[1] Legal nature of a lawsuit against a housing reconstruction and improvement project association under the Act on the Maintenance and Improvement of Urban Areas and Residential Environments (=party lawsuit under the Administrative Litigation Act)

[2] Whether a housing reconstruction and improvement project association under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents can seek confirmation of invalidity of the resolution of the general meeting on the management and disposal plan formulated pursuant to Article 48 of the same Act after the competent administrative agency's approval and public notice is given (

[3] The measures to be taken by the court of the lawsuit in a case where a lawsuit to be filed as an administrative litigation is raised as a civil lawsuit without intention or gross negligence and the court of the lawsuit has jurisdiction over such administrative litigation at the same time

[4] Where a lawsuit seeking confirmation of invalidity of the resolution of the general meeting on the management and disposal plan of the housing reconstruction and improvement project association was filed in violation of jurisdiction and the competent administrative agency's authorization and public notice was made, the case holding that the lawsuit must be deliberated in accordance with the procedure prescribed by the Administrative Litigation Act, and that it shall be made in a lawful form of litigation by appropriately exercising the right to ask for explanation as to whether it has been modified as an appeal litigation

[5] In a case where the bill on the "matters to be included in the contract with the Si construction work" presented to the general meeting of the Housing Reconstruction and Improvement of Urban Areas and Dwelling Conditions for Residents under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents is modified to the terms and conditions of the association members' sharing of expenses

[1] Article 18, Article 24 (3) 10, Article 48 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Article 3 subparagraph 2 of the Administrative Litigation Act, Article 250 of the Civil Procedure Act / [2] Article 24 (3) 10, Article 48 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Article 3 subparagraph 2, Article 4 of the Administrative Litigation Act, Article 250 of the Civil Procedure Act / [3] Article 24 (3) 10, Article 48 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Article 3 subparagraph 1, 2, Article 4, Article 21, Article 42 of the Administrative Litigation Act, Article 136, Article 250 of the Civil Procedure Act / [4] Article 24 (3) 10, Article 48 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Article 36 subparagraph 10 of the Civil Procedure Act

[1] [2] Supreme Court en banc Decision 2007Da2428 Decided September 17, 2009 (Gong2009Ha, 1648) / [1] Supreme Court Decision 2008Da93001 Decided October 15, 2009 (Gong2009Ha, 1832) / [5] Supreme Court Decision 2007Da31884 Decided January 30, 2009 (Gong2009Sang, 233) Supreme Court Decision 2007Da3182, 31839 Decided June 25, 2009

Plaintiff 1 and 10 others (Law Firm Sejong, Attorneys Choi Young-soo et al., Counsel for the plaintiff-appellant)

Succession Intervenor (Law Firm Sejong, Attorneys Choi Young-soo et al., Counsel for the successor-appellant)

Defendant Housing Reconstruction and Improvement Project Association (Attorney Kim Jong-gun, Counsel for defendant-appellant)

Samsung C&T Co., Ltd. and one other

Daegu High Court Decision 2006Na6264 decided May 15, 2008

Of the judgment of the court below, the part concerning the "case of the formulation of a management and disposal plan (draft)" as set forth in subparagraph 4 at the ordinary meeting of the defendant union on March 26, 2005 is reversed, and this part of the case is remanded to the Daegu High Court. The remaining appeals are all dismissed.

1. Determination ex officio as to the "case of subparagraph 4: the case of formulating a management and disposal plan (draft)"

A. A. A housing reconstruction and improvement project association under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”) is a public corporation that implements a housing reconstruction project under the Urban Improvement Act under the supervision of the competent administrative agency, and has the status of an administrative agent that performs certain administrative actions within the scope of its purpose as prescribed by law. A management and disposal plan formulated by a reconstruction association under Article 48 of the Urban Improvement Act as an administrative agent in the position of an administrative agent is likely to have a specific and direct impact on the property rights and obligations of its members by prescribing matters concerning the reversion of rights to sites or structures created as a result of the implementation of a rearrangement project, and matters concerning the apportionment of expenses to its members, etc., which constitutes a binding administrative disposition (see, e.g., Supreme Court en banc Decision 94Da31235, Feb. 15, 1996; Supreme Court Decision 2005Du11951, Sept. 6, 2007).

