(영문) 광주고등법원 2020.1.23. 선고 2018누6446 판결

1. Of the judgment of the first instance, the part of the judgment against the plaintiffs other than plaintiffs AV, AW, AX, AY, Z and BA shall be revoked.

2. The plaintiff BG's lawsuit shall be dismissed.

3. The part of the management and disposal plan decided by the Defendant at the ordinary meeting of May 4, 2018 against Plaintiffs BG, AV, AW, AX, AY, Z, and AK, other than the Plaintiffs, V, and BA, shall be revoked.

4. All appeals filed by Plaintiffs AV, AW, X, AY, Z and B are dismissed.

5. The appeal costs of the plaintiffs AV, AW, AX, AY, Z, and B are assessed against the above plaintiffs, and the part arising between the plaintiffs BG and the defendant, except the above plaintiffs, and the part arising between the plaintiffs and the defendant, and the part arising from the participation by the plaintiff succession, are assessed against the defendant, and the part arising from the participation by the defendant, respectively.

Purport of claim and appeal

The judgment of the first instance is revoked. The defendant revoked the part corresponding to the plaintiffs among the management and disposal plans adopted at the ordinary meeting of the first instance court on May 4, 2018 (the court of the first instance accepted the claims of the joint plaintiffs B and C of the first instance court and dismissed the plaintiffs' claims. The defendant appealed against the plaintiffs without filing an appeal. The parts related to the joint plaintiffs, B and C of the first instance court were separated and finalized, and excluded from the scope of the judgment of this court).

Reasons

1. Details of the disposition;

A. Gwangju Metropolitan City was designated as a rearrangement zone for the redevelopment project on July 18, 2007 as the Gwangju Metropolitan City’s announcement D of Gwangju Metropolitan City’s 127,230.53 square meters. Moreover, the Defendant obtained authorization from the head of the Dong-gu Gwangju Metropolitan City to implement the said redevelopment project on August 29, 2007, and obtained authorization to implement the project on February 20, 2017. Meanwhile, except Plaintiff F, G, H, I, and J2, the Plaintiffs (excluding Plaintiff F, H, H, I, I, and J2) from around 2015 to around 2017, part of the number of real estate located within the said rearrangement zone, which were originally owned by one person after the authorization to establish the said redevelopment project was granted to the Plaintiff (3).

B. The Defendant received an application for parcelling-out from March 22, 2017 to May 30, 2017, and the Plaintiffs directly filed an application for parcelling-out within the aforementioned period or the pre-owner of the Plaintiffs filed an application for parcelling-out, and the Plaintiffs to whom the real estate was transferred after the period for applying for parcelling-out was notified to the Defendant.

C. On May 4, 2018, the Defendant, like the Plaintiffs, transferred a large number of real estate owned by the first one and owned a large number of real estate, and decided on a management and disposal plan that recognizes only one right to sell the same real estate to a large number of owners of the same real estate as the first one had a large number of real estate (hereinafter referred to as “the management and disposal plan in this case”). On July 27, 2018, the head of the Dong-gu Seoul Metropolitan City approved the above management and disposal plan on the condition that he/she immediately performed the procedure for the revision of the management and disposal plan and applied for the revision thereof after immediately implementing the procedure for the revision of the management and disposal plan.

D. Meanwhile, on November 22, 2018, Plaintiff V sold the Dong-gu BL, BU (1/2 shares) and FP (1/2 shares) to the FP (1/2 shares) and Plaintiff AK sold on April 11, 2019 to the FR, and each of the above buyers completed the registration of transfer of ownership for each of the above real estate. The aforementioned FP, FT, on November 12, 2019; the above FR, on November 12, 2019; the pertinent FR, on December 2, 2019, filed an application for respective successions with this court; each duplicate was served on the Defendant on November 13, 2019; and both Plaintiff V, K and 201 and the Intervenor were voluntarily withdrawn from the lawsuit (hereinafter collectively referred to as “Plaintiff”) with the exception of Plaintiff V and the Intervenor withdrawn from the lawsuit.

[Ground of recognition] Facts without dispute, significant facts in this court, Gap evidence Nos. 1 through 22, 43, 44 (including provisional numbers; hereinafter the same shall apply), Eul evidence Nos. 1 through 9, 12, 13, and 14, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

In a case where one person owns a large number of real estate at the time of authorization for the establishment of an association, but thereafter transfers it thereafter and many persons possess a large number of real estate based on the expiration date of the application period for parcelling-out (hereinafter referred to as the "case in this case"), the above majority owners shall have the right to apply for parcelling-out for each owner. Therefore, the right to apply for parcelling-out should be recognized for each owner at the time of expiration of the application period for parcelling-out or for

B. Defendant’s assertion

Article 39 (1) 3 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 15676, Jun. 12, 2018; hereinafter referred to as the "former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents") provides that only one representative of several persons shall be deemed the members in the case of the issue of this case. Since the right to apply for parcelling-out falls under the right of association members, only the number of persons corresponding to the number of union members

3. Relevant statutes;

Attached Form 3 shall be as listed in attached Table 3.

