[1] The legal nature of the authorization of establishment of an association conducted by an administrative agency on the basis of relevant laws such as the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, and whether it is permissible to file a lawsuit seeking confirmation of invalidation, etc. only on the ground of defects in

[2] The case holding that in a case where an administrative agency's approval to establish an association against a housing reconstruction and improvement project association under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents sought confirmation of nullity, etc. of such resolution as a civil lawsuit on the grounds of defects in a resolution of establishment of association, such lawsuit constitutes a party litigation which is a kind of administrative litigation, and it shall be transferred to an administrative court which is the competent court, since it can be changed

[3] The legal nature of a lawsuit against a housing reconstruction and improvement project association about the validity of the resolution of the general meeting of the association on the management and disposal plan (=party litigation under the Administrative Litigation Act) and whether it is permissible to separate the parts of the resolution on the grounds of defects in the resolution of the general meeting and file a lawsuit seeking confirmation of invalidity, etc. by removing them separately (negative)

[1] Articles 16 (2) and (5), and 18 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Article 3 subparagraph 1, and Article 4 of the Administrative Litigation Act, Article 250 of the Civil Procedure Act / [2] Articles 16 (2) and (5), and 18 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Article 3 subparagraph 1, 2, and Article 4 of the Administrative Litigation Act, Articles 34 (1) and 250 of the Civil Procedure Act / [3] Articles 18, 24 (3) 10, and 48 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Article 3 subparagraph 1, 2, and 4 of the Administrative Litigation Act, Article 250 of the Civil Procedure Act

[1] [2] [3] Supreme Court en banc Decision 2007Da2428 Decided September 17, 2009 (Gong2009Ha, 1648)/ [1] [2] Supreme Court Decision 2008Da60568 Decided September 24, 2009 (Gong2009Ha, 1735)

Plaintiff (Attorney Park Il-young et al., Counsel for the plaintiff-appellant)

Defendant Housing Reconstruction and Improvement Project Association (Law Firm Square, Attorneys Noh Jeong-hee et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2008Na27624, 27631 decided January 14, 2009

The judgment of the court of first instance is reversed, and the judgment is revoked. The case is transferred to the Seoul Administrative Court.

We examine the grounds of appeal ex officio prior to judgment.

1. The part demanding nullification of the establishment of the Housing Reconstruction Project Association

A housing reconstruction and improvement project association under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the “Urban Improvement Act”) shall be established as a juristic person after obtaining authorization for establishment from the competent administrative agency after meeting the requirements and procedures prescribed by relevant Acts and subordinate statutes, such as obtaining consent to establish an association from the owners, etc. of land and buildings in a rearrangement zone (hereinafter referred to as “project association”) and obtaining approval for establishment from the competent administrative agency (Articles 16(2) and (5), and 18 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents). In addition, a reconstruction association established following such procedures shall have the status as an administrative agent performing certain administrative actions within the rearrangement zone under the supervision of the competent administrative

Therefore, the approval disposition of the establishment of an association conducted by an administrative agency based on the relevant laws such as the Urban Improvement Act is not merely a mere nature of the private person's act of establishing an association, but also a kind of right disposition that grants the status as an administrative agent (public corporation) with authority to implement a housing reconstruction project under the Urban Improvement Act if it satisfies the legal requirements.

In addition, as long as such, a resolution of the establishment of an association is merely one of the requirements necessary for the administrative disposition such as the disposition of authorization for the establishment of an association. After a disposition of authorization for the establishment of an association is taken, the assertion of invalidation of the establishment on the ground of defects in the resolution of the establishment of the association should be based on the method of appeal seeking the revocation of authorization for the establishment of the association or the confirmation of invalidity, and it is not allowed to file a lawsuit seeking confirmation of validity

However, according to the reasoning of the judgment below and the record, the part of the claim for nullification of the establishment of the Housing Reconstruction Partnership among the lawsuit of this case was filed on April 2, 2007, which is only the requirement of the approval of the establishment of the association of this case, after the administrative agency having jurisdiction over the defendant Union issued the approval of the establishment of the association of this case on January 9, 2007. Thus, there is room to view it as an unlawful lawsuit in accordance with the above legal principle

However, the plaintiff's substance of the lawsuit in this case is the validity of the association establishment, and in order to dispute this issue, it should be decided by the method of seeking the cancellation or invalidity of the approval disposition of the association establishment, as seen earlier. However, without properly understanding the legal principles, it seems that the plaintiff has selected the method of seeking the invalidity of the resolution of the general assembly for the establishment of the association which has been viewed as a supplementary act to supplement the previous practice, which has been seen as an act of supplementing the approval disposition of the association establishment. In light of these circumstances, the part claiming the invalidity of the establishment of the housing reconstruction association in this case among the lawsuit in this case does not intend to dispute the validity of the approval disposition of the establishment of the association, and the part claiming the invalidity of the establishment of the housing reconstruction association in this case is the defendant association with the status of the other party of the lawsuit in this case as an administrative agent, and it is reasonable to view that the part claiming the invalidity of the establishment of the housing reconstruction association in this case is related to the legal relations in public law, and it constitutes a party litigation

