Attached List of Plaintiffs (Law Firm Park & Kim, Attorneys Park Dong-young et al., Counsel for the plaintiff-appellant)

Substitute 2-2 District Housing Reconstruction and Improvement Project Association (Attorney Kim Sung-sung, Counsel for defendant-appellant)

March 19, 2014

1. On March 21, 2012, the part of the management and disposition plan approved by the head of the Daegu Metropolitan City, including estimated values, shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

In electively, it is confirmed that paragraph (1) of the disposition or the Defendant’s entry in the list, such as estimated amounts, etc., in the management and disposal plan approved by the head of the Daegu Metropolitan City on March 21, 2012, is invalid.

1. Basic facts

A. Establishment of the defendant and the status of the plaintiffs

The defendant was established pursuant to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the "Urban Improvement Act") to carry out the housing reconstruction project (hereinafter referred to as the "the project in this case") of the Daegu Jung-gu in 2004 and 459 lots of land, and the housing reconstruction and improvement project association established pursuant to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the "Urban Improvement Act"), and obtained authorization for the establishment from the head of the Gu in Daegu Metropolitan City on December 24 of the same year, and the plaintiffs are the owners of land and buildings within the project in this case and are in the position

(b) Original project implementation authorization and management plan;

1) On June 13, 2005, the defendant received the authorization from the head of the Gu to implement the first project implementation plan of the project of this case (hereinafter referred to as "authorization for the first project implementation of the project of this case"), and from September 21 to October 21 of the same year, he received the application for parcelling-out concerning multi-family housing, etc. newly constructed as the project of this case from the members of the association (hereinafter referred to as "first application for parcelling-out"), and extended the period of parcelling-out on two occasions by April 10, 2006. The plaintiffs 20, 21, and 22 among the plaintiffs, filed an application for parcelling-out during the above period, and the rest of the plaintiffs (hereinafter referred to as "the plaintiffs") did not apply for parcelling-out.

2) At an ordinary general meeting held on March 9, 2006, the Defendant passed a resolution on the method of calculating the amount of a right, which derives from the formula of the amount of physical compensation for union members, as “(i.e., (i) development gains x site area + appraised value).” This is not reflected in the existing value of real estate in the instant project district but calculated the amount of a right in proportion to the area of the land only

3) On June 9, 2006, the Defendant approved and resolved the amount of the rights of union members calculated by specifying the expected development gains as KRW 900,000 per square year at the management and disposal general meeting. On July 13, 2006, the Defendant submitted a management and disposal plan including the above contents to the head of the Gu and filed an application for authorization, but received a delay notice on the grounds that it violates the equity among union members.

4) On September 28, 2006, the Defendant changed the right to apply the following proportional rates to the method of calculating the amount, and then passed a resolution on a management and disposition plan applying a proportional rate of 1.24 (hereinafter “the original management and disposition plan”) excluding the union members who did not apply for parcelling-out during the period of the first application for parcelling-out, and the head of the Gu approved it on December 27, 2006.

The amount of the right of ○○○ in the head of the voting district shall be calculated by calculating the amount of the right: X proportional ratio: the appraised value of the previous assets of the union members (total revenue - total project cost) / the total appraised value of the previous assets of the union members * the appraised value of the union members - the total appraised value of the union members * the appraised value of the union members 4.5 million won, shall be appropriated from the reserve only for the shortage. The requirement of appropriation shall be limited

C. Appraisal of previous assets and authorization for the modification of the first and second project implementation.

1) On May 4, 2006, the Hoil Appraisal Corporation: (a) assessed the appraisal value of 36,770 square meters in size of land as of June 13, 2005, as of June 13, 2005, 43,362,317,65 won in appraisal value; (b) assessed the value of 23,126.30 square meters in size of a building; and (c) assessed the total of 51,165,01,715 won in appraisal value; (b) assessed the appraisal value of 43,814,980,650 won in value as of the date of authorization for the implementation of the project; and (c) prepared and submitted the appraisal report that assessed the same land to the Defendant as of the date of authorization for the implementation of the project; (d) around that time, the appraisal report assessed the appraisal value of 7,60,634,350 won in total as of the appraisal value, 51,475,615,000 won (hereinafter referred to “the first appraisal”).

