[1] In a case where a council of representatives has to determine a specific matter in the articles of association or a resolution of a general meeting of a reconstruction association through consultation or agreement between a reconstruction association and a specific association member, whether a council of representatives may seek confirmation of invalidity against a reconstruction association by ordering a specific association member's consent in the course of consultation or agreement with a reconstruction association to be "resolution of a general meeting of association members" (negative)

[2] Whether a representative organ of the general meeting of a reconstruction association and the board of representatives, which is the representative organ of the whole association members, can file a lawsuit against the construction corporation and the joint project proprietor (negative)

[3] Whether it is permissible for a reconstruction association to decide matters concerning the ownership, etc. of the right to a commercial building newly built at its articles of association or at its general meeting in such a manner as to be approved by the board of representatives through consultation or agreement between the reconstruction association and the commercial building association members (negative in principle), and the requirements for such permission

[1] The highest decision-making body of the reconstruction association which is a non-corporate body under the Civil Act cannot exist only as a general meeting of the association members, and since it is the basis for several legal relations within and outside of the reconstruction association as a whole by the resolution of the general meeting, it is the most effective and appropriate means to confirm the effect of the resolution itself as res judicata in a case where there is a dispute over the validity of a resolution of the general meeting, and there is a dispute over various legal relations derived from that resolution. However, in a case where the reconstruction association rules or a general meeting resolution of the reconstruction association establishes a specific matter such as the ownership of rights of new buildings through consultation or agreement between the reconstruction association and a specific association member and the representatives' representative body, the expression of consent made by a specific association member as a counter-party to the reconstruction association cannot be deemed as a resolution made by the reconstruction association's decision-making body, and it cannot be deemed as an unlawful resolution against the association member's expression of intent to constitute the most effective and proper means of dispute resolution for the formation of rights and obligations between the reconstruction association and the association members.

[2] A rebuilding association which is a non-corporate association under the Civil Act is a rebuilding association's internal decision-making, and the legal entity is a rebuilding association, so it is subject to confirmation of the validity of the rebuilding resolution against the reconstruction association, but its resolution can remove the risks or apprehensions about the rights or legal status of the members of the reconstruction association due to its resolution. However, it cannot be deemed as an effective and appropriate means for dispute resolution to seek confirmation of invalidity of a resolution made by the board of representatives, which is the authority agency of the general meeting of the reconstruction association and the representative body of the whole members, against the joint project owner and the joint project owner.

[3] In case where a reconstruction association which is not a non-corporate association under the Civil Act alters the contents of a reconstruction resolution, it is necessary to apply Article 47(2) of the Act on the Ownership and Management of Aggregate Buildings, which provides for the quorum at the time of the reconstruction resolution, to make a resolution of not less than 4/5 of its members, and it is not possible to delegate its authority to the association members so that the modification of the rebuilding resolution can be unilaterally decided at the association rules or the general meeting. However, since the reconstruction association consists of apartment association members with different interests and commercial association members, matters concerning the ownership, etc. of rights of the newly-built commercial building shall not be adversely affected by the ownership, etc. of new apartment association members' rights, and it is necessary to reasonably determine whether the matters concerning the ownership, etc. of rights of the newly-built commercial building which are unrelated to their interests by the exercise of voting rights of apartment association members and to make a resolution of not less than 5/10 of the total number of members of the association to the extent that it does not adversely affect the members of the association, and to make an alteration or alteration of the contents of the agreement.

