[1] In a case where a lawsuit seeking the cancellation of a prior disposition is exchanged to a lawsuit seeking the cancellation of a prior disposition, and the subsequent disposition is changed to a lawsuit seeking the cancellation of a prior disposition, and the purport of seeking the cancellation of a prior disposition remains, the standard time for determining whether the period for filing a lawsuit seeking the cancellation of a prior disposition complies

[2] The meaning of "land or building owner" under Article 16 (3) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, which is stipulated in Article 16 (3) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents to establish a housing reconstruction association

[1] Under the Administrative Litigation Act, a litigation seeking revocation of a prior disposition shall be instituted within 90 days from the date on which a disposition, etc. is known, and no lawsuit shall be instituted after one year from the date on which the disposition, etc. is taken (Article 20(1) and (2) of the Administrative Litigation Act). Meanwhile, in cases where a claim for revocation of a prior disposition is altered on an exchange basis and a new lawsuit is deemed to have been withdrawn and a new lawsuit is deemed to have been instituted, compliance with the period for filing a lawsuit against a new lawsuit shall be determined as at the time of the alteration of the lawsuit in principle. However, if a lawsuit seeking revocation of a prior disposition is changed on an exchange basis with a lawsuit seeking revocation of the subsequent disposition, and the purport of seeking revocation of the prior disposition remains, if the lawsuit seeking revocation

[2] In light of the contents, form, and system of Article 16(2) and (3) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Areas and Dwelling Conditions for Residents”), it is reasonable to view that a committee for promotion of a housing reconstruction project should obtain consent under Article 16(2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Areas and Dwelling Conditions for Residents”), if a rearrangement zone consists of only a housing complex, only consent should be obtained under Article 16(2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents. ② Where an area which is not a housing complex is included in a rearrangement zone, a housing complex should obtain consent under Article 16(2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents; and ③ where a housing complex is not included in a rearrangement zone, a “land owner or building owner” under Article 16(3) of the Urban Areas and Dwelling Conditions for Residents should be construed to include not only the land owners and building owners, but only the land owners.

[1] Article 20 (1) and (2) of the Administrative Litigation Act / [2] Article 16 (2) and (3) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents

[1] Supreme Court Decision 2004Du7023 decided Nov. 25, 2004 (Gong2005Sang, 44) / [2] Supreme Court Decision 2010Du25107 decided Oct. 25, 2012 (Gong2012Ha, 1931)

Plaintiff 1 and two others (Attorney Lee Han-soo, Counsel for the plaintiff-appellant)

The head of Seodaemun-gu Seoul Metropolitan Government

Hong Dong-dong Housing Reconstruction and Improvement Project Association (Law Firm e-Myeon, Attorneys Choi Dong-dong et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Nu44926 decided October 6, 2011

All appeals are dismissed. The costs of appeal are assessed against the Defendant joining the Defendant.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A litigation seeking cancellation under the Administrative Litigation Act shall be instituted within 90 days from the date on which a disposition, etc. is known, and no lawsuit seeking cancellation of the preceding disposition shall be instituted after one year from the date on which the disposition, etc. is made (Article 20(1) and (2) of the Administrative Litigation Act). Meanwhile, in a case where a new lawsuit is deemed to have been withdrawn and a new lawsuit is deemed to have been instituted by changing a claim for cancellation of the preceding disposition on an exchange basis, compliance with the period for filing a lawsuit against a new lawsuit shall, in principle, be determined as at the time when the lawsuit is modified (see Supreme Court Decision 2004Du7023, Nov. 25, 2004, etc.). However, if a lawsuit seeking cancellation of the preceding disposition is changed in an exchange with a lawsuit seeking cancellation of the preceding disposition, and if it can be deemed that the purport of seeking cancellation of the preceding disposition remains, the period for filing

According to the records, the plaintiffs filed a lawsuit seeking revocation of the authorization of establishment of this case on December 11, 2009 within the filing period, but sought revocation of the authorization of this case from the first instance court to May 24, 2010, and subsequently exchanged the purport of the lawsuit. On June 1, 2011, the court below changed the purport of the claim by adding a claim seeking revocation of the authorization of this case again at the court below to add a claim seeking revocation of the authorization of this case.