2) Pursuant to Article 48(6) and (5) of the Act on the Public Notice of Values and Appraisal of Real Estate Act, the Defendant calculated the price of the previous land and buildings subject to sale (hereinafter “previous assets”) by calculating the arithmetic mean of the original appraised values assessed by two appraisal business entities under the Act on the Public Notice of Values and Appraisal of Real Estate on the basis of the date the initial public notice of

3) On the other hand, with respect to the first project implementation plan, the authorization of the first project implementation was made on July 1, 2008 and the authorization of the second project implementation on July 21, 201 respectively as follows.

2. 1. 2. 1. 2. 4. 2. 4. 4. 1. 2. 4. 1. 1. 5 4. 2. 1. 5 2. 42. 1. 5 2. 42. 1. 6 4. 2. 1. 5 2. 5 42. 1. 5 2. 46 4. 1.2. 96 4.2. 42. 1.2.2.2, 9,632. 9,632. 1. 46 4.2. 1. 96 m2. 97 m2. 1. 45 m2. 97 m2. 97 m2. 465 m2,0000 m2,000,0000 m2. 97 m268. 17.28 m26

D. Progress of the previous lawsuit

1) The progress of the first lawsuit

The 34 persons including Plaintiffs 19, 9, 22, 20, 20, 1, 21, and 3 (hereinafter “Plaintiffs 19, etc.”) filed a lawsuit seeking confirmation of invalidity of the part of “where a partner’s right value is less than 4.5 million won, it shall be appropriated from the reserve fund only for the shortage amount” among the contents of the special general meeting resolution on October 27, 2006 against the Defendant on September 28, 2006 (Seoul District Court 2006Da15964, Daegu District Court 206No. 15964). However, the above court dismissed the lawsuit on February 19, 208 on the ground that there is no legal interest in the lawsuit, including Plaintiff 3, a person subject to cash settlement not applying for parcelling-out on February 19, 200, on the ground that five claims including Plaintiff 22, who is the applicants for parcelling-out, constitute a violation of the principle of equity.”

2) The progress of the second lawsuit

A) The Defendant filed a lawsuit seeking the implementation and delivery of the procedure for registration of ownership transfer against the persons subject to cash liquidation (including the Plaintiffs in the form of money) who did not apply for the first application for parcelling-out (Seoul District Court 2008Gahap3880). On September 16, 2009, the above court rendered a ruling dismissing all the Defendant’s claim for the principal lawsuit. The appellate court (Seoul High Court 2009Na8186) made a decision in lieu of conciliation (Evidence 12) from May 31, 2011, and the above decision became final and conclusive (hereinafter “instant conciliation”).

1. A. The defendant recognizes that the plaintiffs are members of the association from the time of establishment of the association. (2) If the relevant administrative authority, such as the head of Daegu Jung-gu, does not recognize the plaintiffs' membership status, the plaintiffs and the defendant shall take necessary measures so that they do not affect the plaintiffs' membership status. If it is inevitably necessary, the plaintiffs shall join the association, and the defendant shall accept it, and the plaintiffs shall not discriminate against other members. (2) The defendant shall implement new procedures for parcelling-out according to the resolution of the general meeting of November 27, 2010, and the defendant shall not object to the plaintiffs, and the defendant shall not object to the procedure for parcelling-out registration as above, and the defendant shall not object to the plaintiffs. However, the defendant shall execute the procedure for parcelling-out registration as to the above real estate under the condition that the new procedures for parcelling-out registration of the plaintiffs are to be completed within 0 days from the date of expiration of each of the sale in lots, and shall ensure that the new sale in lots and the sale in lots are to be executed within 4 days from the expiration date of each of sale.