However, the management and disposal plan is effective only after the reconstruction association prepares a management and disposal plan based on the current status of application for parcelling-out of the association members, undergo the resolution of the general meeting of association and the public inspection of the owners of the land, etc., through the authorization and public announcement of the competent administrative agency (Article 24(3)10, Article 48(1), and Article 49 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents), and the resolution of the general meeting of association on the management and disposal plan is one of the procedural requirements leading to the administrative disposition called the management

Therefore, a lawsuit against a reconstruction association, which is an administrative subject, disputes the validity, etc. of the resolution of the general meeting of the association on the management and disposal plan is related to legal relations under public law which directly affects the illegality of administrative disposition according to the result of the lawsuit, since it constitutes a party lawsuit under the Administrative Litigation Act.

In addition, such a lawsuit may prevent a defective management and disposal plan from going into effect as an administrative disposition by obtaining a judgment to nullify the invalidity of the illegal resolution of the general assembly and submitting it to the competent administrative agency as data, or by requiring the reconstruction association to submit a new draft of the management and disposal plan to go through a resolution of the general assembly again. In addition, even in a case where the management and disposal plan is authorized and publicly announced despite the judgment to nullify the resolution of the general assembly, a dispute may be resolved promptly by using the judgment to nullify the resolution of the general assembly and the evidence in an appeal litigation disputing the validity of the management and disposal plan as litigation materials. Thus, it is necessary to allow prior to the authorization and public notice of

However, inasmuch as a management and disposition plan becomes effective when the competent administrative agency's approval and ruling on the management and disposition plan becomes effective until the time of the approval and ruling of the management and disposition plan, it is necessary to seek revocation or invalidity confirmation of the management and disposition plan by means of an appeal litigation disputing the validity of the administrative disposition on the grounds of defects in the resolution of the general meeting, and filing a lawsuit seeking confirmation of the validity of the management and disposition plan separately from the procedural requirements leading to the administrative disposition should not be allowed unless there are special circumstances (see Supreme Court en banc Decision 2007Da2428, Sept. 17, 2009).

B. According to the reasoning of the lower judgment and the record, this part of the lawsuit concerning the agenda item No. 4 was brought on April 21, 2005 against the Defendant, a reconstruction association under the Act on the Improvement of Urban Areas and Dwelling Conditions, seeking confirmation of invalidity of the resolution of the general assembly on the management and disposal plan, and thereafter, there was an approval and public notice on the management and disposal plan on August 2, 2005. However, for this purpose, an entity that the Plaintiffs sought to dispute by the lawsuit in this case is the validity of the management and disposal plan itself, which is ultimately a party suit under the Administrative Litigation Act before the authorization and public notice is made, and thereafter, must be based on the method of seeking revocation or invalidity of the management and disposal plan through an appeal litigation. However, the Plaintiffs maintained the attitude of the lower court seeking confirmation of invalidity of the resolution of the general assembly by means of civil litigation in accordance with the existing practice, which is the procedural requirements

However, as long as it has been confirmed that a lawsuit of this nature can only be brought by means of administrative litigation, the plaintiffs cannot maintain their existing positions. Accordingly, this part of a lawsuit falling under a party litigation under the Administrative Litigation Act can be modified into an appeal litigation against the management and disposal plan with permission of the court, and in the case where the plaintiff files a lawsuit as a civil litigation without intention or gross negligence, if the plaintiff has jurisdiction over the administrative litigation at the same time, the court of the lawsuit shall have jurisdiction over the administrative litigation, unless it is so obvious that the requirements for lawsuit as an administrative litigation are satisfied and it is illegal even if it is brought as an administrative litigation, it shall be deliberated and judged by having the plaintiff make the lawsuit to be modified by an appeal litigation (see Supreme Court Decision 97Da4250 delivered on November 26, 199). According to such legal principles, it is reasonable to have the plaintiffs have the opportunity to have the alteration of the lawsuit by an appeal litigation from the perspective of remedy of rights of the parties or the economy of litigation.

