Whether a reconstruction association can exercise a right to demand sale against a person subject to cash liquidation by applying mutatis mutandis Article 39 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (affirmative), and where a dispute arises between a reconstruction association and its members before and after the period for application for parcelling-out and it is impossible for its members to make an application

Where a partner becomes eligible for cash liquidation as stipulated in Article 47 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”), such as failing to file an application for parcelling-out or withdrawing an application for parcelling-out, and as a partner becomes eligible for cash liquidation, a reconstruction association may file an application for the registration of ownership transfer of real estate in an improvement zone by applying mutatis mutandis Article 39 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”). In such cases, the time when the obligation to pay settlement money for a person subject to cash liquidation arises shall be the following day of the period of application for parcelling-out, unless there are special circumstances. However, where a dispute between a reconstruction association and its members before and after the period of application for parcelling-out is unable to file an application for parcelling-out, it shall be deemed that a member who becomes eligible for cash liquidation when he loses the status of a person subject to parcelling-out due to such reasons as not finally filing an application for parcelling-out, and it shall be deemed that the establishment date of sales contract is deemed as applicable mutatis mutandis in accordance with Article 39 of the Act.

Articles 39, 46, 47 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Article 48 of the Act on the Ownership and Management of Aggregate Buildings

Supreme Court Decision 2008Da37780 Decided October 9, 2008 (Gong2008Ha, 1544), Supreme Court Decision 2009Da81203 Decided August 19, 2010, Supreme Court Decision 2010Da73215 Decided December 23, 2010 (Gong201Sang, 226)

The Nam-gu Seoul Metropolitan Government Reconstruction Housing Association (Attorney Gyeong-soo et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Kim Dong-jin, Counsel for defendant-appellant)

Seoul Southern District Court Decision 2010Na6210 decided December 30, 2010

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. A reconstruction association which is a project implementer of a housing reconstruction project is established and registered by the authorization and registration of the establishment of the competent administrative agency, and the consent of owners, such as land for the establishment of the association (hereinafter “association establishment resolution”) is only one of the procedural requirements necessary to take an administrative disposition, such as the authorization for establishment of the association. Thus, even if there is a defect in the establishment resolution, the reconstruction association still holds the status as a project implementer unless the disposition for establishment of the association is revoked or null and void as a result, and the reconstruction association still holds the status as a project implementer. In addition, after the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”) enters into force, the reconstruction resolution does not immediately affect the alteration of rights to its members. Thus, such reconstruction resolution does not have an independent meaning from the project implementation plan resolution, etc.. Thus, even if the owners of land, etc., who agreed to establish the association did not consent to a new reconstruction resolution in preparation for the allegation that there is a defect in the establishment resolution prior to the authorization for establishment.

However, in cases where a partner becomes eligible for cash settlement because he/she falls under the requirements prescribed in Article 47 of the Act on the Maintenance and Improvement of Urban Areas and the articles of association, such as failing to apply for parcelling-out or withdrawing an application for parcelling-out, etc., he/she shall lose his/her membership (see Supreme Court Decision 2009Da81203, Aug. 19, 2010). As such, a reconstruction association may apply mutatis mutandis Article 39 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents to file an application for parcelling-out against a person subject to cash settlement for the registration of ownership transfer of real estate in an improvement zone (see Supreme Court Decision 2010Da73215, Dec. 23, 2010). In such cases, the time when the obligation to pay liquidation money for a person subject to cash settlement arises shall be deemed to be the "date after the expiration of the period of application for parcelling-out," as stipulated by the project implementer, but it shall not be deemed that the price of the person subject to parcelling-out and the sale of land should be determined.

2. According to the reasoning of the judgment of the first instance as cited by the court below and the records, the non-party consented to the first reconstruction resolution concerning the establishment of the plaintiff association. The plaintiff association obtained authorization of a reconstruction association from the competent administrative agency on February 11, 2000, the defendant purchased the apartment house from the above non-party on December 28, 2001 and completed the registration of ownership transfer. On October 2005, the plaintiff association newly prepared a written consent form for reconstruction and completed the second reconstruction resolution, but the defendant did not consent to the second reconstruction resolution. The defendant submitted an application form for parcelling-out around June 2006, which was within the period for parcelling-out, but returned it to the defendant on the ground that the plaintiff association was not a member by the defendant on June 1, 2006, and thereafter, the plaintiff association did not participate in the rebuilding of the plaintiff association on July 16, 2009, the plaintiff association rejected the plaintiff's claim against the defendant on July 16, 2009.

In light of the above facts in light of the legal principles as seen earlier, the non-party consented to the first reconstruction resolution, and acquired the status of the association member by obtaining authorization for establishment of the plaintiff association, and the defendant succeeded to the status of the association member from the non-party, and the defendant does not lose the status of the association member merely because the defendant did not consent to the second reconstruction resolution. However, since the plaintiff union and the defendant could not make an application for parcelling-out before and after the period for application for parcelling-out, there was a circumstance that the defendant could not make an application for parcelling-out in dispute between the plaintiff union and the defendant, and the plaintiff union provided an additional opportunity to participate in rebuilding, but the defendant refuses it. Thus, the defendant is subject to cash liquidation by losing the status of the association member, and the defendant, who is subject to cash liquidation, is obligated to pay the liquidation money from the plaintiff on October 27, 2009, and at the

Therefore, the court below is just in holding that the defendant, who did not consent to the establishment of an association, becomes the subject of the exercise of the right to demand sale under Article 39 of the Act on the Maintenance of Urban Areas and Dwelling Conditions for Residents, but can exercise the right to demand sale by applying Article 39 of the Act on the Maintenance of Urban Areas and Dwelling Conditions for Residents, and there is no regulation under Article 48 of the Act on the Ownership and Management of Aggregate Buildings, which applies mutatis mutandis under Article 39 of the Act on the Ownership and Management of Aggregate Buildings with respect to the exercise of the right to demand sale. Thus, the court below's conclusion that the defendant paid liquidation money to the plaintiff and ordered the plaintiff to transfer the ownership of the real estate of this case at the same time when he received liquidation money from the plaintiff is paid. contrary to the allegations in the grounds of appeal, there is no

The Supreme Court precedents cited by the Defendant as the grounds for final appeal are different from this case, and thus are inappropriate to be invoked in this case.

3. Conclusion

The appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)