B) According to the instant conciliation, the Defendant changed the purport that he/she grants the status of an association member again to the Plaintiffs who did not apply for parcelling-out on September 15, 201, and received the application for parcelling-out by October 21, 201 after publicly announcing the application for parcelling-out on September 19, 201 (hereinafter “second application for parcelling-out”). The rest of the Plaintiffs who did not apply for parcelling-out at the time of the first application for parcelling-out shall also apply for parcelling-out in the second application for parcelling-out.

E. Approval, announcement, etc. of management and disposition plans

1) On January 18, 2012, the Defendant passed a resolution on the amendment of the management and disposition plan reflecting the details of the amendment of the 1, 2, and the recovery of some union members’ status, etc. at the special meeting held on January 18, 2012, and the head of the Gu approved the amendment of the above management and disposition plan on March 21, 2012 and publicly notified the amendment on March 30, 201 (hereinafter “the amended management

2) Details different from the original management and disposition plan of this case are as follows, and the amended part concerning the construction, such as the building area, floor area ratio, housing size, etc., are the same as the details of the second project implementation plan, and the attached list, such as estimated amounts, etc. (hereinafter “the instant estimated amounts, etc.”) was prepared based on the original appraisal as in the original management and disposition plan.

본문내 포함된 표 당초 관리처분계획(갑 제21호증의 26, 38, 48) 이 사건 관리처분계획(갑 제22호증의 2, 11, 15) 사업개요 1. 정비구역 면적: 49,631㎡((주소 1 생략) 외 459필지) 1. 정비구역 면적: 49,614㎡((주소 2 생략) 외 465필지) 2. 건축면적: 8,051.99㎡ 2. 건축면적: 8,514.31㎡ 3. 건축연면적: 166,992㎡ 3. 건축연면적: 171,689.72㎡ 4. 건폐율: 16.81% 4. 건폐율: 17.78% 5. 용적률: 272.37% 5. 용적률: 264.84% 6. 주택규모: 지상 32층 지하 2층 아파트 12개동 998세대 및 부대복리시설 6. 주택규모: 지상 34층 지하 2층 아파트 13개동 1,147세대 및 부대복리시설 -59.9566㎡(59A) 125세대 -30.57평형 152세대 59.9385㎡(59B) 119세대 33.74평형 353세대 59.8582㎡(59C) 62세대 37.99평형 100세대 84.9235㎡(84A) 188세대 43.92평형 196세대 84.8382㎡(84B) 362세대 43.55평형 27세대 84.8382㎡(84C) 197세대 47.73평형 170세대 96.4815㎡(96) 94세대 평가액 또는 추산액 시행 전: 37,245,495,175원 시행 전: 58,573,920,475원 시행 후: 51,855,000,000원 시행 후: 308,750,000,000원 자금운용 총소요사업비 233,871,106,000원 총소요사업비 268,945,821,214원 수입추산액 280,055,520,000원 수입추산액 308,750,000,000원 분양신청자수 272명(상가 4명 포함) 266명(상가 23명 포함) 주택분양가 1. 조합원 분양가 1. 조합원 분양가 59.9566㎡(59A): 평당 7,100,000원 30.57평형: 평당 4,500,000원 59.9385㎡(59B): 평당 7,100,000원 33.74평형: 평당 5,400,000원 59.8582㎡(59C): 평당 7,100,000원 37.99평형: 평당 6,200,000원 84.9235㎡(84A): 평당 7,200,000원 43.92평형: 평당 6,400,000원 84.8382㎡(84B): 평당 7,200,000원 43.55평형: 평당 6,400,000원 84.8382㎡(84C): 평당 7,200,000원 47.73평형: 평당 6,600,000원 96.4815㎡(96): 평당 7,200,000원 2. 일반 분양가 2. 일반 분양가 30.57평형: 평당 6,700,000원 59.9566㎡(59A): 평당 8,120,000원 33.74평형: 평당 7,200,000원 59.9385㎡(59B): 평당 8,120,000원 37.99평형: 평당 7,700,000원 59.8582㎡(59C): 평당 8,120,000원 43.92평형: 평당 7,900,000원 84.9235㎡(84A): 평당 8,220,000원 43.55평형: 평당 7,900,000원 84.8382㎡(84B): 평당 8,220,000원 47.73평형: 평당 8,100,000원 84.8382㎡(84C): 평당 8,220,000원 96.4815㎡(96): 평당 8,220,000원 상가분양가 1. 조합원 분양가 지하 1층: 평당 6,199,669원 지상 1층: 평당 13,610,248원 조합원 분양가 지상 2층: 평당 6,507,438원 지상 1층: 평당 13,000,000원 지상 3층: 평당 5,411,240원 지상 2층: 평당 7,000,000원 2. 일반 분양가 지상 3층: 평당 5,000,000원 지하 1층: 평당 7,183,082원 지상 1층: 평당 15,770,568원 지상 2층: 평당 7,539,977원 지상 3층: 평당 6,269,988원 권리가액산정방법 ○ 비례율 방식 ○ 비례율 방식 ○ 비례율 = (총수입추산액 - 총지출추산액) / (분양신청한 토지등소유자의 토지 또는 건축물 감정평가액) ○ 비례율 = (총수입추산액 - 총지출추산액) / (분양신청한 토지등소유자의 토지 또는 건축물 감정평가액) ○ 조합원 권리가액이 450만 원(평당) 미만인 경우는 부족금에 한하여 예비비에서 충당한다. 단, 충당 요건은 건축물 및 그 부속 토지에 한한다. ○ 비례율: 103.11% ○ 비례율: 124% = [308,750,000,000원(총수입추산액) - 268,945,821,214원(총지출추산액)] / 38,603,546,900원(분양신청한 토지등소유자의 토지 또는 건축물 감정평가액) = [280,055,520,000원(총수입추산액) - 233,871,106,000원(총지출추산액)] / 37,245,495,175원(분양신청한 토지등소유자의 토지 또는 건축물 감정평가액) ※ 당초 관리처분계획 중 조합원 권리가액이 450만 원 미만인 경우에 예비비에서 충당하기로 한 부분은 삭제되었음