Therefore, the court below should have deliberated this part of the case in accordance with the procedure stipulated in the Administrative Litigation Act, and should have appropriately exercised the right to ask for an explanation as to whether a lawsuit has been changed to an appeal litigation in a party litigation, and should have been equipped in a legitimate form of litigation. Since the court below did not take such a measure as civil litigation without examining it in accordance with the procedure stipulated in the Civil Procedure Act, the court below erred in misunderstanding the method of hearing and giving an opportunity to make a change in the litigation, this part

2. Case No. 5: Judgment on the ground of appeal on the part of “approval for the conclusion of a main contract with the contractor”

A. On the first ground for appeal

Matters concerning estimated amounts and apportionments of rebuilding costs shall be the basis for selecting whether the sectional owners would participate in rebuilding, or whether the sectional ownership, etc. is sold and not participating in rebuilding in accordance with the market price, by bearing reasonable expenses, and thus, it shall not be omitted in the rebuilding resolution. However, it shall be sufficient to determine the apportionments or standards to the extent that it may not again reach an agreement on the cost sharing at the stage of the rebuilding execution (see Supreme Court Decision 2006Da64559, Jun. 25, 2009).

The lower court: (1) determined the estimated amount of expenses incurred in the removal of a building and construction of a new building at the inaugural general meeting of the Defendant Union at the end of June 11, 2003, as KRW 424.6 billion; (2) determined the tender instruction of the Defendant Union at the time of the inaugural general meeting and the project participation plan of the Defendant Intervenor as classified by item; (3) determined that the contents of the construction cost to be borne by the contractor; (4) the details of loans to the association members; and (5) determined the cost and the charges at the time of liquidation of the association in accordance with the management and disposition plan and determined the final determination of the charges at the time of liquidation of the association; (4) determined that the amount of the rights and shares of the association members and the charges of the association members are different from the area of the right of the association members present at the constructor in the case of an apartment building and the area of the newly constructed apartment building applied for by the association at the end of the 30th general meeting as well as the average share of the association members at the time.

In light of the above legal principles and records, the above judgment of the court below is just.

The court below did not err in the misapprehension of legal principles as to the establishment of rebuilding resolution as to the estimated amount of rebuilding cost and apportionment.

B. On the second and third grounds for appeal

Article 3 of the Addenda to the Urban Improvement Act (amended by Act No. 6852 of Dec. 30, 2002 and effective July 1, 2003) provides that "any disposition, procedure, and other acts conducted under the reconstruction-related provisions of the Housing Construction Promotion Act at the time this Act enters into force shall be deemed to have been performed pursuant to the provisions of this Act." Thus, the Urban Improvement Act shall apply to the defendant association at the same time as the Act enters into force. However, where a resolution is made by presenting to a general meeting an agenda concerning "matters to be included in the contract with the contractor" that requires strict procedures for modification of the articles of association, if the contents to be included in the contract are to be included in the contract, regardless of whether the contents are actually stipulated in the articles of association of the defendant association, it requires the consent of the Supreme Court Decision 200Da138138, Mar. 18, 2005; 200Da138130, Mar. 29, 2007).

According to the reasoning of the judgment below and the record, the defendant union is recognized to have obtained the consent of 1,945 households (70.67%) among the 2,752 members of the general meeting of the management and disposition.

