2017Da216905 Loans

S. S.C.

Law Firm LLC et al., Counsel for defendant-appellant

Attorney Quota

Defendant 1 and 21 others

Law Firm Young-jin et al., Counsel for the defendant-appellant

Seoul High Court Decision 2015Na2044340 Decided January 25, 2017

November 12, 2020

All appeals are dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Articles 14(3) and 17 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 9401 of Jan. 30, 2009) provide that, in cases where the details of duties performed by the committee for the promotion of the establishment of an association (hereinafter referred to as the "committee for the promotion of an association") involve the bearing of expenses by the owners of lands or structures in rearrangement zones, or cause changes in rights and duties, the consent of the owners of lands, etc. above the ratio prescribed by Presidential Decree shall be obtained before performing such duties, and matters necessary for the method of and procedure for calculating consent of the owners of lands, etc. shall be prescribed by Presidential Decree. Articles 23 and 28 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 Dec. 17, 2008) provide that, except as otherwise provided for in each subparagraph of Article 23 of the above Enforcement Decree, consent from the owners of lands, etc. shall be obtained by the method of written consent using the promotion committee;

A loan contract for consumption concluded by a promotion committee to borrow funds to operate and implement a project without the aforementioned written consent or resolution of a general meeting is invalid as it does not satisfy the requirements for written consent of the owners of land, etc. and the requirements for a general meeting resolution (see, e.g., Supreme Court Decision 2019Da259272, Dec. 27, 2019).

In the same purport, the lower court determined that the instant loan agreement concluded by the Defendant Promotion Committee was null and void due to the lack of written consent requirements and resolution requirements at the residents’ general meeting

In light of the aforementioned legal principles and records, the lower court did not err in its judgment by misapprehending the legal principles as to the operating rules of the promotion committee and the validity of the loan agreement of this case, or by failing to exhaust all necessary deliberations.

2. Examining the relevant legal principles and records as to Article 2 of the Reasons for Appeal, the Plaintiff did not claim the return of unjust enrichment as the preliminary cause of claim. Therefore, the lower court did not err in its judgment by omitting any judgment on the preliminary assertion, or by misapprehending the legal principles on the preliminary consolidation, contrary to what is alleged in the

3. Regarding ground of appeal No. 3

The allegation in the grounds of appeal concerning this part of the judgment of the court below that there was an error in the misapprehension of the legal principles as to the assumption of obligation in the military, or in the incomplete hearing, is with regard to the determination of the court below's assumptive and additional nature. Thus, insofar as the judgment of the court below was not erroneous in the determination of the court below prior to the invalidation of the loan contract in this case,

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.

Supreme Court Decision 201

Justices Kim Jae-in

Justices Min Il-young in charge

Justices Lee Jae-hwan