[1] The purport of the proviso of Article 28 (4) and Article 28 (5) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas

[2] In a case where the contents of a written consent, including the matters under each subparagraph of Article 26 (2) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, are partially modified, but it is recognized as identical to the previous written consent by social norms (affirmative), and whether the owner of a plot of land, etc

[1] Article 28(4) proviso to Article 26(2) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 24007, Jul. 31, 2012); Article 28(5) provides that the consent of an association cannot be withdrawn if the matters under each subparagraph of Article 26(2) are not modified; Article 28(5) provides that the withdrawal of consent shall be made by means of issuing a certificate of the personal seal impression attached thereto; however, the legislative purport of the legislative purport is to prevent unnecessary administrative consumption of the verification power by preventing the procedure that has been taken place after the application for the establishment approval from being filed by some members of the association; to prevent disputes among the related persons that may arise regarding the withdrawal of consent by clarifying the withdrawal of consent of the owners of land, etc.; and further, to prevent the administrative agency from withdrawing the consent only by the written withdrawal of consent submitted prior to the application for the establishment approval.

[2] Even if the contents of a written consent, including the matters under the subparagraphs of Article 26(2) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (wholly amended by Presidential Decree No. 24007, Jul. 31, 2012), are partially modified, where it is deemed that it is identical to the previous written consent under social norms, the consent under the previous written consent still remains valid as the consent for approving the establishment of an association under the modified contents,

[1] Articles 26(2) and 28(4) and (5) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 24007, Jul. 31, 2012) / [2] Articles 26(2) and 28(4) and (5) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 24007, Jul. 31, 2012)

[1] Supreme Court Decision 2010Du28649 Decided September 27, 2012 / [2] Supreme Court Decision 2003Da56441 Decided June 24, 2005

Plaintiff (Appointed Party)

(Appointedd Party) Plaintiff 1 et al. and two others

The head of Seodaemun-gu Seoul Metropolitan Government

Hong Dong-dong Housing Reconstruction and Improvement Project Association (Law Firm Hannuri, Attorneys Kim Sang-won, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2011Nu28006 decided May 25, 2012

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. The former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 11293, Feb. 1, 2012; hereinafter “former Act”) provides that when the committee for the promotion of housing redevelopment projects and urban environment rearrangement projects intends to establish or alter the matters authorized, it shall obtain authorization from the head of a Si/Gun, along with the consent of at least 3/4 of the owners of a plot of land, etc. and at least 1/2 of the area of land: Provided, That where it intends to modify minor matters prescribed by Presidential Decree among the authorized matters, it shall be permitted to make a report thereon to the head of a Gun without the consent of its members (Article 16(1)); the withdrawal of consent or consent to establish an association shall be accompanied by a document using a seal imprint; the method and procedure for calculating the number of consenters of owners of a plot of land, etc. pursuant to Article 17(2) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Areas and Dwelling Conditions (amended by Presidential Decree No. 2716, etc.).

2. The legislative purpose of Article 28(4) proviso of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions is to prevent the withdrawal of consent if the consent is not modified, and Article 28(5) of the Act provides that the withdrawal of consent is made by means of sending a certificate of the contents attached to a certificate of the personal seal impression. In addition, the legislative purpose of the Act is to prevent disputes between the owners of a plot of land, etc. regarding the withdrawal of consent by clarifying the withdrawal of consent from the owners of a plot of land, etc., and to prevent unnecessary administrative means to confirm whether consent is given by allowing an administrative agency to examine the withdrawal of consent only based on the written withdrawal of consent submitted prior to the application for authorization for establishment (see Supreme Court Decision 2010Du28649, Sept. 27, 2012, etc.).

