Plaintiff 1 and two others (Attorney Seo-dae et al., Counsel for the plaintiff-appellant)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Jeon-tae et al., Counsel for plaintiff-appellant)

July 22, 2009

Seoul Administrative Court Decision 2008Guhap25920 Decided February 12, 2009

1. The part of the judgment of the court of first instance regarding the defendant gold and 11 district housing redevelopment partnership shall be revoked;

2. A disposition to revise a management and disposal plan approved by the head of Seongdong-gu Seoul Metropolitan Government on February 20, 2008 by Defendant Gold-gu and 11 Housing Redevelopment Cooperatives, and a disposition of transfer announcement made on March 25, 2008 shall be revoked.

3. The plaintiffs' appeals against the head of Seongdong-gu Seoul Metropolitan Government are all dismissed.

4. The plaintiffs and the 11th House Redevelopment Cooperatives bear the total costs of the lawsuit between the plaintiffs and the 11th House Redevelopment Cooperatives, and the plaintiffs bear the costs of appeal against the head of Seongdong-gu Seoul Metropolitan Government.

As to Defendant Geum-gu and 11 House Redevelopment Cooperatives, the part concerning the above Defendant in the first instance judgment shall be revoked. On February 20, 2008, the above Defendant confirms that the change of the management and disposal plan approved by the head of Seongdong-gu Seoul Metropolitan Government and the transfer notification on March 25, 2008 are invalid.

The head of Seongdong-gu Seoul Metropolitan Government shall revoke the part concerning the above defendant among the judgment of the court of first instance. The above defendant's approval of the management and disposal plan against the defendant gold and 11 Housing Redevelopment Association on April 7, 2004 is invalid.

1. Facts of recognition;

This Court's explanation is based on Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, since the reasoning for this Court's explanation is the same as the corresponding part of the judgment of the court of first instance except for the following parts:

A. The court of first instance stated that “the report was made” at the last 5th sentence of the judgment, and the above Defendant, on the same day, notified the Plaintiff of its acceptance (Evidence A No. 1-2).

B. On the 6th page 10, the “instant housing development project” is regarded as “instant housing development project”.

2. Relevant statutes;

This Court's reasoning is as stated in Section 21, 22, and 23 of the judgment of the first instance except for the addition of the following to the end of Section 23 of the judgment of the first instance. Therefore, this Court's reasoning is cited as it is in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

[Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas]

2. Where there is a change in the rights and obligations under the provisions of Article 10 of the Act, which does not result from a change in the parcelling-out design; 4. When a change in the management and disposal plan is made with the consent of all the owners of lands, etc. who have an interest in a change in the management and disposal plan; 5. When a change in the management and disposal plan is made in accordance with a change in the articles of incorporation and the authorization for project implementation under the provisions of Articles 20 (3) and 28 (1) of the Act; 5. When a change in the management and disposal plan is made in accordance with a change in the articles of incorporation and the authorization for project implementation under the provisions of Article 39 of the Act;

3. Determination as to the claim against the defendant union

(a) The primary claim regarding the management and disposal plan under Article 2;

According to the above facts, the amendment of the management and disposition plan to the management and disposition plan was not subject to the resolution of the general meeting of the association. It was not subject to the approval and public notice by the head of Seongdong-gu. However, when the management and disposition plan is revised, the approval and public notice procedure of the relevant administrative agency should be required following the resolution of the general meeting of association pursuant to Articles 24(3)10, 48(1), and 49 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter the Do Government Act). However, if the amendment falls under minor matters prescribed in Article 24(3)10, the proviso to Article 48(1), and Article 49 of the Enforcement Decree of the Do Government Act, it is not necessary to obtain a resolution of the general meeting of association. Furthermore, the plan for the management and disposition plan is merely a modification of the plan for the management and disposition plan to be approved by the head of Seongdong-gu government without being classified as a minor person subject to liquidation from 78 households as a withholding facility.

Therefore, the second management disposition plan should be revoked because it is unlawful because it does not meet all the resolution of the union general meeting and the authorization and public notice of the competent administrative agency.