[Ground of recognition] The fact that there is no dispute, Gap's statements, Gap's 1 through 3, 5 through 7, 12, 14 through 24, 28, 29, Eul's 2 through 11 (including each number), the result of each fact inquiry into the corporation A's appraisal corporation and the company B's 33 appraisal corporation, and the company B's 33 appraisal corporation, the purport of the whole pleadings

2. Determination on this safety defense

A. The defendant's assertion

1) Since the judgment dismissing the claim on the ground that the plaintiff 19 et al. rejected the lawsuit against the defendant on the ground that it is a person subject to cash settlement or that there is a defect leading to the degree of invalidity of the resolution, the lawsuit of this case by the plaintiff 19 et al. is unlawful against the res judicata of the final judgment in this case.

2) The remaining plaintiffs concluded the adjustment of this case between the defendant and the defendant in the second lawsuit that "the defendant, instead of recognizing the status of a member from the defendant, does not raise an objection to the procedure for application for parcelling-out under the same conditions as the existing members," and thus, the remaining plaintiffs' lawsuits are unlawful against the validity of

3) The content of the instant management and disposition plan, which is recognized as legitimate in the final and conclusive judgment of this case, is identical to the part of the previous management and disposition plan that “the value of the right is less than 4.5 million won per square year, appropriated for reserve funds.” In particular, “the appraised value of the previous land and buildings,” which the Plaintiffs seek nullification or revocation in the instant lawsuit, is calculated by averaging the original appraisal result, and is identical to that of the previous management and disposition plan. Therefore, it is unlawful to seek nullification or revocation of the instant management and disposition plan on the ground that there is an objection to the previous asset evaluation without changing the content of the original management and disposition plan

B. Determination

1) Determination on the first argument

Since res judicata of a judgment of revocation only affects the judgment on the existence or absence of illegality of an administrative disposition which has become a subject matter of a lawsuit, if the previous and subsequent suit differ in the subject matter of a lawsuit, res judicata of the final and conclusive judgment in the previous suit does not extend to the subsequent suit (see Supreme Court Decision 95Nu5820, Apr. 26, 1996, etc.).

