209Guhap4723 Association Nullification, etc. of Incorporation

The entries in the attached list are as shown in the attached list.

Law Firm International Law Firm

[Defendant-Appellant]

Head of Gangseo-gu Busan Metropolitan City

A litigation performer SouthB

11. District Housing Redevelopment and Improvement Project Cooperatives

The president of the association, the president of the association

Law Firm Jeong-man, Counsel for the plaintiff-appellant

Attorney Lee Jae-soo

April 9, 2010

April 30, 2010

1. All of the plaintiffs' claims are dismissed. 2. Costs of lawsuit are assessed against the plaintiffs.

피고가 2008. 3. 5. ▣1구역주택재개발정비사업조합 설립 추진위원회에 대하여 한 주택재개발정비사업조합 설립 인가처분은 무효임을 확인한다.

1. Details of the disposition;

A. On September 21, 2005, the head of Busan Metropolitan City announced the Busan Metropolitan City’s Urban and Residential Environment Improvement Master Plan by Ordinance No. 2005-267 on Sep. 21, 2005, the head of Busan Metropolitan City announced the Busan Metropolitan City’s Urban and Residential Environment Improvement Master Plan by 116,500 meters (hereinafter “instant improvement tri-dong”). At last, it was confirmed that the calculation of the area was erroneous, and the actual calculation of the owners of lands, etc. was made in accordance with 127,400 square meters, but the actual calculation of the owners of lands, etc. was made in accordance with 127,400 square meters. On September 27, 2006, a certain area was incorporated into a multi-family housing development zone on May 30, 2007, changed to 135,400 square meters as an area to be designated as a housing redevelopment zone as a specific urban and residential environment development zone.

B. On December 15, 2005, 2005, 11, and 7, this B1, the president of the Intervenor Cooperative (hereinafter referred to as the “ Intervenor Cooperative”) filed an application with the Defendant for approval of the establishment of the Committee for Promotion of the Establishment of the Housing Redevelopment Project in Zone 1 (hereinafter referred to as the “instant Promotion Committee”) in order to implement the housing redevelopment project in the project zone designated as the instant rearrangement zone. On December 15, 2005, the Defendant obtained 414 consent (51.04%) from among 811 owners of land, etc. in the instant rearrangement zone, on the ground that he/she obtained 414 consent (51.04%) from among 81 owners of land, etc. in the instant rearrangement zone, he/she shall be 13(2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9047, Mar. 21, 200; hereinafter referred to as the “former Act”).

D. In order to implement a housing redevelopment project for the instant rearrangement zone, the instant promotion committee obtained the consent of 653 owners of the land, etc. in the instant rearrangement zone from among 856 owners of the land, etc. (76.28% of the consent rate) and applied for authorization to establish a housing redevelopment project partnership on December 24, 2007 to the Defendant. The main contents of the instant consent are as follows.

3. Consent to establish an association and improvement projects;

(a) Outline of the design of the new building;

A person shall be appointed.

(b) Estimated amount of the costs for removal and new construction of structures;

A person shall be appointed.

(c) Sharing of expenses under paragraph (2);

(1) impose and collect expenses according to the articles of incorporation of the partnership, and make a provisional settlement at the time of management and disposal, and make a final settlement at the time of liquidation of the partnership;

(2) To assess the value of assets owned by a partner as prescribed by the articles of association and to equally bear and distribute expenses and profits in accordance with the standards for administration and disposal prescribed by the articles of association in accordance with the principle of equity; (3) to be paid to the contractor, the general revenue of housing and accessory and welfare facilities and the share of cooperative members with a resolution or written consent from the general meeting of cooperative members shall be preferentially appropriated; and if any shortage occurs, an equitable share shall be made in accordance with the

(d) Matters concerning the allotment of sectional ownership of the newly constructed building;

(1) The management and disposal standards of the articles of association shall apply, and the determination of the number of articles of association shall be based on the computerized lottery pursuant to the provisions of Article 53 of the articles of association; however, where there exists competition, it shall be in accordance with the standards for

(2) The area of housing, etc. to be sold after the implementation of the project shall be based on the area of sale (exclusive + public area), and the site shall be sold in co-ownership in proportion to the area of housing, etc. sold in lots.

