(영문) 광주고등법원 2019.5.30.선고 2018누5955 판결

2. Of the appeal costs, the part pertaining to the participation by the Plaintiff’s Intervenor is borne by the Intervenor, and the remainder is borne by the Plaintiffs.

Purport of claim and appeal

The judgment of the court of first instance is revoked. The defendant confirmed that the defendant's disposition of authorization to establish a housing redevelopment and consolidation project association was invalid on September 18, 2015 to the Committee for the Promotion of the Establishment of the Housing Redevelopment and Improvement Project Association in Bal

Reasons

1. Details of the disposition;

A. On March 28, 2015, the Promotion Committee for the Establishment of the Housing Redevelopment Project Partnership (hereinafter referred to as the “Promotion Committee of this case”) held an inaugural general meeting of the Association.

B. On April 8, 2015, the instant promotion committee filed an application for authorization to establish an association with the Defendant, and the Defendant rejected the said application on the grounds that the agreement on July 6, 2015 falls short of the consent rate of at least 75 percent (3/4) of the owners of land, etc., as stipulated in the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 13378, Jun. 22, 2015; hereinafter “Urban Improvement Act”).

C. On August 17, 2015, the instant promotion committee supplemented the written consent, etc., and agreed by 1,783 of the owners of land, etc. to establish an association, and the consent ratio is 75.39%, and applied for authorization to establish an association to the Defendant (hereinafter “instant application”).

D. On September 18, 2015, the Defendant approved the establishment of the Intervenor joining the Defendant on the ground that 1,775 of the owners of land, etc. 2,365 agreed to establish an association and the consent ratio was 75.05% (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 2, 3, Eul evidence 11 (including numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs' assertion

The instant disposition is premised on the premise that the number of owners of land, etc. 2,365, number of consenters 1,775, and rate of consent 75.05% are 2,365, and that the Defendant calculated such rate of consent, as seen earlier, is obvious that there is any defect in the part where the Defendant calculated such rate of consent, and that the rate of consent is less than 75% considering such defect. Nevertheless, the Defendant rendered the instant disposition by deeming that the ratio of consent necessary for establishing an association has been satisfied. The instant disposition is null and void because its defect is obvious.

B. Defendant’s assertion

1) Not only does there is no defect in the calculation of the respective consent rates asserted by the Plaintiff, but rather, 14 persons should be added to the number of consenters, given that the Defendant did not reflect the written consent of 14 persons supplemented before the instant application in calculating the aforementioned consent rate. Therefore, the number of owners of land, etc. is 2,365 persons and 1,789 persons, and the number of consenters is 1,789 persons, and the consent rate is 75.64%, so the instant disposition is reasonable.

2) Even if some defects exist in the part on which the Defendant calculated the consent rate and the consent rate falls short of 75%, such defects cannot be deemed serious or obvious.

3. Relevant statutes;

The court's explanation on this part is the same as the corresponding part of the reasoning of the judgment of the court of first instance, and therefore, it is citing this in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

4. Determination on the defense prior to the merits

5. Determination on the consent ratio of the owners of land, etc. - (a) - individual determination by the owner of land, etc.

C. Sub-committee

Comprehensively taking account of the following, the number of owners of land, etc. is 2,378 and the number of consenters is 1,782. As such, the ratio of consent is about 74.94% (i.e., 1,782/2,378).

A person shall be appointed.

6. Determination as to the invalidity of the instant disposition

A. Relevant legal principles

In order for a defective administrative disposition to be null and void as a matter of course, it must be objectively obvious that the defect is in violation of the important part of the law, and should be objectively clear. In determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective and reasonable consideration should also be made on the specificity of the specific case itself at that time. In a case where an administrative agency has taken an administrative disposition with respect to a certain legal relation or fact by applying a certain provision of a law, the legal principles as to the legal relation or fact cannot be applied in a case where an administrative agency has taken a certain measure with respect to a certain legal relation or fact, and there is no room for dispute over the interpretation thereof, it shall be deemed that the defect is significant and obvious if the administrative agency did so by applying the above provision, notwithstanding the clear legal principles as to the legal relation or fact relations, and if there is a room for dispute over the interpretation thereof, it shall not be said that the administrative disposition was erroneous and misleading as to the requirements for the disposition (see, e.g., Supreme Court en banc Decision 94Nu615207Du125215.

B. In the instant case

Although the Defendant calculated the consent rate of 75.05% and issued the instant disposition, as seen earlier, it constitutes approximately 74.94% when re-calculated the consent rate in a lawful manner and falls short of 75%, which is necessary for the establishment of the association, and there is a defect in the instant disposition.

However, the consent rate of the establishment of the association in this case is about 74.94%, which is merely about 75% of the consent rate necessary for the establishment of the association, and about 0.06% of the total number of members of the association (i.e., the reduction of 20,000 people in total by 2378 shall meet 75% of the consent rate). Under the premise that the establishment of the association is valid, it is highly difficult to deem that the defect is significant solely on the basis that the subsequent business is conducted considerably under the premise that the rights and obligations of many people are complicatedly formed, and that it is highly likely to undermine predictability in legal relations and legal stability surrounding the rearrangement project.

In addition, in calculating the consent rate at the time of the instant disposition, in particular, where only a part of the land and the aggregate building on which an aggregate building exists in relation to the trimanization is included in the rearrangement zone, there is room for dispute over the interpretation of the legal principles as to the method of calculating the number of owners of the land, etc. (referring to the portion which has a fixed influence on whether the number of owners of the land, etc. is met with 75% or not due to an increase in the number of owners of the land, etc.). Thus, even though the Defendant did not interpret it well and issued an administrative disposition, it cannot be said that there is a defect even if the Defendant did not have any defect even if it did so, it is evident that the part of the Plaintiff’s assertion added in this court (this part also affects the determination on whether the number of owners of the land, etc. has increased by 10 persons and the number of consenterss is met with 75% due to a decrease in the number of owners of the land, etc.).

Therefore, although there exists any defect as seen earlier in the disposition of this case, it is difficult to view that the defect as a matter of course is null and void because it is serious.

7. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance is just in this conclusion, and therefore, the plaintiffs' appeal is dismissed.