In addition, the content of the reconstruction project that should be reflected in the matters included in the consent form, which has a significant impact on the rights and obligations of the owners of land, etc. and directly affects the determination of whether to consent to the establishment of an association. However, it is common that it is difficult to determine from the beginning the details of the consent form to reveal the specific form only after completion of the construction design or project plan, etc. in the process of step-by-stage formation of the reconstruction promotion committee's activities, gathering of opinions, preparation for establishment of the reconstruction association, compromise with the project owner, consultation with the project owner, etc., as it is difficult to determine from the beginning, and at the stage of approval of the project plan, it is difficult to avoid any change in the cost, etc. in the reconstruction project. The content of the consent form included in the former Enforcement Decree of the Act on the Maintenance of Urban Areas and Dwelling Conditions

Therefore, even if the contents of the contents of the consent form are partially modified, where it is recognized that the contents of the previous consent form are identical to those of the previous consent form under the social norms, the consent form under the previous consent form still remains valid as the consent form for approving the establishment of the association under the modified contents (see Supreme Court Decision 2003Da56441, Jun. 24, 2005). It is reasonable to interpret that the owners of lands, etc. cannot withdraw their

3. According to the reasoning of the lower judgment and the evidence duly admitted, the instant written consent submitted by the owners of land, etc. was written as a design outline for a new building. (1) The instant written consent was written as “34.817 square meters in the site area, 110,174.48 square meters in the total floor area, 10,174.48 square meters in the apartment ( underground 3 stories, 7-20 floors on the ground) and 540 residential facilities, etc. with 10 Dong-dong 540 square meters in the apartment (other than 540 residential facilities, etc.). In addition, the materials distributed at the time of the residents’ general meeting on June 21, 2009 were written as 60 square meters in the resident’s sports facilities, and the underground portion among the resident’s sports facilities was 70 square meters in the first and second inaugural general meeting on May 30, 2010, the total floor area was 110,12464.25 square meters in each 26361 square meters in the building area as above.

However, compared to the written consent of this case, considering the design outline of a new building as stated in the project implementation plan ratified by the above general meeting, there is no change in the number of apartment buildings, the number of floors, the number of households, and the area of the site, and ② The total floor area decreases by only 50.02 square meters, which is limited to 0.045 percent, ③ the common facilities for residents are reduced by only 50 square meters and the underground portion among resident sports facilities is limited to 50 square meters, ④ the increased building area is limited to 3%, and the increased building area is limited to 186.54 square meters, and the increased building ratio is 0.76% and the increased building ratio is only 3.3

Examining these circumstances in light of the legal principles as seen earlier, although the design outline of the new building was partially modified after the written consent of this case, the degree of modification is very low, and thus, the identity is recognized between the design outline of the new building before and after the modification of social norms. Thus, the consent of this case under the written consent of this case is valid as the consent for the establishment of the association of this case reflecting the above modification, and even before the application for the establishment of the association of this case, the owners of land, etc.

4. Nevertheless, the lower court determined otherwise, on the premise that the withdrawal of consent from nine owners of land, etc., including the Nonparty, is valid, to be excluded from the number of consenters to the establishment of the instant association, without considering other circumstances, if any change is made to the matters included in the consent form.

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the identity and withdrawal of consent to the establishment of an association, which affected the conclusion of the judgment. The ground of appeal assigning this error has merit.

Meanwhile, on the other hand, the Plaintiff (Appointed) and the Plaintiff’s Intervenor asserted that the effect of withdrawal of consent should be recognized on the ground that the Defendant’s Intervenor submitted a design modification proposal regarding the construction of a small apartment rather than a rental apartment on June 1, 201, not a rental apartment, on the grounds that the outline of the design of the building to be built and the outline of the cost required for the removal and construction of the building should be modified to the extent that it is not recognized as identical to the content of the previous consent. However, this is merely an assertion of the validity of withdrawal of consent on the ground of ex post facto circumstances arising after the application for revocation of consent

5. Therefore, without examining the remaining grounds of appeal, we reverse the judgment of the court below, and remand the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment 1] List of Appointors (Plaintiffs): Omitted

[Attachment 2] List of Appointeds (Plaintiff’s Intervenor): omitted

Justices Shin Young-chul (Presiding Justice)