(3) The remaining housing and commercial buildings and other welfare facilities remaining after the sale to the association members first are sold to the general public as stipulated by the relevant statutes and the articles of association.

(4) Land shall be registered after the completion of the project, and the building shall be registered for each conservation of the occupant members.

7. Details of consent;

As above, I agree to the establishment of an association under Article 16 (1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, as owners of lands, etc. within a zone 1 housing redevelopment improvement project zone, after being aware of and consenting to the matters referred to in subparagraphs 3 through 6, and agree to establish an association under Article 16 (1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents. In addition, I agree to the alteration of the contents of the association establishment and improvement project according to the contents of the project implementation authorization, the contents of the contract with the contractor, etc., and the details determined at the general meeting

E. On March 5, 2008, the defendant decided that the promotion committee met the quorum necessary for establishing the association and approved the establishment of the intervenor association (hereinafter referred to as the "authorization disposition of this case").

[Reasons for Recognition] Facts without dispute, Gap evidence 2 and 3, Gap evidence 5-1, 2, Gap evidence 6, 7, Eul evidence 6, Eul evidence 6, Eul evidence 12, Eul evidence 9 to 12, Eul evidence 1, 2, Eul evidence 6, 17, Eul evidence 16 and 19, each entry and form of Eul evidence 16 and 19, the purport of the whole pleadings

2. Whether the authorization disposition of this case is legitimate

A. The plaintiffs' assertion

The plaintiffs asserts that the disposition of this case's authorization is null and void as there are significant and apparent defects as asserted below.

1) The instant approval disposition issued by the Defendant is null and void since it falls short of the consent requirements of at least 3/4 of the owners of land, etc. required under the former Urban Improvement Act, unless there exist defects among written consents submitted by the Promotion Committee at the time of applying for the establishment of the Intervenor Association:

A) At the time of applying for establishment of an association with a non-owner’s consent, the consent submitted by the grandchildren 1, who is the former owner, is null and void since the owner of the land and the building located in Busan Seo-gu trigrams and the owner of the

B) There is a difference between the difference between the seal affixed to some written consent and the seal imprint attached to the seal imprint attached thereto, and the seal imprint attached to the written consent submitted by thisC3.

C) At the time of applying for the establishment of a certain certificate of personal seal impression ex post, the C4 and Kim C5 submitted a written consent without attaching a certificate of personal seal impression.

라) 대표자 자격 소명 누락▣협화노인회, 경로당의 경우 대표자의 자격을 확인할 수 있는 자료가 누락되어 있다.

E) A certificate of personal seal impression attached to a written consent to establish association, which was issued prior to the designation and public announcement of the instant rearrangement zone, should have been issued after September 19, 2007, which was the date of designation and public announcement of the instant rearrangement zone, was submitted most of the certificates issued prior thereto.

F) The written consent submitted by 507 persons, such as the date of drawing up the written consent is not written by the date of drawing up the consent.

2) According to Article 16(1) of the former Urban Improvement Act and Article 26(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 20947 of July 29, 2008), when a housing redevelopment project association is to be established, the consent of the owner of the land shall be obtained with the consent of the owner of the land, such as ① outline of the building to be built, ② outline of expenses to be incurred in the removal and new construction of the building, ③ matters concerning the cost sharing. Since matters concerning the building to be constructed are important parts that form a basis for determining whether to participate in the redevelopment project, the usage rate should be specified in the design outline of the building to be constructed, and the matters concerning the cost sharing should be stipulated to the extent that the cost sharing should not be agreed again at the stage of the implementation of the redevelopment project, or the cost sharing should be determined to the extent that it can be predicted at least. However, since the floor area ratio of the consent of this case is very abstract and abstract, the approval disposition of this case is null and void.

