[1] A lawsuit seeking to dispute the validity of establishment of an association on the ground of defects in the resolution of establishment of an association after an administrative agency's approval for establishment of an association is issued against the application for establishment of an urban environment rearrangement project association under the former Act

[2] The nature of legal relations surrounding construction contracts between the urban environment rearrangement project association and the city project association under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents

[3] Whether the court may order a provisional disposition in case where it is clearly explained that the application for provisional disposition has no grounds for preservation right or provisional disposition (negative)

[4] The case holding that in establishing an urban environment rearrangement project cooperative, if it is reasonable to view that the association's establishment is invalid on the grounds that the owner of the land, etc. has obtained specific consent on the matters of consent to the establishment of the association under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents and its Enforcement Decree, it shall be deemed that the association has no right to be preserved on the premise that the establishment of the association is null and void, and therefore,

[1] Articles 16(1) and (5) (see current Article 16(1) and (5) (see current Article 16(5)), 18 (see current Article 18), 38 (see current Article 38), 48 (see current Article 48), and 61 (see current Article 61) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 735, Jan. 14, 2005); Articles 16(1) and (5) (see current Article 16(1)), 18 (see current Article 18), 38 (5) (see current Article 18), 38 (see current Article 38), 48 (see current Article 30 (2), 48 (2), and 48 (2) of the Civil Execution Act) / [2] Article 16(1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents;

[1] Supreme Court Decision 2009Du4845 Decided January 28, 2010 (Gong2010Sang, 434) Supreme Court Decision 2008Da50172 Decided November 26, 2009 / [2] Supreme Court Order 2009Ma168 and 169 Decided September 24, 2009 (Gong2009Ha, 1762) / [3] Supreme Court Decision 65Da1021 Decided July 27, 1965

Creditor 1 and two others (Attorney Park Il-young et al., Counsel for the plaintiff-appellant)

Dongbu Construction Co., Ltd. and one other (Law Firm Square, Attorneys Park Young-han et al., Counsel for the plaintiff-appellant)

Seoul High Court Order 2008Ra1400 dated May 26, 2009

The order of the court below is reversed, and the case is remanded to Seoul High Court.

The grounds of reappeal are examined.

1. As to the allegation that the instant application for provisional disposition is unlawful

Under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7335, Jan. 14, 2005; hereinafter “Urban Environment Improvement Act”), an urban environment improvement project association is established as a corporation by applying for authorization of establishment to an administrative agency in accordance with the requirements and procedures prescribed in the relevant Acts and subordinate statutes after obtaining consent from the owners of land or buildings located in a rearrangement zone (hereinafter “resolution on the establishment of an association”). Such an urban environment improvement project association is established as a corporation after obtaining authorization from the administrative agency for establishment of an association (Articles 16(1), 16(5), and 18 of the Urban Environment Improvement Act). Since an urban environment improvement project association’s status as an executor of an urban environment improvement project becomes an administrative body with special purpose in relation to its members’ legal relations, it is not reasonable to separately seek authorization of establishment of an association (see Article 38 of the same Act), a management and disposal plan (Article 48 of the same Act), and a disposition on the imposition of expenses (Article 61 of the same Act).

However, on the other hand, solely on the ground that the urban environment rearrangement project association is a public law person, the legal relationship surrounding the construction contract, etc. entered into between the urban environment rearrangement project association and the constructor falls under the legal relationship under public law, or the lawsuit disputing the validity of the construction contract cannot be deemed to fall under the legal relationship under public law as a matter of course. Since the provisions of the Urban Improvement Act set the legal relationship between the urban environment rearrangement project association and the contractor as a special contractual relationship under public law, the legal relationship surrounding the construction contract, etc. between the urban environment rearrangement project association and the contractor is a legal relationship under private law, and the lawsuit disputing the validity of the construction contract shall be subject to civil litigation (see Supreme Court Order 2009Ma168, 169, Sept. 24, 2009)

