(영문) 서울행정법원 2009.9.18.선고 2009구합10185 판결

2. A management and disposition plan formulated by Defendant ○○ Housing Redevelopment Development and Improvement Project Association at a general meeting on March 19, 2009 and its approval disposition issued on July 17, 2009 by the head of Dongdaemun-gu Seoul Metropolitan Government shall be revoked.

3. The costs of lawsuit shall be borne by each person;

Purport of claim

1. Management offices established at the general meeting of the association members on October 13, 2007 by Defendant ○○ Housing Redevelopment and Improvement Project Association;

The Sector Plan confirms that it is null and void.

2. The head of Dongdaemun-gu Seoul Metropolitan Government, on May 22, 2008, to Defendant ○ Housing Redevelopment and Improvement Project Association

I confirm that the disposition to authorize the management and disposal plan is invalid.

3. The text of paragraph (2) shall be as follows;

Reasons

1. Details of the disposition;

A. Defendant ○○ Housing Redevelopment and Rearrangement Project Association (hereinafter referred to as the “Defendant Cooperative”) obtained authorization for the establishment of a housing redevelopment project from the head of Dongdaemun-gu Seoul Metropolitan Government (hereinafter referred to as the “head of Dongdaemun-gu”) on October 2, 2006 for the purpose of implementing the housing redevelopment project for the OO-dong O-dong Group (hereinafter referred to as the “instant project”). The housing redevelopment project partnership approved on June 29, 2007 by the head of Dongdaemun-gu Seoul Metropolitan Government (hereinafter referred to as the “head of Dongdaemun-gu”). The Plaintiffs are members of the Defendant Cooperative that owns the housing within the instant project area.

B. The Defendant Union established a management and disposition plan including: (a) the total estimated expense rate of KRW 39, 907, 188, 436; (b) the estimated total expense rate of KRW 562,456,029, 887; and (c) the estimated total expense rate of KRW 391,513,81,012; and (b) the estimated expense rate of KRW 516% ((c) 516% of the estimated total expense of the owner of the land subject to sale / the previous appraised value of the owner of the land subject to sale / the land subject to sale 100); and (d) the management and disposition plan including any error in the calculation of the area of the land or constructed facilities to be sold, error in the sale price, other calculations, clerical errors, omission, omission, etc. (hereinafter referred to as the “the first management and disposition plan bill”).

C. On October 13, 2007, the Defendant Union held a general meeting of partners (hereinafter “general meeting of this case”) and passed a resolution on the instant management and disposal plan. For the prompt and efficient implementation of the instant project, the Defendant Union passed a resolution on the agenda to delegate the matters to the board of representatives to be deliberated and resolved upon by the board of representatives when there occurs any changes in the management and disposal plan according to the reflection of public opinion on the management and disposal plan, mistake, omission, etc.

D. From October 26, 2007 to November 24, 2007, the Defendant Cooperative held a management and disposition plan that included the following: (a) the adjusted adjusted the appraised value due to an appraisal error (24 items); (b) the association members’ errors in the collection system subject to sale (54 items); (c) the adjusted adjustment of the redemption target (8 items); and (d) the increased increase in the ordinary allocation of profits (9 items) the management and disposition plan; and (b) accordingly, the association’s gross income shall be estimated to be 56,82,616,62,667 won; and (d) the revised management and disposition plan to estimate the total appraised value of the land subject to sale to be 389,83,353,59 won; and (e) the revised management and disposition plan to 10% of the total appraised value of the land subject to sale to 10% as of October 17, 2017.

E. On November 30, 2007, the defendant union filed an application for approval of the management and disposal plan with the head of Dongdaemun-gu, where the estimated ratio of expenses was changed as above. The head of Dongdaemun-gu, which is the head of May 2008.

22. The instant management and disposition plan was approved (hereinafter referred to as the “first authorization”).

F. On December 23, 2008, the first administrative disposition plan and authorization were rendered to revoke the judgment on December 23, 2008, which did not go through the resolution of the members' general meeting and was rendered illegally due to the change in the estimated cost rate due to the defect in the appeal litigation (Seoul Administrative Court 2008Guhap30618). The appeal is currently pending.