3) The approval for establishment of the committee for promotion of the head of Si/Gun, which is conducted after a rearrangement zone for an urban environment improvement project becomes final and conclusive, is null and void. The committee for promotion of this case is established before a rearrangement zone is designated and announced, and the approval for establishment of the committee is null and void. This case’s approval for establishment of the intervenor association is also null and void upon the application of the committee for promotion that becomes null and void.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Determination on the first argument

A) Determination as to the assertion that non-owner gave consent

Article 28 (1) 3 of the former Enforcement Decree of the Urban Improvement Act provides that a person who acquires land or a building from a person who has consented to the establishment of an association shall be deemed to have consented to the establishment of the association. Article 28 (4) of the same Act provides that the owner of the land, etc. may withdraw consent or express his/her opposing opinion before the application for approval is filed. Thus, it is reasonable to deem that the person who acquired real estate from a person who has consented to

According to the statements in Gap evidence No. 8-1 to No. 4, the handC1's written consent to the establishment of the intervenor's association around 2006. The handC1's consent is valid on October 1, 2007, as there is no evidence to acknowledge that tinC withdrawn the consent or declared opposing intent by tinC, since tinC1's consent to the establishment of the intervenor's association was no longer effective. Accordingly, this part of the plaintiffs' assertion is without merit.

B) Determination as to the assertion that the seal imprinted and the seal imprint attached to a certain written consent are different.

In principle, where the stamp image on a written consent differs from the stamp image on the written consent, it shall not be included in the number of consenters. However, it shall be determined whether the stamp image on the written consent is identical with that on the written consent, and it shall not be required that the competent authority, who has the authority to authorize, have the competent authority undergo an appraisal by a specialized appraisal agency about the conformity.

In comparison with each 1, 2 of the evidence Nos. 9 and 10 of this case, since each written consent of this C2 and 3 of thisC appears to be similar to the seal on the certificate of the personal seal impression, it cannot be deemed that the approval disposition of this case was defective on the ground that this is included in the number of consenters. Accordingly, the plaintiffs' assertion on this part is without merit.

C) Determination as to the assertion that some certificates of personal seal impression were submitted ex post facto

Article 11 and 12 of the Evidence Nos. 11 and 12 of the Act provides that the issuance date of the certificate of the seal impression Nos. 11 and 12 submitted to the Defendant after the application for the establishment of the association of this case is recognized as the fact that all the issuance date of the certificate of the seal impression No. 34 and KimC5 submitted to the Defendant is after the application for the establishment of the association of this case, but the submission date of the certificate is not restricted under the legal provisions different from the withdrawal date of consent, and the private person's act is deemed to be possible to be freely revised until the administrative act is conducted, unless it is clearly prohibited or impossible due to its nature (see Supreme Court Decision 9Du5566, Jun. 15, 201). Thus, it cannot be deemed that the above two persons who supplemented and submitted the certificate of the seal impression before the approval disposition of this case after the application for the establishment of the association of this case were calculated as the number of the owners of land, etc. at the time of the approval disposition of this case

살피건대, 갑 제13호증, 갑 제14호증의 1 내지 4, 을나 제7호증, 을나 제8호증의 1, 2의 각 기재에 변론전체의 취지를 종합하면, 김C7은 2002. 1. 15.부터 2007. 12. 16.까지 ▣협화노인회의 대표자였고, 김C8은 2007. 2. 15.부터 2009. 3. 13.까지 경로당의 대표자였으며 이는 주변 사람들에게 널리 알려진 사실, 이 사건 추진위원회 설립 동의서의 동의 자란에 협화노인회장 김C7 다음에 직인이 찍혀 있고, 경로당 다음에 김C8 인감이 찍혀 있는 사실이 인정되는바, 위 인정사실에 관계 법령에 의하더라도 조합설립 추진위 설립 동의서와 관련하여 토지등소유자가 단체일 경우 대표자의 자격을 서면으로 소명할 것을 요구하는 조항이 없는 점을 종합하면, 협화노인회 및 이경로당 명의의 각 동의서를 무효로 볼 것은 아니다[위 각 동의서를 무효로 보더라도, 856명 중 651명(76.05%)이 동의한 것으로 되어 조합설립 동의 요건을 충족하는 데는 아무런 지장이 없다). 따라서 원고들의 이 부분 주장도 이유 없다.

