208Guhap3029 Revocation of a management and disposition plan

00

○○ Housing Development and Improvement Project Association

December 12, 2008

February 13, 2009

1. The part against the plaintiffs in the management and disposal plan rendered on October 29, 2007 by the defendant shall be revoked.

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

The primary purport of the claim is as shown in the text of the claim.

Preliminary claim: The Defendant’s previous assets of Plaintiff ○○○ in the management and disposition plan on October 29, 2007.

The portion of the appraised value of KRW 465, 540, 480 shall be revoked.

1. Details of the disposition;

A. The defendant was established for the purpose of implementing the Housing Redevelopment Improvement Project (hereinafter referred to as the "Projects of this case") in Seoul ○○○○, and was authorized by the head of ○○○○ on October 31, 2006 for the partnership establishment, and the plaintiffs are the members of the defendant association.

B. On July 5, 2007, the Defendant Union obtained approval from the head of ○○○○○, Seoul, and made a public announcement of sale to its members on July 12, 2007, and received application for sale from its members from around that time to August 13, 2007.

C. On October 29, 2007, the Defendant Cooperative held a general meeting to formulate the instant management and disposition plan (hereinafter “instant general meeting”) and resolved on a management and disposition plan with the consent of 557 members from among 747 members (the consent of 527 members), and obtained authorization from the head of ○○○○-gu Seoul Special Metropolitan City around July 2008 (hereinafter “instant management and disposition plan”).

【Unsatisfyed Facts, Gap evidence Nos. 1 through 4, Eul evidence No. 8, Eul evidence No. 4, Eul evidence No. 7, Eul evidence No. 11-1, 2, Eul evidence No. 12

2. Whether the instant management and disposition plan is lawful

A. The plaintiffs' assertion

1) The primary argument

The resolution of the general meeting of this case is null and void after the following defects exist. Thus, the part against the plaintiffs in the management and disposal plan of this case formulated by the above defect resolution should be revoked in an unlawful manner.

A) The Defendant Union did not undergo such procedures even though it individually notifies its members of the outlined amount of charges for each partner within 21 days from the date of the public notice of authorization to implement the project.

B) Before the Defendant Cooperative held the instant general meeting, the Defendant Cooperative mobilized its employees to gather written written consent from its members without notifying the members of “the estimated amount of the site or building to be sold to each person subject to parcelling-out and the expected amount of the previous land or building to each person subject to parcelling-out”. The members, without properly recognizing the most important matters to the members in the management and disposal plan, have prepared a written written written written consent with respect to the Defendant Cooperative. Ultimately, the resolution of the instant general meeting was adopted based on the written consent based on the defective expression of intent by the members.

C) A considerable number of the members of the Defendant Cooperative, without entering the general meeting, resolved on the management and disposal plan as above by continuing the general meeting of this case.

D) Despite the fact that the selection of the removal company and the contractor is subject to the resolution of the general meeting of partners, the Defendant Union determined that “the estimated amount of the maintenance company operating expenses” was determined based on the construction expenses, etc. calculated by the contracts that were or are scheduled to be concluded between the removal company and the contractor at the general meeting of residents other than the general meeting of partners, and resolved as the contents of the management and disposition plan.

E) Although the Defendant Union has to make a copy of the relevant documents available for public inspection for at least 30 days before obtaining the authorization on the above-mentioned management and disposition plan, the Defendant Union’s request for allowing the members to peruse the above-mentioned related documents was silent.

2) Preliminary assertion

An appraisal corporation that has assessed the “price of the previous land or a building for each subject of sale” included in the instant management and disposition plan, shall select a comparative standard in appraising the previous land or building water owned by Plaintiff ○○○○○○○, and assess the assessed value of Plaintiff ○○○○○○○’s previous asset at KRW 465, 540, 480, respectively. As such, in the instant management and disposition plan, the portion of the assessed value of Plaintiff ○○○○○○’s previous asset value of KRW 465, 540, 480, calculated based on the results of the illegal appraisal and assessment, and shall be revoked illegally.

(b) Relevant statutes;

Attached Acts and subordinate statutes, etc. shall be as listed.

(c) Facts of recognition;

1) On July 5, 2007, the Defendant Union obtained authorization for the implementation of the project of this case from the head of ○○○○○○, Seoul, and sent a written notice for application for parcelling-out to the members on July 12, 2007, stating the following matters, and the said notice was served to the members around that time.

(g) Outline of charges;

Members' charges shall be revenues and expenditures under the management and disposal plan and the total appraised value of the previous land and buildings;

The estimated ratio shall be calculated on the basis of the estimated ratio, and the expenses shall be calculated according to the previous land and buildings appraised.

I shall equally share the profits.

A person shall be appointed.

* The revenue and expenditure of the* is determined as a management and disposal plan as a rough estimate amount.