According to the reasoning of the order of the court below, the obligees asserted that the establishment resolution of the association of an urban environment rearrangement project association in Zone 1-1 of the obligor's netization (hereinafter "debtor's association") was null and void and the obligor's association applied for provisional disposition seeking suspension of the validity of the construction contract concluded between the obligor union and the obligor's Dong Construction Co., Ltd. (hereinafter "debtor's Dong Construction"), which is the contractor, on the premise that the obligor union was established in force. Thus, it is clear that the preserved right of this case's provisional disposition is not the claim for invalidity confirmation but the claim for invalidity confirmation of the above construction contract, and the failure or invalidity of the association's resolution is merely the first issue of the claim for invalidity confirmation of the above construction contract. Therefore, in light of the above legal principles, the application of provisional disposition in this case is an unlawful application in violation of the exclusive jurisdiction of administrative litigation.

In addition, a lawsuit for confirmation is not the only subject of confirmation of the legal relationship between the parties, but with respect to the legal relationship between one party and a third party, there is an apprehension or risk of one party's legal relationship, and the legal relationship between the other party becomes an effective and appropriate means to eliminate anxiety or risk of the other party's legal relationship, it shall be deemed that there is an interest in confirmation of the legal relationship between one party and a third party or between the third party's legal relationship (see Supreme Court Decisions 96Da2549, 2546, Jun. 10, 1997; 2006Da77272, Feb. 15, 2008, etc.). Meanwhile, according to the reasoning of the order of the court below, the creditors are owners of land within the business zone of the debtor association, etc., which is the right of the debtor association to seek nullification of the above legal status of the construction contract between the debtor association and the third party, and it is difficult for the debtor association to seek restitution of the above legal status of the construction project.

Therefore, we cannot accept the allegation in the grounds of reappeal purporting that the application of this case was in violation of the exclusive jurisdiction of administrative litigation, or that there is no benefit to seek confirmation of invalidity of the above construction contract against the creditors.

2. As to the assertion of misapprehension of legal principles as to the interpretation of Article 280(2) of the Civil Execution Act

In the application for provisional disposition, the reason for the right to be preserved or the provisional disposition shall be explained, and even if there is no vindication, the court may order the provisional disposition by providing the creditor with a security against the debtor's damage caused by the provisional disposition (Articles 301 and 280 (2) of the Civil Execution Act), but in the absence of such vindication, if it is proved that there is no reason for the preservation right or provisional disposition, the court cannot order the provisional disposition (see Supreme Court Decision 65Da1021 delivered on July 27, 1965).

According to the reasoning of the order of the court below, the court below acknowledged the facts as stated in its holding, and comprehensively based on the facts revealed from the facts, etc., it is reasonable to view that the debtor union obtained the consent of the establishment of the association prescribed in Article 16 (1) and Article 26 (1) of the Enforcement Decree of the Act (amended by Presidential Decree No. 18594 of Dec. 3, 2004), and that the debtor union obtained specific consent on the outline of the design of the newly constructed building, estimated expenses for removal of buildings and construction of new buildings, standards for calculating the charges, standards for sale related to ownership ownership, etc., on the ground that it is reasonable to view that the debtor union did not provide the debtor with 10 million won as collateral, and that the creditor's 2 and 3 provided the debtor union with the right to preserve the provisional disposition of this case under the premise that the establishment of the debtor association is null and void without specific consent from the owner of the land, etc., but the decision of provisional disposition of this case is null and void by the decision of this case.

However, as the judgment of the court below, if it is reasonable to view that the establishment of the debtor partnership has obtained specific consent from the owner of the land, etc. about the matters of consent to the establishment of the association under the Act on the Maintenance of Urban Areas and the Enforcement Decree thereof, and it cannot be deemed that the establishment of the debtor partnership is null and void, it shall be deemed that the debtor partnership has proved that there is no right to be preserved for the application for provisional disposition under the premise that the establishment of the debtor partnership is null and void, and therefore, in accordance with the above legal principles, the court cannot issue a provisional disposition. However, the court's maintenance of the first instance court's decision that approved the provisional disposition of this case merely based on the above reasons is erroneous in the misapprehension of the legal principles as to the interpretation of Articles 301 and 280 (2) of the Civil Execution Act

3. Conclusion

Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)