In the first lawsuit against the defendant on September 28, 2006, the plaintiff 19 et al. sought confirmation of invalidity of the part of the management and disposal plan of this case approved by the head of Daegu Metropolitan City on March 21, 2012 that "if a partner's right is less than 4.5 million won, it shall be appropriated from the reserve fund only for the shortage." The plaintiffs seek confirmation or revocation of invalidity of the part of the estimated amount, etc. of this case among the management and disposal plan of this case approved by the head of the Gu of Daegu Metropolitan City on September 21, 2012 is obvious in the records. According to the above facts, the subject matter of the final judgment of this case and the subject matter of the lawsuit of this case filed by the plaintiffs are different from the subject matter of the lawsuit of this case, and thus the res judicata effect of the final judgment of this case does not affect the lawsuit

2) Judgment on the second argument

A conciliation is established upon entering the matters agreed between the parties in the conciliation protocol, which has the same effect as a final and conclusive judgment, such as a protocol of judicial conciliation, and thus has the same effect as that of a final and conclusive judgment. If conciliation is concluded between the parties, the relationship of rights and obligations based on the previous disputing legal relationship is extinguished and a new relationship of rights and obligations is established. The same effect as that of a final and conclusive judgment recognized in the conciliation protocol extends only to the judgment on the existence or absence of a new relationship of rights and obligations arising from the content of conciliation. As such, in a case where the conciliation is brought before the conciliation and the conciliation is concluded, unless there are special circumstances, it shall be recognized that the relationship of rights and obligations is specific in the conciliation clause or is entered additionally after the claim is indicated in the conciliation protocol (see Supreme Court Decisions 2006Da37304, Jan. 10, 2008; 2009Da9103, Sep. 8, 2011).

The following circumstances revealed by the above facts: ① the management and disposal plan of this case or, in particular, there is no content about the estimated amount of this case among the provisions or claims of the mediation protocol of this case or the management and disposal plan of this case; ② the purport of the second lawsuit filed by the defendant is the execution of the ownership transfer registration registration on the ground of sale and purchase against the plaintiffs and the delivery of the pertinent real estate; ③ the mediation clause of this case stated as follows: “The plaintiffs do not raise an objection to the procedure for the application for parcelling-out under the same conditions as the existing union members; ④ the defendant's initial management and disposal plan of this case after the mediation of this case has been modified to the management and disposal plan of this case on March 21, 2012; ⑤ the alteration of the management and disposal plan of this case, unlike the initial management and disposal plan of this case, the plaintiffs cannot dispute the alteration of the management and disposal plan of this case's purport of this case, including the alteration of the management and disposal plan of this case's purport of this case's contents, and there is no reason to dispute over the changes in the management plan of this case's purport.

3) Judgment on the third argument

In light of the following circumstances, ① the subject matter of the final judgment of this case and the subject matter of the lawsuit of this case filed by the plaintiffs are different and thus res judicata effect of the final judgment of this case does not extend to the lawsuit of this case; ② the part of the previous management and disposition plan of this case, in addition to the part where the right value does not reach 4.5 million won per ordinary party, is appropriated to the reserve fund, there is a substantial difference in the contents of the previous management and disposition plan of this case; ③ all of the previous management and disposition plan of this case calculated the estimated amount of this case based on the initial appraisal, but there is a substantial difference in the amount; ④ all of the contents of the previous management and disposition plan of this case and the management and disposition plan of this case are substantially identical based on the initial appraisal as alleged by the defendant; ④ such a reason is considered as a matter to be considered at the time of determining the propriety of the plaintiffs' claims, and if it becomes null and void due to illegality, it would directly affect the plaintiffs' rights and obligations as the owner of this case who applied for parcelling-out.