Therefore, the claim for nullification of the establishment of a housing reconstruction association among the lawsuits of this case should have been filed with the Seoul Administrative Court, which is the exclusive jurisdiction of the first instance court. Since the lawsuit was filed with the Seoul Central District Court, there was an error of violation of the exclusive jurisdiction prior to the existence of interests in the lawsuit. In light of the fact that the transfer can be changed into an appeal litigation against the disposition of authorization for establishment after the transfer to the competent court, it is not obvious that the transfer would be illegal and dismissed, and therefore, the claim for nullification of establishment of a housing reconstruction association among the lawsuits of this case should be transferred to the competent court (see Supreme Court en banc Decision 2007Da2428 delivered on September 17, 2009)

2. The part requesting nullification of the management and disposal plan resolution

A management and disposal plan formulated by a reconstruction association pursuant to Article 48 of the Act on the Improvement of Urban Areas and Dwelling Conditions as an administrative subject in the position of an administrative subject, shall have a specific and direct influence on the property rights, obligations, etc. of its members by prescribing the matters concerning the reversion of rights to a site or building created as a result of the implementation of a rearrangement project and the matters concerning the apportionment of expenses to its members, etc. Therefore, this constitutes a binding administrative plan, which constitutes an independent administrative disposition conducted by a reconstruction association as an independent administrative disposition (see, e.g., Supreme Court en banc Decision 94Da31235, Feb. 15, 1996; Supreme Court Decision 2005Du1

However, the management and disposal plan is effective only after the reconstruction association prepares a management and disposal plan based on the current status of application for parcelling-out of the association members, undergo the resolution of the general meeting of association and the public inspection of the owners of the land, etc., through the authorization and public announcement of the competent administrative agency (Article 24(3)10, Article 48(1), and Article 49 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents), and the resolution of the general meeting of association on the management and disposal plan is one of the procedural requirements leading to the administrative disposition called the management

Therefore, a lawsuit against a reconstruction association, which is an administrative body, disputes the validity, etc. of the resolution of the general meeting of the association on the management and disposal plan is related to legal relations under public law which directly affects the illegality of administrative disposition according to the result of the lawsuit, and thus, it constitutes a party lawsuit under the Administrative Litigation Act.

However, inasmuch as a management and disposal plan becomes effective when the competent administrative agency's approval and ruling on the management and disposal plan becomes final and conclusive, it is necessary to seek revocation or invalidity confirmation of the management and disposal plan by means of an appeal litigation disputing the validity of the administrative disposition on the grounds of defects in the resolution of the general meeting, and to separately remove only the procedural requirements leading to the administrative disposition, and then file a lawsuit seeking confirmation of the validity of the plan, barring special circumstances (see Supreme Court en banc Decision 2007Da2428, Sept. 17, 2009).

According to the records, a claim seeking confirmation of invalidity of the resolution of the management and disposal plan of this case was filed in the court below in the form of consolidating the plaintiff's claim for confirmation of invalidity at the request of the plaintiff's original claimant's association establishment resolution during the deliberation of the case for seeking confirmation of invalidity of the resolution of the union establishment resolution of this case. At the time of the application for addition of the purport of this claim, the plaintiff's claim was already filed as a means of litigation. Thus, the court below, which has jurisdiction over the administrative litigation as it constitutes a certain matter or a multi-administrative litigation, shall examine this part of the case in accordance with the procedures prescribed by the Administrative Litigation Act, and shall examine this part of the case in accordance with the procedures prescribed by the Administrative Litigation Act, and from the perspective of the party's remedy or the litigation economy, it can be changed to the appellate litigation to the purport that the defect is serious and clear even if the period of the lawsuit for revocation is imposed, or it can be changed to the appellate litigation seeking confirmation of invalidity of the lawsuit. Thus, the court below should have deliberated and judged the merits.

However, this part of the claim is first raised at the original court, which is the appellate court, in the form of a modification of the purport of the claim to nullify the invalidity of the resolution of the association establishment general meeting, but as long as the claim to confirm the invalidity of the resolution of the association establishment general meeting, which is the basic case, is transferred to the Seoul Administrative Court, the first instance court's interests, the purport of allowing the modification of the claim in the appellate court, and the ideology of the litigation economy, etc., as seen in the above paragraph (1), it

3. Conclusion

Therefore, without further proceeding to decide on the grounds of appeal, the judgment of the court of first instance is reversed ex officio, and the case is transferred to the competent court. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeon Soo-ahn (Presiding Justice)