Where an administrative agency approves modification of minor matters as stipulated in the subparagraphs of Article 27 of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents after the administrative agency's disposition of approval of establishment of redevelopment partnership, whether the initial disposition of approval of modification can be absorption into the disposition of approval (negative)

An administrative agency’s disposition of approving the establishment of a redevelopment association is a kind of authoritative disposition that grants a status as an administrative subject to a housing redevelopment project’s promotion committee if it satisfies the specific requirements under the law. Article 16(1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785, Dec. 21, 2007) requires the same requirements and procedures as the disposition of approving the establishment. However, even if an administrative agency made a disposition of approving the establishment of a redevelopment association in the form of a change of minor matters as stipulated in each subparagraph of Article 27 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. 21171, Dec. 17, 2008), the nature of the administrative agency should be deemed as merely accepting a report of the modification of minor matters as stipulated in the above Article, separate from the original disposition of approving the establishment. Therefore, it does not mean a disposition of approving the establishment of an association.

Article 16 (1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785 of December 21, 2007), Article 27 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. 21171 of December 17, 2008)

Plaintiff (Attorney Han-chul et al., Counsel for the plaintiff-appellant)

Plaintiff’s Intervenor (Attorney Han Han-chul, Counsel for the plaintiff’s intervenor)

Head of Jung-gu, Daejeon Metropolitan City (Attorney Kim-type et al., Counsel for the defendant-appellant)

Daegu District Housing Redevelopment and Improvement Project Association (Law Firm Rate, Attorneys Kim Young-hoon, Counsel for the plaintiff-appellant)

Daejeon High Court Decision 2007Nu2355 Decided February 12, 2009

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

We examine the first ground for appeal.

1. According to the reasoning of the lower judgment and the record, the Defendant issued a disposition to grant authorization to establish the Intervenor’s Intervenor (hereinafter “ Intervenor”) pursuant to Article 16(1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785, Dec. 21, 2007; hereinafter “former Act”) on July 31, 2006 (hereinafter “instant disposition to grant authorization for establishment”). On April 2, 2007, the number of landowners, etc. was changed due to the transfer of rights from the Intervenor to the purchase and sale of buildings such as land, etc., and the number of consenters was changed on the ground that the number of consenters was changed. On June 5, 2006, the Intervenor added four owners of land, etc., and 12 consenters in the number of consenters, etc. in the rearrangement zone, and changed the rate of authorization to establish the association by 311 and 260% (hereinafter “the consent”).

The court below rejected the claim of this case on the ground that there was no benefit of lawsuit, and determined whether the part disputing the validity of the authorization of establishment among the claim of this case was justifiable, and the validity of the authorization of establishment was just because it did not change only the part exceeding the owner of land and the person with consent, but also the part disputing the validity of the authorization of establishment was dismissed on the ground that there was no benefit of lawsuit, so long as the authorization of establishment exists.

2. According to Article 16(1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 21171, Dec. 17, 2008; hereinafter “former Enforcement Decree of the Act”), when a promotion committee for a housing redevelopment project intends to establish an association, it shall obtain authorization from the head of a Si/Gun with the consent of at least 4/5 of the owners of the land, etc., and shall also apply when it intends to modify the authorized matters: Provided, That where it intends to modify minor matters prescribed by Presidential Decree, it shall make a report and change to the head of a Si/Gun without the consent of the association members. Article 27 of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “former Enforcement Decree of the Act”). Article 16(1) proviso of the Act provides that the name of the association, the address and name of the head of the association, and the head of a Si/Gun where the rights of association members have been transferred due to the sale of a building, such as land after the approval for establishment.

Meanwhile, an administrative agency’s disposition of approving the establishment of a redevelopment partnership is a kind of authoritative disposition that grants a status as an administrative body to a housing redevelopment project promotion committee (see Supreme Court Decision 2009Da30427, Oct. 15, 2009). Article 16(1) of the Urban Improvement Act requires that the same requirement and procedure as the disposition of approving the establishment of a partnership should be met when changing the contents of the authorization (see Supreme Court Decision 2009Da30427, Oct. 15, 2009). However, even if an administrative agency rendered a disposition of changing minor matters under each subparagraph of Article 27 of the former Enforcement Decree of the Urban Improvement Act, which does not require the same requirement and procedure as the disposition of approving the establishment of a partnership, its nature is nothing more than accepting a report of changing insignificant matters, separate from the originally disposition of approving the establishment of a partnership. Therefore, it is not a disposition of approving the establishment of a partnership.

In light of the aforementioned legal principles, the instant modified disposition is merely on the ground that the rights of association members have been transferred or the number of consenters has been changed due to the sale and purchase of a building, such as land, etc., and the instant modified disposition is merely the meaning of accepting a report on the modification of insignificant matters as prescribed by Article 27 subparag. 2 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents. Therefore, the lower court’s determination that the instant modified disposition was incorporated into the instant modified disposition was erroneous by misapprehending the legal doctrine on the authorization for establishment and the authorization for modification thereof.

3. Therefore, without further proceeding to decide on the remainder of the Plaintiff’s grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)