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

A. The plaintiff's assertion

The part of the instant management and disposition plan, including the estimated amount of this case, should be invalidated or revoked on the following grounds.

1) The first project implementation authorization on June 13, 2005, the first project implementation authorization on July 1, 2008, and the second project implementation authorization on July 21, 201. However, the project implementation period of the instant project was the first project implementation authorization on December 20, 204 from December 20 to December 20, 2007; the first project implementation authorization on December 20, 2004 from December 20 to April 20, 20, 2009; the second project implementation authorization on April 11, 201 to April 11, 2016, and the first project implementation authorization on July 21, 201 was established on the basis of the first project implementation authorization on the first project implementation authorization on December 20, 2004; the first project implementation authorization on December 20, 2015, which was the first project implementation authorization on the second project implementation authorization on the basis of the second project implementation authorization on the second project implementation authorization on the 20th project implementation date.

2) Article 9 of the Evaluation Guidelines for Housing Redevelopment and Reconstruction Project (hereinafter “Evaluation Guidelines”) provides that the development gains from the previous project shall be excluded from the evaluation of assets. The proportional ratio from the distribution method of development gains is calculated by dividing development gains (i.e., gross income after the completion of a rearrangement project - total project cost) into the total value of previous assets. In allocating development gains, the allocation of development gains to the equity ratio including the land price increase due to expected gains from the project is inconsistent with this value. In the case of internal land, the appraisal has been made at the price of 2.25 times the officially announced price. On the other hand, in the case of the road side land, the appraisal has been made at the price of 1.45 times the officially announced price of the officially announced price of the land; in the case of the land on the road, the use of reference land in the business district including the development gains; in the case of the land on the road where commercial facilities are installed; and in the case of the reconstruction and other projects, there is no difference between the roads where the land is located.

3) The comparison standard price applied to the original individual land is not specified, and there was no comparison table between the individual land and the reference land as well as the specific individual factors which form the basis thereof, and no degree of other factors were considered, and the basis for such consideration was expressed. Such an appraisal is in violation of Article 21 of the Act on the Public Notice of Values and Appraisal of Real Estate and Articles 14, 15, and 17 of the Rules on Appraisal and Evaluation. The instant management and disposition plan was established based on the original appraisal as above.

B. Determination

1) Determination on the first argument

A) Determination on the base point of time for calculating the previous asset price

Article 48 (1) 4 of the Urban Improvement Act provides that the previous asset price shall be calculated on the basis of the "date of public announcement of authorization for the implementation of a project" in relation to the base point of time for calculating the previous asset price, and it does not specifically provide for cases where authorization for project implementation has been changed

However, in light of the following circumstances known by the above facts and the relevant statutes, it is reasonable to interpret “the date of public announcement of project implementation” as stipulated in the above provision as including not only the date of public announcement of the first project implementation but also the date of public announcement of the modification if a new project implementation plan has been approved with the content of substantially changing the main parts.

(1) Where a project implementer intends to implement a rearrangement project, he/she shall submit a project implementation plan to the head of a Si/Gun along with articles of association, etc. and other documents prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport, and obtain authorization for the project implementation; and shall also apply where he/she intends to modify the authorized matters or suspend or discontinue the rearrangement project: Provided, That where he/she intends to modify minor matters prescribed by Presidential Decree, he/she shall report it to the head of a Si/Gun; accordingly, Article 38 of the Urban Improvement Act provides for minor matters sufficient to report to the head of a Si/Gun. According to the details, form, and purport of the relevant provisions of the Urban Improvement Act, unlike the case of changing the insignificant matters of the initial project implementation plan, the Urban Improvement Act and subordinate statutes, unlike the case of changing the original project implementation plan, establish a

② Furthermore, where the main parts of the project implementation plan are substantially changed and a new management and disposal plan is established based on the application for parcelling-out, the original management and disposal plan becomes null and void, barring any special circumstances, barring any special circumstance, and the initial management and disposal plan which is merely a legal relationship in the past becomes null and void. In addition, even in the case of the approval of the project implementation plan, where the main parts are substantially changed, there is no subsequent act, such as acceptance procedure premised on the validity of the approval disposition, or subsequent act, even if there was a change or replacement procedure, and if the initial project implementation plan does not affect the rights and obligations of the union members as of March 22, 2012, there is no legal interest in seeking nullification of the plan (see, e.g., Supreme Court en banc Decision 2011Du6400, Mar. 22, 2012; Supreme Court Decision 201Du30199, Nov. 28, 2013).