B. Main claim as to the transfer public notice of this case (request for cancellation)

(1) Determination as to the defense prior to the merits of the Defendant Union

(2) The plaintiffs' assertion

The reasoning for this court’s explanation is as follows: (a) it is identical to the statement from 8th to 11th, 8th, 16th, of the judgment of the court of first instance, except for the following matters; and (b) it is also accepted by Article 8(2) of the Administrative Litigation Act and the text of Article 420

(A) by striking from Part 4 to 11 of the first instance judgment (the Plaintiff is not entitled to removal).

(B) On the 9th page 12, “(1) the number of voting participants in the agenda at the time of the union’s resolution on the proposed 1 management and disposition plan is below the quorum,” and the 13th class “(13) places “B” as “B,” and “B” as “III,” respectively, and the 10th class “(2) of the 10th class “No. the 1 management and disposition is null and void as the 10th class approval disposition is null and void as the 10th class is null and void as the 10th class approval disposition is null and void as the 1 management and disposition becomes null and void.”

(3) Determination

(A) Whether the management disposition plan becomes invalid or not

First of all, we examine whether the first management and disposal plan becomes effective due to the modification to the second management and disposal plan, as seen above, so long as the second management and disposal plan becomes invalid due to the deficiency in the general meeting resolution, authorization and announcement procedure, it cannot be deemed that the first management and disposal plan was absorption and extinction in the second management and disposal plan. Thus, we examine the validity of the first management and disposal plan on such premise.

(1) As to the assertion that the resolution by the general meeting of cooperatives under a management and disposition plan falls short of the quorum

In full view of the purport of the argument in subparagraph 3 above, it cannot be readily concluded that the number of members present at the general meeting of cooperatives falls short of the quorum, and there is no evidence to deem otherwise that the number of members present at the general meeting of cooperatives falls short of the quorum of 226 and the total number of 249, among the total number of members present at the general meeting of cooperatives as of September 30, 2003, the number of 255 and the total number of 228, a quorum of the general meeting began. At the time when the agenda of the first management and disposition plan is decided after the resolution on the withdrawal of association head, etc., it can be recognized that the number of voting participants present at the general meeting is 201, a total of 174, and 27, a total of 174, an opposing members present at the general meeting of cooperatives. However, even if the voting participants fall short of the quorum of the quorum of the general meeting of cooperatives, the plaintiffs' assertion that the above part of the plan is objectively unlawful and unreasonable.

② As to the assertion that Article 48 (3) of the Do Administration Act has been violated

The purpose of the above provision is to designate a remainder after receiving the application for parcelling-out from the members of the association based on the whole apartment building of this case, or to sell it to the general public. It is not interpreted that the whole members of the association who applied for parcelling-out based on the unit unit construction household such as the plaintiffs' assertion can sell it to all the members of the association who applied for parcelling-out based on the unit unit construction household, and designate it as a withholding facility or sell it to the general public. Thus, even if the members of the association who applied for parcelling-out cannot be excluded from the target for parcelling-out, it cannot be viewed as a violation of the above provision in accordance with the provisions of the articles of association of the association established lawfully in accordance with the purport of the above provision.

(3) As to the assertion that the omission of the “estimated value of the site or structure scheduled for parcelling-out for each subject of parcelling-out” in the management and disposal plan has occurred.

The court's explanation in this part is the same as the entry in the 13th to 14th to 10th to 13th to 14th to 13th to 14th to 10th to 10th to 14th to 10th to 200 to 20

④ As the instant authorization disposition is null and void as it is reasonable, the allegation that the first management disposition is null and void.

This Court's reasoning is as follows: Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, except for the addition of "the plaintiffs' above assertion shall not be accepted" at the end of the 15th sentence of the judgment of the first instance, since it is the same as the entry of the 14th to 15th sentence of the judgment of the first instance except for the addition of "the plaintiffs' above assertion shall not be accepted."

In the end, there is no reason to believe that the first management disposition plan is void automatically.

(B) Whether a management disposition plan becomes invalid or not

As seen above, the 2nd management and disposition plan lacks both the resolution of the union general meeting and the authorization and public notice of the competent administrative agency, which are the requirements set forth in Articles 24(3)10, 48(1), and 49 of the Do administration Act, and such defect is a serious violation of the essential part of the laws and regulations, and is objectively apparent and objectively null and void.

