Plaintiff 1 and five others (Law Firm Cheongn, Attorneys Choi dilution et al., Counsel for the plaintiff-appellant)

Resignation Apartment Reconstruction Association and 1 other (Law Firm International Law, Attorneys Lee Won-chul et al., Counsel for the plaintiff-appellant)

May 30, 2008

Busan District Court Decision 2006Gahap17006 Decided October 4, 2007

1. The plaintiffs' appeal and the defendant's additional claims are all dismissed.

2. The costs of the lawsuit after the appeal are assessed against the plaintiffs.

The part against the plaintiffs in the judgment of the court of first instance is revoked. The resolution of the board of representatives on the amendment of the management and disposition plan of the defendants on April 11, 2006 and the resolution of the general meeting of commercial building management on August 24, 2006 confirm that it is null and void (the plaintiff added a claim to seek confirmation of invalidity of the resolution of the board of representatives at the trial, and partly corrected the wording of the existing purport of the claim).

1. Basic facts

① The Defendant Resignation Apartment Reconstruction Association (hereinafter “Defendant Association”) is a reconstruction association established for the purpose of removing the existing apartment and commercial building and rebuilding the apartment and commercial building on the site that was constructed on the 2nd 81-12nd dong-gu, Busan. The apartment and commercial building owners of the apartment and commercial building are the reconstruction association established on February 28, 2001 under the former Housing Construction Promotion Act, and the authorization to establish the housing association was granted on January 11, 2003, and the reconstruction association was registered on July 24, 2003 after obtaining the approval of the project plan on January 24, 2003, and the reconstruction project is implemented upon obtaining the consent to the reconstruction association’s establishment registration. The Defendant Samsung Construction Co.,, Ltd. (hereinafter “Defendant Co., Ltd”) is the contractor and joint project owner of the said reconstruction project.

(2) The rules of the defendant association shall include the following provisions:

Article 7 (Qualifications, etc. of Members) ① The members of the association shall be the owners of welfare facilities, such as the owners of apartment buildings, commercial buildings, etc. in the project implementation district (including the site attached to welfare facilities, such as the relevant housing and commercial buildings) who have consented to the rebuilding resolution. ② If the same person or one household owns several apartment buildings, the association members shall be deemed to be one member regardless of the number of apartment houses owned by them and only one house shall be supplied. ③ If one apartment house is jointly owned by several owners, the association members shall be deemed to be one member of the association regardless of the number of apartment houses owned by them.

Article 16 (Resolution Method of General Meeting) (1) A general meeting shall be held with attendance of a majority of members, and shall pass a resolution with the consent of a majority of members present

Article 18 (Board of Representatives) (1) The association shall have a board of representatives. (5) The board of representatives shall pass a resolution with the attendance of a majority of the delegates and with the consent of a majority of the delegates present, and the chairperson shall have the right to make a decision

Article 19 (Exercise of Authority for General Meeting by Board of Representatives) The Board of Representatives shall act on behalf of the general meeting for the following matters:

5. Alteration of the project execution plan;

8. Amendment to the regulations or amendment to the project implementation plan, or amendment to the management and disposal plan, which does not significantly disadvantage the property of the cooperative;

Article 30 (Management and Disposal Plans) The actual affairs of management and disposal of property owned by members shall be as follows:

1. In principle, 2,270 existing apartment ownership members of an apartment building shall be gratuitously sold in the scale of the housing determined at the general meeting of the members of the construction company through open competitive bidding for the building to be purchased after the implementation of the project;

2. The area of a building (multi-family housing) to be sold to members after the implementation of the project shall be based on the area of sale in lots, and a site shall be sold in lots in proportion to the area of an apartment unit in lots;

3. The management and disposal of existing shop occupants shall be dealt with after obtaining the approval of the board of representatives from the association and the parties concerned, subject to consultation with the joint project executor;

③ Within the said reconstruction project zone, there are 22 commercial buildings, such as 15 or more dispersion shops, 6 or more comprehensive shopping districts, and one agricultural product shop, as described in the attached Table, and the sectional owners of the commercial buildings are also as described in the attached Table ( Nonparty 1 owns 201 or 1 or 2 or more distributed shopping districts). Of them, among them, persons, other than Nonparty 2, other than Nonparty 2, obtained a written consent to re-building from October 24 to December 15, 2003, by submitting a resolution on re-building to the Defendant association, thereby becoming a member of the Defendant association or being appointed as a representative from among co-owners).