(3) It is unreasonable to interpret Article 48(1)4 of the Act on the Improvement of Urban Areas and Dwelling Conditions as “the date of initial announcement of project implementation” in light of the following: (a) it is not reasonable to interpret Article 48(1)4 of the same Act as “the date of initial announcement of project implementation” in a case where the main parts of a project implementation plan or a management and disposal plan are substantially modified, as seen in the recent Supreme Court ruling regarding various legal effects, including the existence of legal interests, etc. when there is a significant change in the approval of a new project implementation plan or where the main parts thereof are not changed and procedural requirements are newly satisfied; and (b) insofar as there is a substantial change in the approval of a new project implementation plan

④ In addition, if the main parts of the project implementation plan, etc. are changed, which have a significant impact on the interests of the association members, were to be applied for parcelling-out based on the current status of the previous project implementation plan or maintenance and improvement project without applying for parcelling-out, or the choice of the owners of land, etc. who did not apply for parcelling-out is still valid, it would result in a violation of the purpose of the relevant provisions of the Act on the Maintenance and Improvement of Urban Areas

⑤ Therefore, if a project implementer has substantially changed the contents of the initial project implementation plan with respect to “bearing of expenses by a cooperative,” which has a significant impact on the interests of its members, the project implementer shall go through a new public announcement of sale and application for parcelling-out for the owners of land, etc., but in the case of partial change of the project implementation plan that does not reach such degree,

(6) In addition, where the contents of the original project implementation plan are substantially modified to the extent that the application for parcelling-out should undergo the procedure, a management and disposal plan is also newly formulated, and in such case, the evaluation of the previous assets and paper assets, which are the basis of a new project implementation plan, is reasonable as of the approval date

B) Determination as to whether a project implementation plan has been substantially changed

Whether the bearing of expenses by a cooperative, etc., which has a significant impact on the interests of its members, has been substantially modified shall be determined by comprehensively taking into account various circumstances, including the purpose of Article 24(6) of the Urban Improvement Act (amended by Act No. 11293, Feb. 1, 2012; hereinafter referred to as the “Urban Improvement Act”) that held that the criteria for aggravated resolution are necessary when the formulation of a project implementation plan is substantially modified to the extent that the interests of its members are substantially affected (see, e.g., Supreme Court Decision 2010Du13463, Aug. 23, 2012); the formulation and amendment of a project implementation plan (including matters concerning suspension or abolition of a rearrangement project under the proviso to Article 28(1) of the Urban Improvement Act; excluding minor modifications under the proviso to Article 48(1) of the same Act); and the formulation and amendment (excluding minor modifications under the proviso to Article 48(1) of the Urban Improvement Act).

Therefore, it is reasonable to view that the contents of the first and second project implementation authorization fall under a new project implementation authorization with substantial changes in the overall area, site area, building-to-land ratio, volume ratio, building height, number of floors, total floor area, size of apartment house, size of apartment house and size of project implementation period, etc. when comparing the contents of the original project implementation authorization with the contents of the original project implementation authorization.