(C) Whether the transfer announcement of this case was revoked

The transfer announcement is an administrative disposition that transfers ownership of a site, building, etc. created by a rearrangement project to a person who purchases ownership of a building, etc., as prescribed by the management and disposal plan after the completion of the implementation plan, and the completion of the right and duty relationship confirmed by the management and disposal plan is deemed an administrative disposition. Thus, if the management and disposal plan becomes null and void, the entire transfer announcement shall be deemed null and void or void. However, as seen earlier, the management and disposal plan shall be effective and the second management and disposal plan shall be revoked unlawfully (the defect shall be null and void only because it is significant and apparent). The transfer announcement of this case cannot be denied as an execution act of the management and disposal plan, and it cannot be deemed that the second management and disposal plan constitutes an execution act of the second management and disposal plan, and it cannot be deemed that the second management and disposal plan constitutes a modification of minor matters stipulated by Article 24(3)10, Article 48(1), Article 49 of the Enforcement Decree of the Do Government Act, and so long as the second management and disposal plan becomes void, it shall be deemed unlawful.

Therefore, without considering the remaining arguments of the plaintiffs, the transfer announcement of this case should be revoked in its entirety as it is unlawful. Therefore, this part of the plaintiffs' assertion is with merit.

4. Determination on the request to the head of Seongdong-gu.

A. The plaintiffs' assertion

The Plaintiffs asserted that the instant authorization disposition is void as a matter of course on the following grounds, and sought the confirmation of invalidity thereof.

(1) Since the first management disposition plan, which is a basic act, is void as a matter of course, the pertinent authorization disposition, which is a supplementary act to complete its validity, is also void as a matter of course.

(2) Unlike the contents resolved at the general meeting of this case, the Defendant Union did not include 23.49 square-type 3 households, 41.20 square-type 1 households, and applied for authorization to change the content of the first management and disposition plan to 600 households in the shares of the association members, and 288 households in the shares of the association members, which were determined as 540 units in the shares of the association members, and 348 units in the shares of the general sale. Although the Defendant Union applied for authorization to revise the above management and disposition plan without a separate general meeting resolution, the head of Seongdong-gu Office, the Defendant Union, as the instant disposition is null and void.

B. Whether this part of the lawsuit is lawful

However, if the 2nd management and disposition plan is valid, the 1st management and disposition plan subject to the 2nd management and disposition plan of this case is modified into the 2nd management and disposition plan of this case, and there is no legal interest in dispute as to the invalidity of the 2nd management and disposition of this case. However, as seen above, since the 2nd management and disposition plan of this case becomes invalid due to defects in the general meeting resolution, approval and public notice procedure, it cannot be deemed that the 1nd management and disposition plan of this case was modified into the 2nd management and disposition plan of this case. In addition, if the 2nd management and disposition plan becomes effective due to transfer public notice, it cannot be separately removed or modified unless the 2nd management and disposition plan is followed from the beginning, and it is possible before transfer public notice for partial modification of the 2nd management and disposition plan of this case takes effect (see Supreme Court Decisions 90Nu10032, Oct. 8, 191; 97Nu12105, Oct. 8, 199).

C. Judgment on the merits

As seen above, the first management disposition plan cannot be deemed as null and void as it is difficult to view that there is a significant and apparent defect in the instant authorization disposition itself, even if there are differences between the first management disposition plan adopted by the general assembly of cooperatives and the authorized management disposition plan. Therefore, this part of the plaintiffs' assertion is without merit.

5. Conclusion

Therefore, the plaintiffs' primary claim seeking the cancellation of the management disposition plan and the primary claim seeking the cancellation of the transfer notice of this case against the defendant union, respectively, are justified, and the plaintiffs' claim against the head of Seongdong-gu Office shall be dismissed as it is without merit. Since the part concerning the defendant union in the judgment of the court of first instance is unfair in accordance with the conclusion with this court, the plaintiffs' appeal against the defendant union shall be accepted, and it shall be revoked, and the part concerning the head of Seongdong-gu Office in the judgment of first instance concerning the defendant union in the judgment of first instance shall be revoked, and the disposition of second management disposition and the transfer notice of this case shall be revoked, and it shall be revoked, and the plaintiffs' claim against the head of Seongdong-gu Office shall be dismissed as it is unfair in accordance with this court's conclusion. However, the plaintiffs' claim against the head of Seongdong-gu Office shall not be modified

Judges Cho Jae-hoon (Presiding Judge)