E) Determination on the assertion that the certificate of seal impression issued before the designation and public notice of the improvement zone was submitted

According to Article 28(4) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the consent of owners of land, etc. (including withdrawal of consent) shall be made by means of written consent using a certificate of seal impression, and in such cases, attached a certificate of seal impression. Article 7(1)3 of the former Enforcement Rule of the Act provides for the documents to be submitted at the time of applying for authorization to establish an association to certify the details of consent and the documents to prove the matters of consent. As can be seen, requiring the submission of written consent by the owners of land, etc. to attach a certificate of seal impression to the documents proving the matters of consent is to clarify whether the certificate of seal imprint affixed to the written consent was consented to the owner of land, etc. by means of verifying whether the certificate of seal imprint affixed to the written consent is consistent with the seal imprint’s seal imprint’s seal imprint’s seal imprint’s certificate. Therefore, the Plaintiffs’ assertion

The purport of the Act on the Maintenance of Urban Areas and Dwelling Conditions for requesting the written consent of the owners of land, etc. to establish a development cooperative and the submission of such written consent to the competent administrative agency at the time of applying for authorization to establish a redevelopment cooperative is to prevent disputes among the related persons who may arise with regard to the consent by clarifying the consent of the owners of land, etc., and further, to prevent the administrative agency from taking administrative power unnecessary to confirm whether the consent is given by examining whether the consent requirements are met only with the consent submitted at the time of applying for authorization to establish a redevelopment cooperative. In light of such purport, inasmuch as the authenticity of the intent of the owners of land, etc. is guaranteed by the certificate of personal seal impression attached thereto, the written consent cannot be deemed null and void

2) Determination on the second argument

According to Article 16 (1) of the former Act and Article 26 (1) of the Enforcement Decree of the same Act, when the committee for promotion of housing redevelopment projects intends to establish an association, the owner of land, etc. shall obtain consent from the owner of the land, etc. (1) a summary of the design of the building to be built from the owner of the land, (2) a summary of expenses incurred in removal and construction of the building, (2) a apportionment of expenses incurred in the above paragraph (2), (4) an apportionment of ownership after the completion of the project, (5) an agreement stating the articles of association of the association, and Article 12 (1) 6 of the former Ordinance on the Maintenance of Urban and Residential Environment (amended by Ordinance No. 4267 of May 7, 2008), the written consent of the owner of the land, etc. shall be in the form of the written consent of the management regulations for the establishment of the committee for promotion of the association, and according to the written evidence No. 3, the written consent can be recognized by the Minister of Construction and Transportation (former Minister of Land, Transport) a written consent.

First, examining the “design outline of a new building” among the contents of the standard written consent, the design outline of a new building on the standard written consent is required to state the site area (area, total floor area, size, and other items, but does not specify the site rate of a new building. Therefore, it cannot be readily concluded that it is unlawful solely on the ground that the land owner did not separately indicate the site rate of a new building in the instant written consent, and even if it is unlawful, the remaining part of the written consent of this case stated in the letter of consent of this case can expect the design outline of a new building, and it cannot be said that the defect is serious or clear.