④ After formulating a management and disposal plan on the details of newly-built commercial buildings and apartment lots to be sold to the owners of existing commercial buildings and apartment houses, the Defendant Union held a management and disposal general meeting on November 9, 2003 in accordance with the association regulations and passed the above management and disposal plan. In the management and disposal plan, the sales plan for the members of the commercial buildings

The actual substance of the commercial building sales shall be first compensated for the substitute members, and the standard for the substitute compensation shall be the total floor area (exclusive floor area) on the same floor as the standard floor determined at the time of approval for the existing commercial building.

The actual substance shall be governed by the agreement concluded separately, such as compensation for members of the commercial building.

The actual cost of sales of general commercial buildings, excluding members of commercial buildings, shall be separately determined and implemented by the City Corporation.

⑤ The Defendants entered into a separate agreement referred to in the above management and disposition plan (hereinafter referred to as “the first agreement”) with the sectional owners, other than Nonparty 2, before and after the above management and disposition general meeting, and the main contents are as follows:

The actual contents of the actual prices, including existing decentralization, shall be deemed as one aggregate building, and all neighborhood living facilities shall be deemed as one aggregate building, and the amount of compensation for the existing price shall be the exclusive use area of the shopping mall based on the exclusive use area of the existing price. The compensation rate shall be 1:1.5 (The sharing area of the new price shall also be provided to the existing commercial building members free of charge according to the exclusive use rate of the new market price, and the parking lot shall also be provided without compensation in the same manner as the apartment house. In addition, the existing market shall be compensated

The order of priority of the members of a commercial building shall be determined in the order of the highest price per member by the appraiser on the basis of the number of floors in which the commercial building is located, and the final decision shall be made by the management and disposal general meeting after consultation with

The actual tax shall be determined and distributed among the members when the total floor area of the building for the occupancy of each floor of the newly-built shop falls short of the total building area of the members, but the remaining area shall be settled in kind at the sales price at the time of the sale.

④ After the conclusion of the first agreement, some members of a commercial building raised an objection to the commercial building design from May 2005 to January 2006. The Defendants offered to the sectional owners listed in the attached Table on February 20, 2006 the following terms and conditions (hereinafter “the second agreement”). Of the above sectional owners, the remaining persons, other than Plaintiffs 2 and Nonparty 7, 8, 9, 10, 11, and 2, accepted the said proposal, affixed seals or affixed seals on the document (No. 3) stating the above agreement.

The 222 co-owners agree to the 222 co-owners in order to alter the design of the structure and area of the 2,129.76 on the 2,129.76 on the 5th ground, while the 223 co-owners agree to the 2,123 co-owners in total underground and the 2,2098.32 on the 5th ground.

The actual substance of the commercial building members shall sell a new market price (including the exclusive use area and the co-ownership area) equivalent to 260% of the existing market price, and make compensation to members of the commercial building, but the object of the compensation shall be the total sum of the sale area of 222 and the 1st, the 1st, the underground floor, the 228.49 (the exclusive use area of the commercial building shall be 409.5), the 223rd and the 1st, and the 468.02th (the exclusive use area of the building shall be 31.11) of the underground market price.

The actual accounts shall be carried out, however, with respect to a joint agricultural market among the existing market values, the number and size of the previous 1st floor shall be allocated, as in other existing market values, and with respect to the 15.61st and 2nd floor 3.35th floor above the ground level, after consultation with the defendant company, 223th floor above the ground level shall be sold.

