was resolved at the general meeting of the commercial council and sent the minutes of the said special meeting to the Defendant on November 28, 2014.

In addition, even among the members of a commercial building, the defendant requested the commercial building council to send materials proving that the proposal of the commercial building management and disposal plan of this case, such as the list of participants at the special meeting, written resolution, stenographic records of the special meeting, recording files, etc., in order to verify the propriety of the proposal, but the commercial building management and disposal plan of this case, which exceeds 50%, was established by reflecting the intent of the members of the commercial building, but the commercial council did not take any particular measures. However, the defendant was in a situation that it is impossible for the general meeting to reject the whole of the management and disposal plan, and after setting the outline of the management and disposal plan of the commercial building portion to meet the rebuilding resolution, it was necessary to prepare the plan after consultation with the commercial council,

② Since the Commercial Building Council and the Defendant derived the agreement draft of the management and disposal plan that reflects the intent of the commercial building partners (hereinafter referred to as the “agreement draft”), since the construction of the commercial building is in progress in accordance with the agreement draft following the amendment of design on June 29, 2017, the execution of appraisal on July 15, 2017, and the extraordinary resolution of the Commercial Building Council on July 19, 2017, the profits of the commercial building partners infringed on due to the absence of the contents of the instant management and disposal plan draft of the instant management and disposal plan are not substantially significant.

③ As of December 9, 2014, the Defendant requested the Commercial Building Council to send data related to the extraordinary general meeting of the Commercial Building Council as of November 19, 2014, which was imminent at the ordinary general meeting of the commercial building members, until December 1, 2014. Article 7-2-1 of the instant management and disposal plan of the instant case, the Defendant made efforts to minimize the damages of commercial building members by providing that “No one shall establish a management and disposal plan separate from apartment, and neighboring living facilities shall be sold preferentially to the members of the commercial building, and the remainder of the newly constructed neighborhood living facilities shall be sold to the general public, with preference to the autonomy of the members of the commercial building in the future.”

4) Sub-committee

Therefore, since the instant management and disposition plan was not reflected in the instant management and disposition plan, such circumstance alone alone cannot be deemed unlawful since the instant management and disposition plan was contrary to the independent settlement system.

5. Conclusion

Therefore, the plaintiffs' claims should be dismissed in its entirety due to the lack of reasonable grounds. Since the judgment of the court of first instance is unfair with different conclusions, the part against the defendant among the judgment of the court of first instance which accepted the defendant's appeal and dismissed all the plaintiffs' claims corresponding to the cancellation part

The presiding judge, the whole judge;

Judges Min Il-young

Judges Lee Jae-in