Meanwhile, as examined in the determination on the fourth ground of appeal, the instant authorization disposition was based on the premise that the consent form was added only on the premise of the instant authorization form. This is not a new authorization form replacing the previous authorization form, but a “the meaning of accepting a report on modification of minor matters”. In addition, even upon examining the record, the Plaintiffs’ substantial dispute through the instant lawsuit is whether the instant authorization form disposition is unlawful, and the instant authorization form disposition is subject to incidental assertion and determination regarding the issues, such as whether the defect of the instant authorization form disposition was cured.

In addition, prior to the Supreme Court Decision 2009Du4555 Decided December 9, 2010, which stated that the plaintiffs submitted the document of "application for modification of the purport of the claim and the cause of the claim" for cancellation of the modification disposition of this case in the first instance court, "it shall not be deemed that the establishment authorization disposition, which is an authoritative disposition, is not absorption of the modification disposition, which is merely the meaning of accepting a report on modification of minor matters." Thus, it was difficult to determine whether the plaintiffs should be subject to the authorization of modification of whether the disposition seeking cancellation of this case should be subject to the authorization of establishment of this case.

In full view of the circumstances indicated in the record, even if the plaintiffs filed a lawsuit seeking the cancellation of the authorization of establishment of this case, and changed the lawsuit to seek the cancellation of the authorization of this case in the first instance court, the purport of seeking the cancellation of the authorization of this case remains. Therefore, the period of filing a lawsuit seeking the cancellation of the authorization of this case should be based on the time of filing the lawsuit of this case, regardless of the circumstances that the court below added the claim seeking the cancellation of the authorization of this case again

Meanwhile, according to the records, although the date of the instant modified disposition on May 24, 2010, the Plaintiffs came to know that there was the instant modified disposition on July 22, 2010 of the Defendant’s Intervenor’s submission of the Defendant’s Intervenor, which was referred to as the fact that there was the instant modified disposition, and came to know that there was a modification of the purport of the instant modified disposition on August 27, 2010, to seek the cancellation of the instant modified disposition on August 27, 2010, thereby complying with the filing period.

Therefore, the lower court’s determination on whether the period of filing a lawsuit against the instant authorization for establishment and the disposition for modification was unlawful on the premise that the period of filing a lawsuit against the instant authorization for establishment and the disposition for modification was not exceeded, cannot be deemed to have erred by misapprehending

2. As to the grounds of appeal Nos. 2 and 3

According to Article 16(2) of the Act on the Improvement of Urban Areas and Residential Environments (hereinafter “Urban Improvement Act”), when a committee for promotion of housing reconstruction projects intends to establish an association, at least 2/3 of the sectional owners of each apartment house in a housing complex, and at least 1/2 of the area of land (excluding cases where each sectional owner of a multi-family housing has five persons or less), at least 3/4 of all sectional owners in a housing complex, and at least 3/4 of the area of land within a housing complex with the consent of landowners who own at least 3/4 of the area of land, and at least 3/4 of the area of land, the approval of the head of a Si/Gun shall be obtained, notwithstanding the provisions of Article 47(1) and (2) of the Act on the Ownership and Management of Aggregate Buildings. The same shall also apply to cases where a person intends to modify the authorized matters. According to paragraph (3) of the same Article, if an area other than a housing complex is included in a housing complex, consent of at least 3/4 of the owners of land or structures within a housing complex.

In light of the contents, form, and structure of the above provisions, it is reasonable to view that the committee for promotion of a housing reconstruction project should obtain only consent under Article 16(2) of the Urban Improvement Act in establishing an association where only a housing complex is comprised of a housing complex; ② in a rearrangement zone where an area which is not a housing complex is included in a housing complex, consent under Article 16(2) of the Urban Improvement Act shall be obtained for a housing complex; but in a case where an area which is not a housing complex is included in a housing complex, consent under Article 16(3) of the same Act shall be obtained for an area which is not a housing complex; and ③ in a case where a housing complex is not included in a housing complex, consent under Article 16(3) of the Urban Improvement Act shall be obtained. Moreover, it is reasonable to interpret that “land or building owner” under Article 16(3) of the same Act includes not only the owner of the land and building in the rearrangement zone, but only the owner of the land, and only the owner of the building (see, e.g., Supreme Court Decision 2010Du2507.

