[1] Whether a remodeling resolution under Article 37(1)1 Item (b) of the Enforcement Decree of the Housing Act is effective in a case where the number of sectional owners fails to meet the quorum required for authorization at the inaugural general meeting of the remodelling association, but thereafter, the written consent to the remodeling is separately submitted to the effect that the owners have agreed to the remodeling (affirmative), and the period of revocation of consent in a remodeling resolution by means of a written resolution

[2] Whether a member of a housing remodeling association can voluntarily withdraw from the association (negative with qualification)

[3] The case holding that in the case where the remodelling association applied for authorization for establishment after the remodelling association decided at its inaugural general meeting, but part of the sectional owners agreed to the remodeling resolution was withdrawn from the consent and was subject to authorization for establishment of the remodelling association only to the same Dong except for one unit from the administrative agency, and Gap and Eul filed an application for withdrawal of association members among the sectional owners Gap and Eul among the one of the preceding sectional owners, in the case where Gap and Eul filed an application for withdrawal of association members, the withdrawal of association members cannot be deemed to have withdrawn because they did not meet the requirements stipulated in the association regulations, and even if the application for withdrawal of association members was withdrawn from the consent for the remodeling resolution, it shall

[1] Article 37 (1) 1 (b) of the Enforcement Decree of the Housing Act / [2] Articles 38 and 39 of the Enforcement Decree of the Housing Act / [3] Articles 37 (1) 1 (b), 38, and 39 of the Enforcement Decree of the Housing Act

[1] Supreme Court Decision 2003Da5545 Decided June 24, 2005 (Gong2005Ha, 1238), Supreme Court Decision 2005Da1952, 19569 Decided February 23, 2006 (Gong2006Sang, 482), Supreme Court Decision 2006Da64559 Decided June 25, 2009 (Gong2009Ha, 1197)

Plaintiff 1 and two others

The head of Seongdong-gu Seoul Metropolitan Government (Attorney Kim Jong-hun, Counsel for defendant)

The housing remodeling association for the 1st apartment;

Seoul High Court Decision 2010Nu4874, 4881 decided September 3, 2010

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

Article 37 (1) 1 (b) of the Enforcement Decree of the Housing Act requires documents evidencing two-thirds or more of the entire housing complex and the sectional owners of each consent (referring to the sectional owners under Article 2 subparagraph 2 of the Act on the Ownership and Management of Aggregate Buildings) and voting rights (referring to voting rights under Article 37 of the Act on the Ownership and Management of Aggregate Buildings) in cases where a person who intends to obtain authorization for establishment or alteration of a housing remodeling association intends to remodel the whole housing complex as one of the documents to be attached at the time of an application for authorization for the establishment or alteration of a housing remodeling association. The determination of whether there is a valid resolution for remodeling required by the above provision is limited to the resolution at the general meeting. Although a person who consents to remodeling at the general meeting fails to meet the quorum necessary for such authorization, if a quorum is to be established by separately submitting a written consent from the remodeling association in the process of implementing remodeling based thereon, it shall be deemed that a resolution for approval for alteration is valid at the time of the establishment of a remodeling association and that a resolution for approval for alteration is not yet made.

According to the facts admitted by the court below and the records, the committee for promotion of the first apartment house (hereinafter referred to as the "multi-unit apartment house of this case") provides for the withdrawal of the non-party 1's association members of the non-party 1' association at its inaugural general meeting on November 25, 2006, with the consent of 616 members including 560 members who submitted a written consent to the establishment of the remodeling association and the permission for activities following the establishment of the association and the establishment of the association, from among the sectional owners of the apartment of this case, 623 members of the non-party 1' association, the committee for promotion of the non-party 1's association's association's withdrawal from the association of this case, or the non-party 1's association's withdrawal from the association of this case on the ground that the non-party 1's withdrawal from the association of this case was without the consent of the non-party 1's association's withdrawal from the general meeting of this case. The defendant cannot request the approval of alteration to the above 1's consent of the above 60.

In light of the above facts in light of the legal principles as seen earlier, the non-party 1 and the non-party 2 cannot be deemed to have withdrawn from the association because they failed to meet the requirements stipulated in the proviso of Article 11(4) of the Rules of the Intervenor Union. Even if the non-party 1 and the non-party 2 decided to withdraw the consent of the remodeling resolution, the decision to conduct remodeling including the above subparagraph 1 was made at the latest at the time when the Intervenor applied for the authorization of the housing association was made to the defendant on June 17, 2009, and thus, the withdrawal of the consent is invalid since it was made after the completion of the remodeling resolution.

Nevertheless, under the premise that the consent to the remodeling resolution can be freely withdrawn even after the remodeling resolution is valid until the disposition to authorize the establishment of the remodeling association is taken, the application for the withdrawal of the association members submitted by Nonparty 1 and 2 to the defendant is valid, regardless of the status of the union members. Therefore, in this case where the remaining sectional owners alone fail to meet the resolution requirements of at least 2/3 of both sectional owners and voting rights by building stipulated in the Housing Act, the Defendant’s disposition to approve the alteration of this case is unlawful. In so determining, the lower court erred by misapprehending the legal doctrine on the timing of withdrawal of the remodeling resolution under the Housing Act, which affected the conclusion of the judgment. The allegation in the grounds of

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)