In addition to these agreements, the actual contents of the first agreement shall be followed.

7) Since then, the defendant union held a board of representatives on April 11, 2006 pursuant to Article 19 subparagraphs 5 and 8 of the Rules of the Association and Article 30 subparagraph 3 of the said Code and passed the second agreement (hereinafter the resolution of the board of representatives in this case), and the head of the Dong-gu Busan Metropolitan City approved on April 18, 2006 the alteration of the business plan of the defendant union based on the second agreement under the Housing Act, which is not the Urban and Residential Environment Improvement Act.

(8) On July 20, 2006, the Defendants: (a) held an explanatory meeting for sale in lots to prepare and distribute to the members of a commercial building the data containing the division and allocation of the selling price in accordance with the second agreement (No. 6); (b) explained the procedures for sale in lots and the details thereof; and (c) on August 16, 2006, the Defendants held a meeting of most sectional owners as stated in the attached Table and explained on the draft of distribution in lots (No. 9) as explained in the said explanatory meeting; and (d) explained the details thereof as follows.

The actual substance is divided into 30 divided shopping districts (14.82 square meters per commercial building floor) based on the area of 15 existing decentralization shopping districts (14.82 square meters per 14.82 square meters), which accounts for the largest number of the actual prices owned by each member of the association (15 existing decentralization shopping districts (10 square meters for each divided price) which consists of 30 divided shopping districts, among the 222 underground floors, 222 underground floors, 1st and 223 underground floors and 1st and 223rd underground floors, and 1st and second floors above the ground surface) which have the largest economic value compared to each member of the association. The subsequent 30 divided shopping districts shall be selected and designated by each member according to their existing ownership area and priority order of appraisal and assessment.

The actual contents of the compensation for the remaining amount of compensation after the first distribution shall be selected and designated by each member according to the existing ownership price and the order of appraisal and assessment of each member's existing ownership price. The compensation for the remaining amount of compensation after the first distribution shall be distributed twice each member's second and second underground floors, 222 underground floors, 223 underground floors, and 222 underground floors, 1, 223 underground floors, 23 underground floors, and 222 underground floors.

In the case of the previous agricultural product prices, according to the terms of the second agreement on February 20, 2006, the existing ownership price shall be allocated only the area of the first floor (33.35 square meters) according to the priority order of appraisal and assessment, and the remainder of the existing market price shall be compensated with the second floor above the second floor above the second floor above the second floor (15.61 square meters) and the second floor above the second ground (3.35 square meters).

① On August 24, 2006, in order to obtain the consent of the members of the commercial association from most of the sectional owners listed in the attached Table, the Defendant Union held the second general meeting of the commercial association members present (hereinafter “instant general meeting”). At the above general meeting with the consent of at least 11 members of the commercial association, the Defendant Union signed the document under the title “the signature of the person who consented to the resolution of the general meeting of the management and disposal of the members of the commercial association” (No. 8-5).

【Ground of recognition】 without any dispute, Gap evidence 1, 2, Eul evidence 6-1 through 9, Eul evidence 16-1, 2, Eul evidence 1-2, Eul evidence 2-1 through 25, Eul evidence 2-1, 2, Eul evidence 7-1 through 4, Eul evidence 8-1 through 5, Eul evidence 9, Eul evidence 10-1 through 5, Eul evidence 11, 12, Eul evidence 24, non-party 24 witness of the first instance trial, the purport of the whole pleadings

2. The second agreement, the quorum for the resolution of the general meeting of this case, and the nature of the board of representatives of this case

(a) The second agreement;

(1) Applicable law

Article 7 (1) of the Addenda to the Act on the Improvement of Urban and Residential Environments (hereinafter referred to as the "Act") provides that "any person who is in force with the approval of a project plan or the authorization of a project implementation under the previous Act shall be governed by the previous Act," and the above Act was enforced on July 1, 2003, and since January 11, 2003, the fact that the defendant association obtained the approval of a project plan from the head of the Dong-gu Busan Metropolitan City head of the Dong-gu Busan Metropolitan City Office on the approval of the project plan is as seen earlier,

