[1] The purport of Article 11 (2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Article 7 (2) of the Addenda, and Article 7 (2) of the Addenda of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents

[2] Whether Article 7 (2) of the Addenda to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents allows the selection of a contractor before August 9, 2002 and the additional written consent until the report on the selection of a contractor is made (negative)

[3] In a case where Gap corporation was selected as a contractor with the consent of a majority of the members present at the general meeting of the housing reconstruction and improvement project association meeting, which attended a majority of all owners of land, etc. in the implementation zone of the housing reconstruction project on December 22, 2001, and after August 9, 2002, the head of the competent Gu accepted the report of selection of a contractor of the housing reconstruction project pursuant to Article 7 (2) of the Addenda to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the case affirming the judgment below that the above repair disposition is deemed to be void as a matter of course because

[1] The purport of Article 11(2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 6852 of Dec. 30, 2002 and enforced July 1, 2003) and Article 7(2) of the Addenda (amended by Presidential Decree No. 1782 of Dec. 30, 2002) is to change the method of selecting a contractor through competitive bidding in order to prevent adverse effects such as inducing confusion in the redevelopment and reconstruction market, such as inducing redevelopment and reconstruction and presenting over-packaged shares while the contents of the rearrangement project are not visible, but to prevent confusion in the implementation of redevelopment and reconstruction project by recognizing the existing contractor as a contractor under the new law. Therefore, it is reasonable to deem that the phrase “a consent of at least 1/2 of the owners of land, etc.” as stipulated in Article 7(2) of the aforementioned Addenda refers to consent of at least 1/2 of the total number of owners of land, etc., and it cannot be seen as “the owners of land, etc. present at the general meeting.”

[2] Article 7 (2) of the former Addenda to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 6852 of Dec. 30, 2002 and enforced July 1, 2003) (amended by Act No. 6852 of Dec. 30, 2002) provides that "a housing reconstruction project which selects a contractor with the consent of at least 1/2 of the owners of land, etc. before August 9, 2002 and which is reported to the head of Si/Gun within 2 months after the enforcement date of this Act pursuant to the methods and procedures prescribed by the Ordinance of the Ministry of Construction and Transportation, the relevant constructor shall be deemed as a contractor selected pursuant to Article 11 of this Rule." However, it cannot be deemed that prior to August 9, 2002, the consent of at least 1/2 of the owners of land, etc. shall be obtained, and if the contractor is selected before August 9, 2002, it shall be allowed to obtain additional consent

[3] In a case where Company A received a report on the selection of a contractor of a housing reconstruction project with the consent of a majority of the members present at the general meeting of the housing reconstruction improvement project association meeting on December 22, 2001, after being selected as a contractor with the consent of at least 1/2 of all the owners of land, etc. after August 9, 2002, the case affirming the judgment below that the head of the competent Gu failed to obtain the consent of at least 1/2 of the owners of land, etc. by December 30, 2003 pursuant to Article 7 (2) of the Addenda to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 6852, Dec. 30, 2002) (amended by Act No. 6852, Jul. 1, 2003) since it was obvious that Company A did not obtain the consent of at least 1/2 of the owners of land, etc. by August 9, 2002.

[1] Article 11 (2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7392 of March 18, 2005) (see current Article 11 (1)), Article 7 (2) of the Addenda to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7392 of December 30, 2002) / [2] Article 7 (2) of the Addenda to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7392 of December 30, 2002) / [3] Article 11 (2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7392 of March 18, 2005) (see current Article

[Judgment of the court below]

The head of Seocho-gu Seoul Metropolitan Government

Lot Construction Co., Ltd. (Bae, Kim & Lee LLC, Attorneys Kim Sung-jin et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2011Nu33602 decided March 21, 2012

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

The grounds of appeal by the Defendant and the Intervenor joining the Defendant are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal on the interpretation of "the consent of at least one half of the owners of land, etc." under Article 7 (2) of the Addenda to the Act on the Maintenance and

