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(영문) 부산고등법원 2017.08.30 2017누21364
조합설립인가신청반려처분취소
Text

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. The total cost of the lawsuit is resulting from the supplementary participation.

Reasons

1. The reason why the court has used this part of the disposition is as stated in Paragraph (1) of the reasoning of the judgment of the court of first instance. Thus, this part is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Attached Form of relevant Acts and subordinate statutes;

1. The description;

(hereinafter “The Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents” refers to “the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents,” and “the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”

A. The Plaintiff’s assertion 1) The former Enforcement Decree of the Urban Improvement Act (amended by Presidential Decree No. 24007, Jul. 31, 2012; hereinafter “former Enforcement Decree of the Urban Improvement Act”).

In light of the legislative intent of the proviso of Article 28(4) and Article 26(2), even if the articles of association were modified, the owners of a plot of land, etc. shall not be deemed to have withdrawn consent from the establishment of the association, if such amendment is recognized as identical to the previous articles of association. Since the Plaintiff was subject to the amendment of the relevant statutes during the process of demanding a consent to the establishment of the association and partly amended the contents of the articles of association or amended the phrase to reflect the amendment, the modified articles of association shall be deemed to be identical to the previous articles of association and social norms. Nevertheless, the Defendant calculated the ratio of consent by deeming that the withdrawal of consent from the owners of a plot of land, etc. is legitimate only in the form of a modification to the articles of association. In this regard, the instant disposition was unlawful. 2) The Defendant received a written withdrawal of consent from the owners of a plot of land, etc., and notified the Plaintiff of the list

B. Article 28(4) of the Enforcement Decree of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions on the premise of one determination on whether the withdrawal of consent is legitimate

1. As noted, as amended by Presidential Decree No. 2407, Jul. 31, 2012.

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