(2) Whether the quorum satisfies the quorum

According to the facts acknowledged above, the second agreement is a modification of the management and disposal plan adopted at the general meeting of the management and disposal of a person on November 9, 2003, and the first agreement specifying it, and the sale floor and sale area as stipulated in the first agreement, and the matters concerning the reversion of sectional ownership of a new building, and it constitutes a substantial modification of the rebuilding resolution, and thus, the provisions of Article 47(2) of the Act on the Ownership and Management of Aggregate Buildings apply mutatis mutandis to the substantial modification of the rebuilding resolution, and it is valid that at least 4/5 of the members have passed a resolution. However, in light of the provisions of Article 41(1) of the same Act, a resolution by a written agreement shall also be possible (see Supreme Court en banc Decision 2003Da4969, Apr.

On the other hand, the legal principle that, in the case of rebuilding of a number of apartment buildings in a single aggregate building in a complex, if the requirements for rebuilding resolution are not satisfied in some Dongs, but if the rest of the building satisfies the requirements for rebuilding resolution, there is a legitimate rebuilding resolution (see Supreme Court Decision 2003Da55455, Jun. 24, 2005) shall be applicable to the modification of rebuilding resolution, and even if there is a modification of rebuilding resolution on the building in a single building deemed as one building by the first agreement, it shall not be necessary to make a resolution on the modification of rebuilding resolution on the building in a commercial building, unless the rebuilding resolution that has been effective in the remaining apartment is affected to the extent that it cannot be recognized as identical to the common sense of society, unless the modification resolution is affected by the modification resolution.

However, the second agreement provides for the order of sale among the members of a commercial building exclusively sold to the members of the commercial building and its floor and the order of sale among the members of the commercial building is not considered to have been changed to the extent that the resolution of reconstruction that has been effective in the apartment cannot be recognized as identical. Thus, in order to be valid, the second agreement is deemed to have obtained the consent of 16 members of the commercial building equivalent to 4/5 of the 20 members (excluding the number of non-party 2 who did not consent to the rebuilding resolution among the 21 sectional owners) (excluding the number of non-party 2), and as seen earlier, the second agreement can be deemed to have been combined with the agreement of 15 members of the commercial building (non-party 3, 4 joint ownership), Non-party 17, 18, 19, 19, and 5 of the commercial building (non-party 5, non-party 20, non-party 215, and non-party 16).

B. Resolution of the board of representatives of this case

Even if the rebuilding resolution on apartment buildings has not been changed to the extent that it is impossible to recognize identity due to the revision of the rebuilding resolution on the commercial building, it is clear that the rebuilding resolution on apartment buildings has an impact on the members of the apartment association. As such, in the event of a substantial change in the rebuilding resolution on the commercial building, it may be deemed that the said resolution should be made by the board of representatives pursuant to Article 19 and Article 30 (3) of the

C. Resolution at the general meeting of this case

If the resolution of the general assembly of this case is merely a mere specification of the second agreement, the quorum is satisfied pursuant to Article 16(1) of the Union Regulations with the attendance of a majority of the members of the commercial building and with the consent of a majority of the members present. On the other hand, if the resolution of the general assembly of this case constitutes a resolution to substantially alter the second agreement, the consent of 16 members of the commercial building is required

3. Judgment on the plaintiffs' assertion

A. As to the resolution of the board of representatives of this case

(1) The plaintiffs' assertion

Unlike the provisions of the rebuilding project plan and the Act on the Maintenance of Urban and Residential Environments, which was sent by the Defendant Cooperative to the sectional owners listed in the attached Table on August 29, 2002, seeking the consent to the rebuilding resolution, the second agreement did not specify appraisal agencies for two occasions. Unlike the management and disposal plan and the first agreement, it did not obtain the consent of all interested land owners. Unlike the management and disposal plan and the first agreement, the scope of the sale compensation for newly constructed buildings is calculated based on the size not exclusive use area. The Defendants did not receive the agreement (Evidence No. 5) from the sectional owners, including the Plaintiffs on February 10, 206. The Defendants did not receive the consent of the sectional owners on February 20, 206, with the consent of the sectional owners on February 20, 2006, without explaining the changed contents with the evidence No. 5 and No. 3 attached to the building No. 3, and the second agreement was modified by exercising the agreement to purchase and purchase the second agreement in violation of equity among the members.