G. On March 19, 2009, the defendant union held a general meeting of the partners and presented the amendment agenda of the management and disposal plan. The defendant union made a resolution on the first management and disposal plan which included the following: ① partial change of the composition of the person subject to parcelling-out and the person responsible for cash clearing; ② increase in the budget for human resources such as the Corporation supervisor; ③ decrease in the sales penalty and the estimated amount of expenses for registration for preservation; ④ adjustment of reserve funds and the conversion of the deferred portion into the general parcelling-out portion; and accordingly, the total income of the union was estimated to be KRW 956,81, 483, 585, KRW 56, KRW 586, KRW 56, and KRW 388,052, 518, and KRW 861, respectively; and accordingly, the estimated ratio of expenses was revised to 516% (hereinafter referred to as "the next management and disposal plan").

H. Around that time, the Defendant Cooperative applied for authorization on the second management and disposition plan to the head of Dongdaemun-gu, and the head of Dongdaemun-gu approved the second management and disposition plan on July 17, 2009 (hereinafter “the second authorization”).

【Unsatched Facts, Gap evidence 1, 4, Gap evidence 5-1, 2, Gap evidence 6, Eul evidence 7-1 through 3, Eul evidence 1 through 5, Eul evidence 6, Eul evidence 7-1, 2, Eul evidence 1, 7-2, Eul evidence 1, and the purport of the whole pleadings

2. Determination on this safety defense

A. The Defendant Union asserts that the part concerning the first management and disposal plan and authorization among the instant lawsuits is lawful, and the part concerning the first management and disposal plan and authorization among the instant lawsuits are newly established, and that the Plaintiffs do not have any legal interest in seeking confirmation of invalidity as the second management and disposal plan and authorization disposition are newly established.

In light of the following circumstances, i.e., ① the ratio of the first management and disposal plan to the second management and disposal plan, i.e., the ratio of the second management and disposal plan, i.e., the estimated total income of the association, which is the premise for calculating the proportional ratio, and the estimated amount of expenses required therefor, are different from the first management and disposal plan, ② the partial amendment of the composition of the object of sale and cash clearing among the union members, ③ the partial amendment of the composition of the first management and disposal plan, ③ the time interval between the general meeting of union members and the second management and disposal plan on Oct. 13, 2007, which was resolved on Oct. 19, 2009, which was considerably high between the members’ general meeting on Oct. 19, 2009 and the second management and disposal plan, ④ it is difficult to view the above amendment as a minor amendment under the proviso to Article 48 of the former Act, Article 49 of the Enforcement Decree of the same Act, and the second management and disposal plan as a new management and disposal plan.

Therefore, as long as the second management and disposition plan is established through a resolution of the general meeting, the first management and disposition plan and the revocation of authorization are sought, and the plaintiffs are not protected and relieved of the infringed rights and interests, or restitution to the original state without any illegality. Thus, the first management and disposition plan and the authorization of the second management and disposition plan in the lawsuit in this case are unlawful as there is no legal interest

B. Whether the part concerning the second management and disposal plan of the instant lawsuit is lawful

Under the second management and disposal plan, the defendant union asserts that there is no legal interest to dispute the defects of the second management and disposal plan concerning the members of the commercial building, because the amount of the plaintiffs' purchase standard value and charges is determined regardless of the amount of the appraised value and charges of the last asset that the members of the commercial building will be expected to receive in the future.

Comprehensively taking account of the purport of the entire arguments in each statement of evidence No. 6-1, evidence No. 6-2, evidence No. 8-1, and evidence No. 8-2, in the second management and disposal plan, the total appraised value of the site share, total floor space, site site and construction facilities scheduled for sale and the total appraised value of related revenues and construction, etc. shall be determined in the second management and disposal plan, and based thereon, the criteria for determining the priority of sale in commercial buildings shall be determined in accordance with the management and disposal plan of the incidental welfare facilities, such as commercial buildings, to be separately established within the total amount calculated by the method of calculating the estimated value of the site or construction facilities scheduled for sale, and the criteria for calculating the selling price shall be determined within the total amount calculated by the method of calculating the estimated value of the building site or construction facilities scheduled for sale. (3) In the case of the sale in lots by members, the detailed contents, such as the location and area of the facility to be sold in lots, shall be determined in accordance with the detailed plan for sale in lots.