[1] Article 250 of the Civil Procedure Act / [2] Article 250 of the Civil Procedure Act / [3] Article 47 (2) of the Act on Ownership and Management of Condominium Buildings

[2] Supreme Court Decision 90Da14058 delivered on June 25, 1991 (Gong1991, 1998) Supreme Court Decision 96Da6295 delivered on April 12, 1996 (Gong1996Sang, 1538) / [3] Supreme Court Decision 2004Da17924 Delivered on October 26, 2006 (Gong2006Ha, 1957) Supreme Court Decision 2006Da53245 Delivered on February 12, 2009 (Gong209Sang, 309Sang, 309)

Plaintiff 1 and 5 others (Law Firm Gyeong, Attorneys Woo-gn et al., Counsel for the plaintiff-appellant)

Resignation Apartment Reconstruction Association and one other (Law Firm International Law Firm, Attorneys Lee Won-chul et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2007Na17864 decided July 4, 2008

Of the judgment of the court below, the part of the claim for confirmation of invalidity of the resolution of the general meeting for disposition of commercial building on August 24, 2006 against the Defendants is reversed, and this part of the judgment of the court of first instance is revoked, and this part of the lawsuit is dismissed. Of the judgment of the court below, the remaining part of the claim against the Defendant Tran apartment reconstruction association is reversed, and this part of the lawsuit is dismissed. The remaining appeal against the Defendant Resignation apartment reconstruction association is dismissed. The costs of the lawsuit against the part of the reversal against the Defendant Resignation apartment reconstruction association are assessed against the Plaintiffs and the total costs of appeal

1. Determination ex officio on the benefit of a lawsuit

A. The part on confirmation of invalidity of the resolution of the general meeting for commercial building management against the defendant association

(1) In a case where there is an immediate confirmation interest, that is, obtaining a confirmation judgment in order to eliminate risks or apprehensions with respect to the Plaintiff’s rights or legal status, shall be allowed only where it is most effective and appropriate (see, e.g., Supreme Court Decisions 90Da14058, Jun. 25, 1991; 2005Da9463, Apr. 29, 2005).

The highest decision-making body of the reconstruction association, which is a non-corporate body, under the Civil Act, cannot exist only as a general meeting of members, and since it is the basis for several legal relations within and outside of the reconstruction association, which have been decided by the resolution of the general meeting, as a whole by the resolution of the general meeting, and where there is a dispute as to the validity of the resolution of the general meeting and various legal relations derived from that resolution, it can be the most effective and appropriate means to confirm the validity of the resolution itself as res judicata for the principal resolution of the dispute. However, in a case where the representative body of the general meeting, which is a representative body of the association and a specific association members, is to determine the specific matters such as the attribution of rights to new buildings in the rules of the association or the resolution of the general meeting, through consultation or agreement between the reconstruction association and the specific association members, it cannot be deemed that the expression of consent made by the specific association members as a counter-party to the reconstruction association is a resolution of the reconstruction association's decision-making body, and such expression of intent is merely an unlawful means to confirm the resolution against the general association's resolution.

(2) According to the reasoning of the judgment below and the records, the agreement between the defendant 2 and the second apartment reconstruction association (hereinafter "the defendant association") was entered in the 20th council agreement with the defendant 2 and the second 20th council (the second 20th 2nd 2nd 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 2002 6th 6th 6th 2002th 1st 2th 3th 3th 6th 6th 6th 6th 6th 6th 20.

Examining the above facts in light of the legal principles as seen earlier, even if not less than 11 of the members of the defendant association agreed to the new commercial building division proposed by the defendant association on August 24, 2006, it cannot be deemed that the decision-making body of the defendant association is a decision-making body of some commercial building members, and this is only one of the elements constituting the legal requirements necessary for the formation of a relationship of rights and obligations between the defendant association and the commercial building members. Therefore, if the plaintiffs decided to authorize the agreement or agreement on the above commercial building division at the board of representatives as an agent of the general meeting of the defendant association and the representative body of all the members, if they dispute the validity of the resolution of the board of representatives, or if there is a dispute between the plaintiffs and the defendant association as to whether specific relationship of rights and obligations occurred in accordance with the above agreement or consultation on the commercial building division, it is separate from seeking confirmation on the existence of rights and obligations, and it cannot be said to be the most appropriate means to confirm the invalidity of the agreement against the defendant association.