The plaintiffs' assertion in this part of the grounds of appeal on this issue is that the agenda item No. 5 resolved by the general meeting of management and disposal is null and void since it did not obtain the consent of not less than 4/5 of all union members as a modification of rebuilding resolution. As seen above, as long as the consent of not less than 2/3 of all union members was obtained with respect to the agenda item No. 5, even if the agenda item No. 5 constitutes a resolution to revise rebuilding resolution, it

After recognizing the circumstances stated in its reasoning, the lower court determined that the resolution of the general meeting for administration and disposal of the agenda item 5 does not require a large number of special quorums of not less than 4/5 of the members of the general meeting, and determined that the resolution of the general meeting for administration and disposal of the agenda item 5 does not require any change in the rebuilding resolution. However, the part

Ultimately, the court below did not err in the misapprehension of legal principles as to the quorum for modification of rebuilding resolution, contrary to the allegations in the grounds of appeal.

C. As to the allegation of violation of equity between the apartment association members and the commercial association members among the fifth point

The court below determined that the resolution against the principle of equity was not made at the management and disposal general meeting, comprehensively taking into account the following: (a) a member’s investment in an association for housing reconstruction is a housing site or share; (b) in particular, in the case of a commercial building, a building site area or share area is more likely to exceed the building area; (c) so, even if a member supplies a new building based on the larger of the building area and the share area, it cannot be deemed that it would go against equity; (d) a building building size reduction is made in line with the land use plan of the district-centered area and the main district-centered area established as the master plan for the development of the apartment zone in the Seogu-gu, Seogu, Daegu; and (e) a cause for the increase in costs of a reconstruction project is more closely related to an apartment building than a commercial building, and the cost-bearing effect of the reconstruction project seems to be more likely

Examining the reasoning of the judgment below in light of the records, the above fact-finding and judgment of the court below are justified.

In addition, since there are various differences such as usage, profit, building construction ratio, etc., commercial buildings and apartment houses, it cannot be determined the same as free equity ratio or free benefit, etc. of the members of the apartment association and the members of the apartment association. There is no evidence to find out which circumstances alleged by the plaintiff have caused disadvantages to the members of the apartment association. Although the members of the apartment association are 2,718 members of the apartment association and the members of the commercial association are 34 households, the matters concerning the sharing of expenses were decided at the general meeting of management and disposal with multiple consent of the members of the apartment association, and it is difficult to find an objection against the equity issue between the members of the apartment association and the members of the commercial association until the time of the closing of argument in the lower judgment, considering the circumstances where it is difficult for the plaintiffs to claim this portion, it cannot be concluded that the contents of the cost sharing of

The court below did not err by misapprehending the legal principles on equity in relation to the cost-bearing of a reconstruction project, contrary to what is alleged in the grounds of appeal.

D. On the seventh ground for appeal

As long as the judgment of the court below that the resolution of the general meeting on the agenda item 5 was valid, this part of the grounds of appeal on the fact that the court below, on the premise that the quorum for the above agenda was not supported, a number of union members were completely cured by concluding a sales contract in accordance with the result of the general meeting, is without merit.

E. On the nine ground for appeal

According to the records, as one of the criteria for preparing a management and disposal plan under Article 45 subparagraph 6 of the Articles of association of the defendant association, "if there is a difference between the size of housing to be sold and the size of housing to be sold by a partner after the execution of a project, the amount calculated on the basis of the price per unit area, which is determined separately from the contractor, shall be paid by the association within the period determined by the association, or the association shall pay the amount." However, considering that the method of a reconstruction project is ordinarily an additional contribution in the course of the implementation of the project, regardless of whether it is a equity or a contracting system, it is reasonable to interpret that the articles of association completely excludes it does not fit the reality, it appears that the above articles of association provide the basic criteria for the contribution, and thereby, it cannot be readily concluded that all kinds of additional

Therefore, even though the court below did not explicitly state the judgment on this part, such errors cannot be said to have influenced the judgment.

3. Conclusion

Therefore, the part of the judgment of the court below regarding the "case of the establishment of a management and disposal plan (draft)" on the agenda No. 4 at the ordinary meeting of March 26, 2005 is reversed ex officio, and this part of the case is remanded to the court below for a new trial and determination. The remaining appeals are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)