(i) Guidance for application for parcelling-out;

(2) The application for parcelling-out shall be the period for which the applicant wishes only, and the desired balance of the application.

Based on the appraisal (in progress) and construction costs of each member's land and buildings;

The general meeting of the management and disposal of estimated sales volume and charges of the final members by arranging counter-project expenses;

I have the honor to forward to each individual in the preceding paragraph (presumed October).

2) The Defendant Union had the ○○ appraisal corporation and the ○ appraisal corporation recommended by the head of the ○○○○○○○○, Seoul Metropolitan Government, to conduct each appraisal on “the estimated price of the site or building scheduled for sale by subject to sale and the price of the previous land or building by subject to sale,” and each of the above appraisal corporations notified the Defendant Union of the results of the appraisal before the general meeting of this case is held.

3) Prior to the opening of the instant general meeting, the Defendant Union distributed a draft of the management and disposal plan standard to its members. The draft of the management and disposal plan standard includes only the total appraised value of the previous land or buildings, which is not the appraised value by each person subject to parcelling-out, and only the estimated value of the land or buildings, which is not the estimated value by each person subject to parcelling-out, or the estimated value of each type of land or building, is included

4) Prior to the opening of the instant general meeting, the Defendant Union did not individually notify its members of “the estimated value of the site or structure scheduled for sale by each person subject to sale and the price of the previous land or structure for each person subject to sale,” and notified its members after the instant general meeting.

【Ground of recognition】 Evidence No. 3, Evidence No. 5-1, 2, evidence No. 6, evidence No. 1, evidence No. 9, evidence No. 10-1 and 2, each of the statements No. 10-2, and the purport of the whole pleadings

D. Determination

1) As to the plaintiffs' primary argument

A) In light of the following circumstances that can look at the overall purport of the pleading, namely, ① the shares of each association member can be specifically determined after the completion of the application for parcelling-out and the determination of the sub-party subject to subdivision, the person subject to liquidation, the sale volume, etc. under the management and disposal plan after the completion of the application for parcelling-out. Thus, the project implementer cannot be required to notify the union members of the outline of the charges at the stage of providing guidance on the application for parcelling-out. ② However, on July 12, 2007 after the date of the public notice of the authorization for the implementation of the project, the Defendant Union sent to the union members a written notice on the application for parcelling-out stating “each estimated amount of charges for revenue and construction works caused by the parcelling-out of apartment buildings, commercial buildings, etc., expenses for moving-out, removal, etc., and other business expenses, and so, the Defendant Union individually notified the union members of the outline of the charges under Article 4(1)6(1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to "City Act").

B) Therefore, this part of the plaintiffs' assertion is without merit.

2) As to the second Plaintiffs’ primary argument

A) Article 24(3) of the Do administration and disposal plan provides that "the formulation of a management and disposal plan shall undergo the resolution of a general meeting," and Article 48(1) of the Do administration and management plan provides that "the project implementer shall establish a management and disposal plan including the estimated amount of the site or structure scheduled for parcelling-out, the details of the previous land or structure scheduled for parcelling-out, and the price, etc. as of the date of the announcement of the authorization for project implementation based on the current status of sub-applications, and the date of the announcement of the authorization for project implementation based on the details of the previous land or structure scheduled for parcelling-out and the date of the announcement of the authorization for project implementation, and Article 48(5) provides that "the estimated amount of the site or structure scheduled for parcelling-out in the housing redevelopment project shall be calculated by taking into account the appraisal opinion of two or more appraisal business entities recommended by the head of the Si/Gun, and the price of the previous land or structure for each person

B) The above facts are as follows. ① Even if the project implementer does not expressly stipulate that “the estimated amount of the site or structure scheduled for parcelling-out and the price of the previous land or structure scheduled for parcelling-out by each member of the association shall be determined by the following circumstances: (i) the project implementer shall notify the members of the price of the land or structure scheduled for parcelling-out and the price of the previous land or structure scheduled for parcelling-out; (ii) the project implementer shall notify each member of the land or structure scheduled for parcelling-out, which is included in the management and disposition plan prior to the opening of the general meeting for the formulation of the management and disposition plan, stating that “each appraised value of the previous land or structure scheduled for parcelling-out by each member of the association and each member of the members of the association shall be determined by the following circumstances: (iii) the project implementer shall individually bear an obligation to the members of the association prior to the scheduled amount of the land or structure scheduled for parcelling-out under the management and disposition plan formulated by the general meeting; and (iv) the project implementer shall not be held by each member of the association before the final general meeting is held.”

C) Therefore, the plaintiffs' assertion pointing this out is with merit.

3. Conclusion

Therefore, without any need to separately examine the remaining arguments of the plaintiffs, the plaintiffs' primary claims of this case seeking the revocation of the part against the plaintiffs among the management and disposal plans of this case are with merit, so it is decided as per Disposition with the assent of all.

