(영문) 광주지방법원 2019.3.21.선고 2018구합11647 판결

1. The part of the management and disposal plan authorized by the head of the Dong-gu Gwangju Metropolitan City on July 27, 2018 that the Defendant determined the Plaintiff as the object of cash settlement shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. The Defendant is a cooperative that implements a housing-based redevelopment project as a project implementation district using the area of Gwangju Dong-dong ***** Japan 126,43.6 square meters as a project implementation district. The Plaintiff is the owner of the Gu-dong 701-ro 701 square meters in Gwangju-gu, Gwangju-gu *-*-**-* (School Dong) 99 square meters in the above project implementation district, cement and brick, cement and one-story in the above ground, and 35.7 square meters in the cement and one-story in the above ground, and cement block structure and cement block structure and 6.28 square meters in a single-story roof.

B. On March 23, 2017, the Defendant sent a notice of application for parcelling-out to inform the Plaintiff of the application for parcelling-out from March 22, 2017 to May 20, 2017 for parcelling-out at the housing area reported to the Plaintiff’s address on the Mutual-Aid List for Management of Members, but the said notice was not served on the Plaintiff, but returned to the Defendant, and the Defendant did not send a general mail to the Plaintiff.

C. Since then, the Defendant extended the period for application for the above application for parcelling-out from May 21, 2017 to May 30, 2017, but such notice was not sent to the Plaintiff.

D. On July 27, 2018, the Defendant established a management and disposal plan that designates the Plaintiff as a person subject to cash settlement (hereinafter referred to as the “management and disposal plan of this case”), and received a provisional approval from the head of the Dong-gu, Gwangju Metropolitan City.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, and 5 (including branch numbers, if any; hereinafter the same shall apply), Eul evidence 1, 2, and 6, the purport of the whole pleadings

2. The plaintiff's assertion

Since the Defendant violated the obligation to faithfully notify the application for parcelling-out, the Plaintiff failed to file an application for parcelling-out. Therefore, the part of the instant management and disposal plan which determined the Plaintiff as the object of cash settlement is unlawful.

3. Relevant statutes;

As shown in the attached Form.

4. Determination

A. Procedures, such as making an application for parcelling-out under Article 46(1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (wholly amended by Act No. 14567, Feb. 8, 2017; hereinafter referred to as the “Urban Improvement Act”), are necessary procedures to establish a management and disposal plan under Article 48(1) of the Urban Improvement Act, which is to guarantee the opportunity for applying for parcelling-out to the owners of lands, etc. within the redevelopment area. In the event that an redevelopment association, which is a project implementer, notifies the applicants for parcelling-out, etc., the procedures for notification, etc. should be conducted in accordance with the provisions of the Articles of association of the redevelopment association prescribed by the Urban Improvement Act and the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (wholly amended by Act No. 14567, Jan. 27, 2011).

B. According to the statement in Gap evidence No. 7 of the defendant's articles of association, Article 7 (2) 1 and 4 of the defendant's articles of association provides that "in notifying union members of the matters concerning the rights and obligations of union members (including the changed matters) by registered mail shall be individually notified to union members, and in cases where registered mail is returned due to the unknown address or the refusal to receive the registered mail, the registered mail shall be additionally sent only once, and in such cases, the registered mail shall be deemed to have been notified on the date the registered mail was sent." This provision of the articles of association provides that "if the matters concerning the rights and obligations of union members are sent to legitimate service places, such as the member's domicile, but it is impossible to deliver them by registered mail, the notification shall be deemed to have been sent by ordinary mail once more (see Supreme Court Decision 2011Du2446, Nov. 13, 2014).

However, since the defendant sent the notice for application for parcelling-out to the plaintiff by registered mail and returned it, and the fact that the notice for extension of the period for application for parcelling-out is recognized as above, the defendant did not go through the procedure of notification as stipulated in the articles of incorporation to the plaintiff.

Therefore, in the management and disposal plan of this case, the part which designated the plaintiff as the object of cash liquidation shall be revoked as unlawful.

5. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.

Judges

Freeboard (Presiding Judge)

Oral Bas

Maximumpha

Site of separate sheet

Relevant statutes

C. The Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (wholly amended by Act No. 14567, Feb. 8, 2017)

Article 46 (Public Notice of Sale in Lots and Application for Sale in Lots)

(1) Any project implementer shall notify the owners of lands, etc. of the outlined charges, the period for application for parcelling-out, and other matters as prescribed by the Presidential Decree, within 60 days from the date of public announcement of an authorization for project implementation under Article 28 (4) (the date of concluding a contract with the constructor where the contractor has been selected), and publicly announce in a daily newspaper published in the relevant area the details of sites or structures subject to parcelling-out, etc. In this case, the period for application for parcelling-out shall be from 30 days to 60 days from the date of notification of the application for parcelling-out: Provided, That where the project implementer deems that there is no difficulty in formulating an administrative disposition plan under Article 48 (1),

Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (wholly amended by Presidential Decree No. 28628, Feb. 9, 2018)

Article 47 (Procedures, etc. for Application for Parcelling-Out)

(1) Pursuant to Article 46 (1) of the Act, a project implementer shall notify the owners of land, etc. of the following matters within 60 days from the date of public announcement of authorization for the implementation of a project under Article 28 (4) of the Act, and publicly announce the following matters in a daily newspaper published in the relevant branch. In such cases, matters under subparagraph 9 shall not be notified, and matters under subparagraphs 3

1. Details of authorization for project implementation;

2. The type and name of the rearrangement project and the location and area of the rearrangement zone;

3. Application Form -

4. Period and place for application for parcelling-out;

5. Details of the sites or structures subject to parcelling-out;

6. Outline of charges;

7. Qualifications for application for parcelling-out;

8. Application method for parcelling-out;

9. Method of reporting rights by right holders other than the owners of lands;

10. Measures for those who fail to apply for parcelling-out;

11. Other matters prescribed by Provincial Ordinance of a Si/Do.

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