Article 11(2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 6852 of Dec. 30, 2002 and enforced July 1, 2003; hereinafter “former Act”) provides that “The association or the owner of a plot of land, etc. shall select a contractor under the provisions of paragraph (1) through competitive bidding as determined by the articles of association, etc. of the association.” Article 7(2) of the Addenda provides that “An association authorized to establish an association shall select a contractor with the consent of at least half of the owners of land, etc. who already selected a contractor with the consent of at least half of the owners of land, etc. before the date of entry into force of this Act or a housing reconstruction project with the consent of at least one half of the owners of land, etc. who selected the constructor within two months before the date of entry into force of this Act shall be deemed to be an implementer selected pursuant to the provisions of Article 11 of the former Act to prevent any confusion between the implementer and the owner of land, etc.

The judgment of the court below on this purport is just, and there is no violation of law by misapprehending legal principles as alleged in the grounds of appeal.

2. As to the grounds of appeal on the interpretation of the “housing reconstruction project that selects a contractor before August 9, 2002” under Article 7(2) of the Addenda to the former Act on the Improvement of Urban Areas and Dwelling Conditions for Residents

As seen earlier, Article 7 (2) of the Addenda to the former Act on the Maintenance and Improvement of Urban Areas provides that “If a housing reconstruction project that was selected by obtaining the consent of more than 1/2 of the owners of lands, etc. before August 9, 2002 and has been reported to the head of a Si/Gun within 2 months after the enforcement date of this Act, the relevant contractor shall be deemed to be the contractor selected pursuant to Article 11 of this Rule.” However, the relevant contractor shall obtain the consent of more than 1/2 of the owners of lands, etc. before August 9, 2002, and it shall not be deemed that the designation of the contractor was made before August 9, 2002, and the further consent shall be granted until the report on the selection of the contractor is made.

The judgment of the court below on this purport is just, and there is no error in the misapprehension of legal principles as asserted in the grounds of appeal.

3. As to the grounds of appeal on whether a defect not meeting the requirements of Article 7(2) of the Addenda to the former Urban Improvement Act can be deemed a serious and clear defect

In order for an administrative disposition to be deemed null and void as a matter of course, it is insufficient to say that there is an illegality in the disposition. The defect must be objectively obvious as it seriously violates the important part of the law. 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 a reasonable consideration should be made on the specificity of the specific case itself (see Supreme Court Decision 2004Du10968, Jun. 24, 2005, etc.).

According to the court below's decision and the evidence duly admitted by the court below, the intervenor joining the defendant (hereinafter "the intervenor") reported that the plaintiff was selected as the contractor of this case on July 21, 2003, and the defendant did the disposition of this case which accepted it pursuant to Article 7 (2) of the Addenda to the former Act on August 21, 2003, and the committee for approval of the above committee for approval of the establishment of the association was rejected by the defendant around August 2003 without obtaining the consent of 252 of the owners of the above reconstruction project (hereinafter "the project of this case") from 1,572 owners of the land and 635 owners of the land in the general meeting of the housing reconstruction promotion project, which was held by the second apartment reconstruction promotion committee of the new distribution apartment reconstruction project. The intervenor was selected as the contractor of this case on August 22, 2003.

In light of the legal principles as seen earlier and the legislative purport of Article 11(2) of the former Act and Article 7(2) of the Addenda thereto, it is reasonable to deem that the above defect existing in the disposition of this case was objectively apparent in light of the specific circumstances such as the situation where the intervenor’s rejection disposition of the selection of the contractor was revoked by an administrative appeal and the administrative agency accepted the report at the speed of August 9, 2002, the defendant’s acceptance of the report by the intervenor who failed to meet the requirements of Article 7(2) of the aforementioned Addenda constitutes a serious defect in the law. Furthermore, as of the time of this case’s acceptance of the above report, it is difficult to conclude that the defect in this case’s disposition is objectively null and void since it was based on the fact that the rebuilding promotion committee was only formed, and it was not even approved for the establishment of the association promotion committee as well as for the establishment of the association promotion committee (the case cited in the ground of appeal).

The judgment of the court below on this purport is just, and there is no error in the misapprehension of legal principles as alleged in the grounds of appeal.

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 Kim Chang-suk (Presiding Justice)