The resolution of the board of representatives of this case, which passed a defective secondary agreement as mentioned above, is not only invalid, but also invalid, and there is a defect in the resolution of the second agreement without selecting commercial union members as representatives in violation of the rules of the defendant association. Above all, the second agreement requires the general assembly of all the defendant association in order to make a resolution on the change of the rebuilding agreement. The resolution of the board of representatives of this case contrary thereto is merely a resolution on matters without authority and has no validity (In addition, the plaintiffs asserted that there was no fair market value assessment, such as the failure to appraise commercial buildings, etc. as of the date of public announcement of the authorization for project implementation, but even if there is an emotional problem, the effect of the resolution itself can not be decided).

(2) Determination

The Act on the Maintenance of Urban and Residential Environments and Dwelling Conditions does not apply to the reconstruction of the defendant association, and it is not necessary to make a separate resolution other than the resolution of the members of the commercial association for the alteration of rebuilding resolution concerning the commercial building, and all the valid resolutions with the quorum are as seen earlier. As such, in the reconstruction of the defendant's commercial building, the second agreement shall be applied in preference to the previous rebuilding project plan and management and disposal plan, and the first agreement shall be applied in preference to the first agreement. Therefore, all arguments such as the violation of the Act on the Maintenance of Urban and Residential Environments and Dwelling Conditions, the contents of the

In addition, it is insufficient to recognize that the testimony of Nonparty 23 by Nonparty 15 and Nonparty 23 of the first instance trial witness has been involved in the conclusion of the second agreement as alleged by the Plaintiffs, and there is no other evidence to acknowledge this otherwise. The second agreement merely provides that the highest order of sale in lots of commercial building members shall be calculated by the appraisal price at the average level (in this part, the remaining result of the first agreement shall be the result), and it does not seem that the appraisal of the first agreement would result in a significant violation of equity among the union members, except the complaints of the union members, which have been determined lower appraisal.

Finally, the resolution of the council of representatives of this case is to reflect the position of the members of the apartment association, and even if the representatives of the commercial buildings failed to attend the above resolution on the wind that the representatives of the commercial buildings are not elected, the intent of the members of the commercial buildings were sufficiently reflected in the process of concluding the second agreement, so such defect cannot affect the validity of the resolution of the council of representatives of this case.

Therefore, all of the plaintiffs' arguments are without merit.

B. As to the resolution of the general assembly of this case

(1) The plaintiffs' assertion

Even though the principle of maintaining the same floor was not modified in the second agreement and the resolution of the board of representatives of this case, the same floor was not modified (the existing first floor commercial building of a complex has the right to be allocated preferentially, not to the first floor, but to the second floor with high economic value). The general assembly of this case changed the principle of maintaining the same floor. The resolution of the general assembly of this case is null and void even if the resolution of the general assembly of the defendant association or the consent of not less than 4/5 of the members of the commercial building was required. In the case of the commercial building, the first floor and the second floor are considerably different in terms of its economic value, and the resolution of the general assembly of this case, which did not consider it, is null and void in that there is a serious and clear defect that could not maintain equity among the members