Next, when examining the "matters concerning the apportionment of expenses" and the "matters concerning the attribution of ownership after the completion of the project", the committee of promoters generally determines the outline of design of the building to be constructed, the amount of expenses to be incurred in removing and constructing the building structures to be built, and the cost-sharing of expenses and profits to be borne equally according to the principle of equity in accordance with the management and disposal standards by assessing the value of the assets owned by the association as prescribed by the articles of association, but the construction cost and all expenses related to the project to be paid to the contractor shall be preferentially appropriated for the general revenue of the housing and welfare facilities and for the cooperative members' contributions which are resolved or agreed at the general meeting of the association members, and if the shortage occurs, they shall be apportioned equally in accordance with the standards for management and disposal of the articles of association of the association. After the completion of the project in this case, the determination of the ownership after the completion of the project in this case shall be based on computerized lots, etc., and the size of the building site after the implementation of the project in this case shall be divided into co-owned shares in accordance with the size of the housing, and the remaining shares.

Therefore, the second argument of the plaintiffs on the premise that the use rate of a newly constructed building was omitted in the consent form of this case or that the bearing of cost was very abstract and thus illegal is without merit.

3) Judgment on the third argument

A) In full view of the provisions of Article 2 Subparag. 9(a), Articles 4(1) and (2), 13(1) and (2) of the former Act, it is clear that the scope of “owner of land, etc.” should be determined on the premise of the establishment of a committee for establishing an association for various rearrangement projects under the Urban Improvement Act, such as housing redevelopment projects, and that the designation and announcement of the rearrangement zone by the Special Metropolitan City Mayor, Metropolitan City Mayor, or Do governor should be prior to determining the scope of owners of land, etc.

On December 30, 2002, the system of the association establishment promotion committee prescribed by the Urban Improvement Act was introduced to facilitate the implementation of the rearrangement project by granting a certain legal framework to the project promotion committee, etc., which had not been legally regulated even if there are many legal problems while frequently formed at the early stage of the rearrangement project, prior to the enactment of the same Act. Accordingly, the promotion committee has the right to apply for authorization for the establishment of a partnership (Article 16(1) and (2) of the former Urban Improvement Act), the rights and obligations related to the duties performed by the promotion committee are comprehensively succeeded to an association (Article 15(4) of the former Urban Improvement Act), the owners of land, etc. in the rearrangement zone naturally becomes the members of the association (Article 19(1) of the former Urban Improvement Act), and further, according to the purport of Article 13(1) and (2) of the former Urban Improvement Act, recognizes the special legal status of the promotion committee, etc., which should not be approved more than one rearrangement zone.

B) As to the instant case, the Defendant approved the instant promotion committee on December 15, 2005, and the head of Busan Metropolitan City thereafter designated and publicly notified the instant improvement zone on September 19, 2007, as seen earlier, there are significant defects in the Defendant’s approval for establishment of the promotion committee of this case, which was conducted before the designation and public notice of the improvement zone.

However, even if there is an obvious defect in the defendant's establishment approval plan of this case without the designation and public notice of the improvement zone, it is clear that there is a defect in the establishment approval of the promotion committee of this case. ① there is no explicit provision on the time of establishment of the promotion committee under the former Urban Improvement Act, but ② there is a new provision on the organization of the promotion committee after the public notice of the improvement zone under Article 13(2) of the former Urban Improvement Act, which is amended by Act No. 944 of February 6, 2009. ② Under Articles 3 and 4 of the former Urban Improvement Act, the head of the Si/Gun/autonomous Gu is obliged to establish the improvement plan within the extent consistent with the basic plan, and the outline of the designation of the promotion committee under Article 20 of the former Urban Improvement Act can be seen as being legitimate in light of the fact that the promotion committee of this case's development project was established and public notice on Sep. 21, 2005.

Therefore, the third argument of the plaintiffs is without merit.

3. Conclusion

Therefore, the plaintiffs' claims are dismissed in entirety as it is without merit. It is so decided as per Disposition.

The presiding judge, judge and associate judge;

Judges' Quota

Judges Choi Young-chul