In the redevelopment and reconstruction improvement project under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, whether a member can immediately seek confirmation of the status of a purchaser or the right to purchase a newly built house by means of a party suit under public law against the partnership at the stage prior to the establishment of

Articles 3 subparag. 2, 19, and 35 of the Administrative Litigation Act, Articles 74 and 76(1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents

Supreme Court Decision 95Da26131 Decided October 12, 1995 (Gong1995Ha, 3739) Supreme Court en banc Decision 94Da31235 Decided February 15, 1996 (Gong1996Sang, 768), Supreme Court Decision 2002Du1823 Decided June 14, 2002 (Gong2002Ha, 1689) (Gong203Du1988 Decided May 25, 2006)

Plaintiff 1 and two others (Attorneys Jeong Tae-sik et al., Counsel for the plaintiff-appellant)

The Housing Redevelopment and Improvement Project Association (Law Firm Jae, Attorneys Lee Jae-sik et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2018Nu77830 decided April 11, 2019

The judgment of the court of first instance is reversed, and the lawsuit of this case is dismissed. All costs of lawsuit are assessed against the plaintiffs.

Judgment ex officio is made.

1. In order to have the benefit of confirmation of the legal relationship that is the subject of a lawsuit for confirmation, there must be a danger or omission that exists in the claimant’s rights or legal status according to the legal relationship, and in order to remove the danger or omission, it is necessary to immediately confirm by the judgment of confirmation that is the subject of confirmation of the legal relationship, and it should be the most effective and appropriate means (see Supreme Court Decisions 95Da26131, Oct. 12, 1995; 2002Du1823, Jun. 14, 2002).

Under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the status of the purchaser or the right to purchase new houses created as a result of the execution of the project in the redevelopment and reconstruction project under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “right to purchase new houses”) shall be determined by the management and disposal plan formulated according to the standards under each subparagraph of Article 76(1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, not by the application for parcelling-out to the owner of land, etc. who became a partner. Therefore, where a management and disposal plan is formulated differently from its contents of application for parcelling-out, the partner can seek the cancellation or invalidity of the management and disposal plan by the method of an appeal litigation, and it is not immediately allowed to seek the confirmation of the right to purchase new houses from the partnership

Under the current Administrative Litigation Act, a lawsuit seeking an administrative agency to take or not take a certain measure in the future (see Supreme Court Decisions 91Nu4126 delivered on February 11, 1992; 2003Du11988 delivered on May 25, 2006) is not allowed (see Supreme Court Decision 2003Du11988 delivered on May 25, 2006).

Therefore, it is not only the verification of existing rights and legal relations, but also the verification of future rights and legal relations, and the verification of the obligation to formulate a management and disposal plan with a specific content constitutes a lawsuit seeking confirmation of obligation not permitted under the current Administrative Litigation Act, and thus, it is unlawful for a partner to immediately seek confirmation of the right to parcel out, which is not specifically determined against the partnership at the stage prior to the establishment of the management and disposal plan.

2. In the case of the housing redevelopment improvement project of this case, it is clear in the record that there is no fact that the Defendant, the project implementer, has yet formulated a management and disposal plan as at the time of filing the lawsuit of this case or the time of closing argument of the court below. In this stage, the lawsuit seeking confirmation against the Plaintiffs, the members of the association, is

Nevertheless, the lower court made a determination on the merits with excessive consideration. In so doing, the lower court erred by misapprehending the legal doctrine on party litigation under the Administrative Litigation Act, thereby adversely affecting the conclusion of the judgment.

3. Therefore, without examining the grounds of appeal, the judgment of the court below shall be reversed without further proceeding to decide on the grounds of appeal. Since this case is sufficient for the court to directly decide, the judgment of the court of first instance shall be revoked, and the lawsuit of this case shall be dismissed, and the total costs of the lawsuit shall be borne by the plaintiffs. It is so decided as

Justices Min You-sook (Presiding Justice)