(2) Determination

First, as alleged by the plaintiffs, there is no evidence to acknowledge that there was an agreement between the members of the existing first floor commercial building at the time of the second agreement that the members of the commercial building shall be given preferential allotment of the main value of the new commercial building. According to the above facts established prior to the resolution of the general meeting of this case, the management and disposal plan and the first agreement excludes the second floor of the new commercial building from the object of sale to the members other than the agricultural and fishery products under the agreement to consult with the defendant company, so the principle of maintenance of the same floor (including the criteria for the priority of sale as well as the object of sale) which is used as the standard of sale in the second agreement is already excluded. Furthermore, it is reasonable to view that the resolution of the general meeting of this case is not changing the second agreement but merely a concrete assessment based on the appraisal price of the object of sale, area, allocation order, etc. as stipulated in the second agreement. Thus, the resolution of this case is valid due to the attendance of the majority of members of the commercial building and the resolution of the majority of the members.

Next, as seen earlier, there is no infringement of any equity in the content of the second floor agreement, and the resolution of the general meeting of this case, which has embodied it, does not seem to have any defect as argued by the plaintiffs. [If the market price of the second floor, such as the plaintiff's assertion, is higher than that of the second floor commercial building (the important factor to determine the market price of the commercial building is deemed to be more than the number of floors, and the appraisal price falls below that of the second floor and the second floor commercial building can be known to be higher than the number of floors), the plaintiffs are still able to secure the right to preferential allotment for the members of the existing second floor commercial building even if the principle of maintaining the second floor is excluded, and if the right to preferential allotment is granted to the members of the existing first floor commercial building regardless of the appraisal in the fifth floor excluded from the principle of maintaining the same floor, it can be said that the equality among the members is infringed.] Therefore, there is no reason to assert that the plaintiffs

4. Conclusion

Therefore, the plaintiffs' claims of this case are dismissed in its entirety due to the lack of grounds, and the judgment of the court of first instance with the same conclusion is justifiable, and all of the plaintiffs' appeals and claims for addition in the court of first instance are dismissed. It is so decided as per Disposition.

[Attachment]

Judges Lee Sung-won (Presiding Judge)

1) Notwithstanding the provisions of Article 18(3) of the Act on the Improvement of Urban Areas and Residential Environments (a partnership shall use the word "project partnership" in its title), a reconstruction association which obtained an authorization to establish an association before July 1, 2003 may register with the name at the time of authorization (see the reply of 3402-36 inquiry of deposit corporation, Feb. 6, 2004).

2) If Article 17(2) and (3) of the Union Regulations excludes the part “to supply only one house”, it is reasonable to view that it applies not only to apartment houses but also to commercial buildings.

3) Although the consent letter of the rebuilding resolution in the number of Nonparty 3, 4, 5, and 6 was not submitted in writing, in light of the fact that the document of the second agreement, which is the document of the disposal of the second agreement, is affixed to the document No. 3, which is seen below, their seals are affixed to the reconstruction project, it seems that they agree to the reconstruction project.

4) Under the first agreement, a new shop with an existing shop equivalent to 150% of the exclusive area was entitled to compensate for the exclusive area, and under the second agreement, a new shop with an existing shop equivalent to 260% of the exclusive area was entitled to compensate for the sale area. The ratio of the exclusive area from the sale area of a newly constructed shop shop members to the sale area is 6.35%, which is about 6.35%, and the compensation ratio as stipulated in the second agreement is about 172% if the new shop members converted the exclusive area based on the newly constructed shop price.

5) Comprehensively, Nonparty 15 and 16 of the sectional owners, non-party 12, 13, 14, and 7 of the sectional owners of non-party 101 and the sectional owners of non-party 15 and 16 of the Agricultural and Fishery Products Award did not appoint a representative under Article 7(3) of the Union Regulations, but all of the members of these commercial buildings signed Eul-5 of the Union Regulations. The members of these commercial buildings can be deemed to have consented to the above division. The non-party 1, 11, 17, 18, 19, 19, 20, 21, 22, and 23 of the non-party 1 and the non-party 13 of the above division, who naturally holds the status of the union member, have signed the evidence No. 8-5 of the above division to the effect that the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the co-party 3 of the above division (refer No. 13).