Although the total assessment value, etc. of the commercial building was determined as above, it is only a simple estimated amount made without a specific sale design. As stipulated in the second management and disposal plan, if a new management and disposal plan related to the commercial building is formulated, the appraised value and construction cost of the commercial building to be constructed according to the new sale design may be fully changed, and the size of sales in lots to the general public and the size of sales in lots to the members of the commercial building is not determined. Thus, the proportional rate for the members of the apartment building including the plaintiffs, is likely to vary from the number set by the defendant union as the estimated amount at present.

Therefore, the above defects in the second management and disposition plan which did not set forth a specific management and disposition plan are affected by the rights and obligations of the plaintiffs. Thus, the plaintiffs are deemed to have legal interests in seeking revocation of the second management and disposition plan and authorization. (The defendant union asserted to the purport that the application for modification of the purport of the claim as of August 18, 2009, which added the second management and disposition plan and the claim for revocation of authorization, is unlawful as the basis of the claim is not identical. However, this is without merit since the amendment was made after the administrative agency filed a lawsuit that is the subject of the lawsuit.) Accordingly, this part of the main safety objection of the defendant union is without merit.

3. Whether the second management and disposal plan and authorization are lawful;

A. The plaintiffs' assertion

The second management and disposal plan has a defect in not establishing the management and disposal plan for the commercial part, and the second approval is illegal, because there is a defect in recognizing the legality of the first approval by approving the first approval by the head of Dongdaemun-gu who has been notified that there is a defect in the second management and disposal plan for the commercial part even though the head of the defendant Dongdaemun-gu has not established the management and disposal plan for the second management and disposal plan, and the second approval is illegal.

B. Determination

1) Article 48(1) of the Urban Improvement Act provides that a plan of management and disposal to be established through a resolution of a general meeting shall include design for parcelling-out based on the current status of parcelling-out, address and name of a person eligible for parcelling-out, estimated amount of land or buildings scheduled for parcelling-out by person eligible for parcelling-out, details of the previous land or buildings for each person eligible for parcelling-out, and the price based on the date of the public notice of approval for project implementation, estimated amount of rearrangement project costs, and the amount of sharing and timing for sharing the association members accordingly. The plan of management and disposal is a plan of management and disposal to convert the previous rights of the owner of land, etc. into the right to claim for payment of liquidation money, and to realize the legal relationship as determined by the public notice of transfer. In addition, in consideration of the fact that each of the above matters based on the current status of the above application for parcelling-out, should be included in the contents thereof, and if such matters are omitted, it shall not be deemed that a legitimate management and disposal plan was established later with regard to the total estimated amount and estimated amount of the commercial buildings subject to parcelling-out.

In light of the above circumstances, with respect to the second management and disposition plan, the contents of the management and disposition plan are not included under Article 48 (1) of the Urban Improvement Act, and it is not established proper management and disposition plan. In case of establishing a new management and disposition plan related to the commercial buildings, the rights of the members of the multi-family housing unit should be partly modified, and the above defects are affected by the entire management and disposition plan of this case. Thus, the entire management and disposition plan of this case should be deemed unlawful.

In addition, the second approval is illegal as it is based on the violation of Article 48 (1) of the Act on the Maintenance and Improvement of Urban Areas.

4. Conclusion

Thus, the first management and disposal plan and the part seeking confirmation of invalidity of the authorization among the lawsuits in this case shall be dismissed as unlawful, and the second management and disposal plan and authorization shall be revoked as unlawful.

Judges

Judges OOOO-O

Judges OOO

참조조문

-도시 및 주거환경정비법 제48조 제1항

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