B. The part concerning the construction for the defendant Twin-use

A rebuilding association which is a non-corporate association under the Civil Act is a rebuilding association's internal decision-making, and the legal entity is the subject of such decision-making, so it shall obtain a judgment from the rebuilding association to confirm the validity of the rebuilding resolution, but it may remove the risks or apprehensions about the rights or legal status of the members of the rebuilding association due to such resolution (see Supreme Court Decisions 90Da14058, Jun. 25, 1991; 96Da6295, Apr. 12, 1996, etc.).

The Plaintiffs asserted that the resolution of the board of representatives of the Defendant Union in this case and the new establishment of the store members of the Defendant Union on August 24, 2006, by the resolution of the board of representatives of the Defendant Union in this case and the declaration of consent to the proposed division were unlawful modification of the existing rebuilding resolution of the Defendant Union, and that the resolution of the board of representatives in this case and the declaration of consent to the above agreement were also filed against the Defendant Samsung Construction, a joint project proprietor

However, in light of the legal principles as seen earlier, it cannot be deemed as an effective and appropriate means to seek confirmation of invalidity of a resolution made by the board of representatives, which is the authority of the general meeting of the defendant association and the representative body of all the members of the association, against the construction of the defendant pairs.

In addition, if there is a dispute as to whether a specific relationship of rights and obligations has been formed between the plaintiffs and defendant Tran Construction as to the above commercial building division, it is separate from seeking confirmation of the existence of the relationship of rights and obligations. The filing of a lawsuit seeking confirmation of invalidity with respect to the declaration of consent by one of the elements constituting the legal requirements necessary for the formation of the relationship of rights and obligations cannot be deemed an effective and appropriate means for dispute resolution. Thus, this is also unlawful.

2. Determination on the grounds of appeal against the Defendant Union

A. In case where a reconstruction association which is a non-corporate association under the Civil Act alters the contents of a rebuilding resolution, it is necessary to apply Article 47(2) of the Act on the Ownership and Management of Aggregate Buildings, which provides for the quorum at the time of the rebuilding resolution, to adopt a resolution of 4/5 or more of its members (see, e.g., Supreme Court Decision 2004Da17924, Oct. 26, 2006). It is not possible to delegate its authority to the association’s board of representatives so that the association’s board of representatives can unilaterally make an alteration of the contents of the rebuilding resolution through consultation (see, e.g., Supreme Court Decision 2006Da53245, Feb. 12, 2009). However, it is necessary to ensure that the reconstruction association composed of apartment members whose interests conflict with each other and the members of a non-corporate association may reasonably change the contents of the newly-built apartment building agreement to the extent of attribution of rights of the members of a newly-built commercial building without mutual understanding or consent.

B. According to the reasoning of the judgment below, the court below held that the second agreement can make a resolution to accept it as a general quorum of the board of representatives pursuant to Article 18 subparagraph 5 of the Union Regulations, and that the above legal principles and the records are just and acceptable in light of the above legal principles and the judgment of the court below, and there are no errors in the misapprehension of legal principles as to the authority of the reconstruction association and the resolution of the resolution of the board of representatives as otherwise alleged in the ground of appeal.

3. Conclusion

Therefore, among the judgment of the court below, the part of the claim for confirmation of invalidity of the resolution of the general meeting of commercial building management as of August 24, 2006 and the remaining part of the claim against the Defendants as to the construction for the joint-use. Since this part is sufficient for this court to directly render a judgment, it shall be revoked pursuant to Article 437 of the Civil Procedure Act and dismissed the judgment of the court of first instance as to the claim for confirmation of invalidity of the resolution of the general meeting of commercial building management disposal, and each of the above reversed parts shall be dismissed. The remaining appeal against the Defendant Union shall be dismissed, and the costs of appeal and the appeal shall be assessed against each losing party.

Justices Yang Sung-tae (Presiding Justice)