Judges Lee Dong-gu

Judge Lee Jin-soo

Level of judge

Related Acts and subordinate statutes

[Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents]

Article 24 (Convening of General Meetings and Matters for Resolution)

(3) The following matters shall undergo a resolution at a general meeting:

10. Formulation and alteration of the management and disposal plans under Article 48 (1) (Insignificant matters under the proviso of Article 48 (1));

excluding modifications)

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

(1) The project implementer shall make a public announcement of an authorization for project implementation under Article 28 (4).

the Corporation shall select a contractor under Article 11 and enter into a contract therefor) within 21 days from the date on which the contract is made;

Details, period of application for parcelling-out and other matters prescribed by Presidential Decree shall be notified to the owners of lands, etc.

the details of a site or building and other matters prescribed by Presidential Decree are published in a daily newspaper published in the relevant area.

shall be dismissed. In such cases, the period for filing the application for parcelling-out shall be from 30 days to 60 days from the date of notification thereof.

only, the project implementer is deemed not to impede the formulation of a management and disposal plan under Article 48 (1).

The period for application for parcelling-out may be extended within the extent of 20 days.

Article 48 (Authorization, etc. for Management and Disposal Plans)

(1) A project implementer (excluding a residential environment improvement project) shall complete the period for application for parcelling-out under Article 46.

The status of the application for parcelling-out under Article 46 before demolishing an existing building under this Act.

Based on yellow dust, a management and disposal plan including the following matters shall be established and approved by the head of the Si/Gun;

The same shall also apply to the modification, suspension, or abolition of a management and disposal plan: Provided, That the light prescribed by Presidential Decree shall also apply.

When intending to modify any insignificant matter, it shall be reported to the head of the Si/Gun.

3. Estimated amounts of the sites or structures scheduled for parcelling-out by person subject to parcelling-out;

4. Details of the previous land or buildings by person subject to parcelling-out and the date of public announcement of authorization to implement the project;

Price

5. Estimated amounts of the rearrangement project costs, and the sharing size and sharing period for the partnership members following thereto;

(5) When the property under paragraph (1) 3 and 4 is appraised in the housing redevelopment project, the methods falling under each of the following subparagraphs:

shall be governed by the Act.

1. The estimated value of a site or structure scheduled for sale under paragraph (1) 3 shall be calculated, as prescribed by municipal ordinance of a City/Do;

At least two appraisal businesses under the Public Notice of Values and Appraisal of Real Estate Act recommended by the head of a Si/Gun;

shall take into account the appraisal opinion of the person.

2. Price of the previous land or buildings among the matters provided for in paragraph (1) 4, shall be the real estate price recommended by the head of a Si/Gun.

Article 49 (Perusal of Management and Disposal Plans and Authorization Procedures, etc.)

(1) A project implementer shall make a copy of the relevant documents within 30 days before obtaining authorization for a management and disposal plan under Article 48.

It shall be made available to the owners of lands, etc. and hear their opinions.

(2) The head of a Si/Gun shall determine whether to grant authorization within 30 days from the date an application is filed for authorization of a management and disposal plan by a project implementer.

the project implementer shall be so notified.

(3) When the head of a Si/Gun approves a management and disposal plan under paragraph (2), he/she shall do so to the relevant local government.

shall be publicly announced in the official bulletin of the Council.

(4) When a project operator makes a public announcement under paragraph (3), he/she shall promptly determine methods and procedures prescribed by Presidential Decree.

The details of the management and disposal plan shall be notified to the applicant for parcelling-out under the management and disposal plan.

[Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas]

Article 53 (Matters to be Notified)

The project implementer shall, upon receipt of a public announcement under Article 49 (3) and (5) of the Act, notify the applicants for parcelling-out under paragraph (4) of the same Article of the following matters, and at the time of public announcement of the modification of a management and disposal plan, notify the details of the modification:

5. Details and prices of the existing land or buildings by person subject to parcelling-out, and the details of the sites or structures scheduled for parcelling-out; and

Estimated value

[Articles of Incorporation]

Article 53 (Perusal, etc. of Management and Disposal Plans)

(1) The Cooperative shall make a copy of the relevant documents available to its members for inspection for at least 30 days before obtaining authorization of the management and disposal

Each member shall be notified of the following matters:

1. Outline of the management and disposal plan;

2. Details of objects subject to sale, such as houses and housing site shares and area of shares;

3. Other matters concerning the rights, obligations, objection, etc. of members.

Article 54 (Notification, etc. of Management and Disposal Plans)

(1) Upon publication of the approval plan for the management and disposal plan, a cooperative shall apply for the following matters without delay:

notice shall be given to members.

5. Details and prices of the existing land or structures and the details of the land or structures scheduled for parcelling-out by person subject to parcelling-out;

and estimated value, end, and end.