In addition, in comparison with the original management and disposition plan, the management and disposition plan of this case, which was established accordingly, has been significantly modified in terms of the building supply plan, the appraised value and estimated value of the previous and following assets, the amount of funds operation, proportional rate, and the scale of housing, etc., and further, the application for parcelling-out has been newly received after the approval of the original project implementation plan, and there is an interval of time for not less than 6 years from the first time, shall be deemed to have been amended to a new management and disposition plan

Therefore, in this case, the “date of public announcement of authorization for project implementation” under Article 48(1)4 of the Urban Improvement Act shall be deemed the date of public announcement of new authorization for project implementation. However, when formulating the instant management and disposal plan, the Defendant calculated the previous asset price according to the initial appraisal as of June 13, 2005, which is the date of public announcement of the initial authorization for project implementation. As such, the above previous asset price calculation is unlawful in violation of Article 48(1)4 of the Urban Improvement Act, and accordingly, the Plaintiff’s above assertion seeking cancellation of the portion of the instant management and disposal plan calculated based on this is reasonable.

C) Judgment on the Defendant’s assertion on the assessment judgment

The defendant does not have any interest to the plaintiffs even if the part of the management and disposition plan of this case such as estimated amounts, etc. of this case is revoked, and instead, if the defects are supplemented, the same management and disposition plan will be approved, thereby causing damage to the defendant's members, and considering the public interest of the reconstruction project, etc., the defendant shall seek a ruling on the circumstances on the ground that the cancellation of the part such as estimated amounts, etc. of this case

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 shall be limited under extremely strict requirements. In determining whether it is substantially 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 which may arise from such revocation or alteration, etc. shall be compared and compared to the application of the judgment (see Supreme Court Decision 98Du4061, May 8, 1998, etc.).

In addition, there is no evidence to acknowledge the cancellation order of the part concerning the estimated amount, etc. of the instant management and disposition plan, as alleged by the Defendant. Rather, the Plaintiffs seek not to seek the cancellation of the entire management and disposition plan of this case, but only seeking the cancellation of the part concerning the estimated amount, etc. of this case. Thus, the Defendant’s assertion is without merit.

2) Judgment on the second argument

Article 48 (1) 4 of the Act on the Public Announcement of Values and Appraisal of Real Estate shall apply mutatis mutandis to cases where a project implementer intends to obtain appraisal of the property under paragraph (1) 3 and 4 in a housing reconstruction project by an appraisal business entity under the Public Notice of Values and Appraisal of Real Estate Act, and Article 48 (5) 1 of the same Act provides that Article 48 (5) of the same Act shall apply mutatis mutandis to cases where a project implementer intends to obtain appraisal of the property under paragraph (1) 3 and 4, and Article 48 (5) 1 of the same Act provides that the appraisal of property or rights under paragraph (1) 3, 4 and 7 shall be made by calculating the arithmetic mean of the values appraised by at least two appraisal business entities selected and contracted by the head of a Si/Gun among appraisal business entities under

Meanwhile, Article 4 subparagraph 1 of the Evaluation Guidelines provides that the date of public announcement of authorization for the implementation of previous assets related to a redevelopment project or a reconstruction project shall be the date of public announcement of authorization for the implementation of the previous assets, and Article 9 (1) provides that the evaluation of previous assets shall be based on the real situation of use on the date of public announcement of authorization for the implementation of the project, but the designation of a rearrangement zone shall be based on the status of not subject to restrictions in the public law

According to the above relevant provisions, since the evaluation base date of previous assets is stipulated as the date of public announcement of project implementation authorization (including the date of public notification of project implementation authorization if the project is substantially modified), it is reasonable to evaluate the normal development gains even at that time as including the market price. Therefore, the plaintiff's assertion that the development gains are reflected in the initial appraisal and are illegal is without merit.

3) Sub-determination

Therefore, without examining the remaining claims of the plaintiffs, the part of the instant management and disposition plan of this case, which calculated the previous asset price, etc. according to the initial appraisal as of the date of the initial public notice of project implementation authorization, is unlawful as it violates Article 48(1)4 of the Urban Improvement Act.

4. Conclusion

Therefore, all of the plaintiffs' claims are justified, and it is so decided as per Disposition.

[Attachment]

Judges Kim Jong-dae (Presiding Judge)

(1) The Seoul High Court case No. 2014Nu1200 is also under trial on the same issue.