After finding the facts as indicated in its holding, the lower court determined that the instant disposition was unlawful on the ground that: (a) either of the owners or owners of a parcel of land or building within the instant rearrangement zone at the time of the instant disposition for authorization for establishment of a reconstruction and improvement project cooperative is 140 persons and the consenters are 100 persons and their consent rate is merely 71.42%, and thus, (b) the consent of “not less than 3/4 of the owners of land or building” under Article 16(3) of the Urban Improvement

According to the records, there is an area deemed as a housing complex within the rearrangement zone in this case, and among 140 persons with the above right to consent, there is no possibility that many sectional owners of multi-family housing in the housing complex can be deemed as included. Nevertheless, the lower court erred by determining that the instant authorization disposition was unlawful by simply applying the quorum of consent under Article 16(3) of the Urban Improvement Act, without regarding whether a housing complex area exists within the rearrangement zone and an area other than a housing complex, and if any, whether there exists an area within the rearrangement zone, and whether there is an area within the rearrangement zone

However, inasmuch as the consent ratio of 100 persons among 140 persons with overall consent under Article 16(2) and (3) of the Urban Improvement Act is below 71.42% and the consent rate is below 75%, even if the consent rate is calculated by dividing a housing complex and an area which is not a housing complex, it cannot be said that all the quorum of consent under Article 16(2) and (3) of the Urban Improvement Act is met. Thus, the lower court’s conclusion that the instant authorization of establishment was unlawful because it did not meet the quorum of consent is acceptable. Contrary to the allegations in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on calculating the consent rate for authorization of establishment of a reconstruction and improvement project association, thereby affecting the conclusion of the judgment.

3. Regarding ground of appeal No. 4

An administrative agency’s disposition of approving the establishment of a housing reconstruction project has the nature of a sort of rights-based disposition that grants the committee of housing reconstruction project the status as an administrative agent if the relevant requirements are met. Article 16(2) of the Urban Improvement Act requires that the same requirements and procedures as the disposition of approving the establishment should be met when a disposition of approving the establishment of a housing reconstruction project is modified. However, even if an administrative agency made a disposition of modifying minor matters under each subparagraph of Article 27 of the former Enforcement Decree of the Act on the Maintenance of Urban and Residential Environments (amended by Presidential Decree No. 22829, Apr. 4, 2011) without the same requirements and procedures as the disposition of approving the establishment of a housing reconstruction project, its nature is merely that accepts a report of minor matters as stipulated under the above provisions, separate from the initial disposition of approving the establishment of a housing reconstruction project (see, e.g., Supreme Court Decision 2005Du55594, Dec. 29, 2010).

On the other hand, whether an administrative disposition is illegal in an administrative litigation shall be determined on the basis of the relevant statutes and factual state at the time of the administrative disposition, and it shall not be affected by the amendment or repeal of statutes or changes in the actual state after the disposition. In addition, the cure of defective administrative act is not permissible in principle from the perspective of the nature of administrative act or the rule of law. In addition, in exceptional cases where an act of administration is avoided repeatedly, and permission is granted for the legal stability of the parties, it shall be recognized in accordance with specific circumstances to the extent that it does not infringe upon the rights and interests of the people (see Supreme Court Decision 2010Du2579, Aug. 26,

After recognizing the facts as stated in its reasoning, the lower court determined that the instant authorization disposition cannot be seen as being incorporated into the instant authorization disposition on the ground that the additional written consent was submitted and the number of consenters was changed after the instant authorization was issued, and that the instant authorization disposition on the ground that it was accepted a report on the modification of minor matters on the ground of a new joining of union members. Moreover, the instant authorization disposition on the establishment cannot be seen as being incorporated into the instant authorization disposition on the ground that the defects that failed to meet the consent rate

Upon examining the records in light of the above legal principles, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the recovery of defects in administrative dispositions.

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)