4. Determination on this safety defense

A. Concerning the subject matter of the suit

The court's explanation on this part is based on the reasoning of the judgment of the court of first instance, which is identical to the reasoning of the judgment of the court of first instance under Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

B. Whether Plaintiff BG’s lawsuit is legitimate

A lawsuit seeking revocation may be instituted by a person having legal interest to seek revocation of a disposition, etc. (Article 12 of the Administrative Litigation Act); Article 39 of the former Act provides that members of a rearrangement project shall be "owners of land, etc." and Article 2 subparagraph 9 (a) of the same Act provides that owners of land or buildings located in an improvement zone or persons with superficies thereof shall be "owners of land, etc." In full view of each of the above provisions, even if a purchase and sale contract for land or buildings located in an improvement zone and completed the registration of ownership transfer, if the sale and purchase contract is lawfully revoked and the ownership is retroactively lost, the status of a member shall be retroactively lost, and if the status of a member is lost, the legal interest in seeking revocation of the management and disposal plan shall be nonexistent. Accordingly, there shall be no legal interest in seeking revocation of

According to the purport of Gap evidence Nos. 18 and Eul evidence Nos. 26 and the whole arguments, plaintiff BG and FO acquired FN land and its ground land located within the improvement zone of this case from FM on February 2, 2017, and completed the registration of ownership transfer. However, plaintiff BG and FO filed a lawsuit against FM for cancellation of the above sales contract and for return of the purchase price on the ground that they did not recognize the right to apply for parcelling-out from the defendant. On May 29, 2019, they received the judgment in favor of the plaintiff (U.S. District Court 2018Na58682) and confirmed around that time. Accordingly, the plaintiff BG retroactively lost its status as the defendant's partner as it retroactively loses its ownership to land and buildings within the improvement zone due to cancellation of the above sales contract.

Therefore, Plaintiff BG has no legal interest in seeking the cancellation of the above management and disposition plan because it is unlikely that the legal relationship of the instant management and disposition plan may be affected, and thus, Plaintiff BG’s lawsuit is unlawful.

5. Judgment on the merits

A. Organization of issues

The members of the redevelopment association shall have the right to vote on a general meeting of the association, the right to select executives of the association, and the right to apply for parcelling-out. Among them, the right to apply for parcelling-out falls under the most important right among the rights of the association members as the right to purchase a newly-established land or a newly-built building after completion of an improvement project in accordance with the management and disposal plan in response to the obligations of the land or buildings owned by the association members in accordance with the management and disposal plan. However, Article 39(1)3 of the former Urban Improvement Act provides that "members shall be owners of the land, etc., but one member shall be deemed to own several persons after acquiring the ownership or superficies of the land or building from one owner of the land, etc. after authorization for establishment is granted (hereinafter referred to as "the qualification regulations of association members of this case"), and in the case of the other owners of the land, etc. (hereinafter referred to as "the owners of land, etc.") except for the one member representing the several persons among the issues of this case, it is difficult to hold and exercise the right

B. The issue of membership of the remaining owners of land, etc.

First, we examine whether it is impossible to recognize the membership status of the remaining owners of land, etc. according to the membership qualification regulations of the instant case.

In order to improve residential environments in an area where infrastructure for rearrangement is inferior and where worn-out and inferior buildings are concentrated, a housing redevelopment partnership is established with authorization from the relevant administrative agency for the establishment of a partnership and the implementation of a redevelopment project (Articles 2, 31, 35, and 38 of the former Urban Improvement Act). The former Urban Improvement Act stipulates that the owners of lands, etc. in a redevelopment improvement zone shall be forced to join the relevant association members regardless of whether they agree to establish an association (Article 39(1) of the same Act). Therefore, unless there are special restrictions under the Act, a person who owns land, etc. in a rearrangement zone shall be regarded as a member of the association concerned.

However, the former Act on the Maintenance and Improvement of Urban Areas only deprives the person who acquired the land, etc. after the authorization of the management and disposal plan, notwithstanding paragraph (1), and does not deprive the person who acquired the land, etc. within the improvement zone of the status of the partner until before the authorization of the management and disposal plan is granted after the authorization of the management and disposal plan.

Furthermore, the same applies to the owners of land, etc. in the rearrangement zone, who are members of the association, bears the duty to contribute land, etc. owned by themselves to the association for the rearrangement project, and the transferee of land, etc. after authorization was granted for the establishment of the association also bears the duty to contribute in kind. However, the former Urban Improvement Act only provides for compensation for losses only when the qualification of association members cannot be acquired pursuant to the main sentence of Article 39(3) through (2). However, there is no separate provision for compensation for losses in cases where the qualification of association

In full view of all the above provisions of the former Act, it cannot be interpreted to the purport that the provision of qualification for association members should be completely withdrawn from the legal relations of the association with the redevelopment association and treated the remaining owners of land, etc. other than one representative partner among several owners of land, etc., as non-members. It is reasonable to interpret that the provision of qualification for association members is to promote the procedural convenience in the operation of the association by selecting one representative partner who shall hold the qualification for association members and act on behalf of several owners of land, etc. and register with the association (see, e.g., Supreme Court Decisions 2006Da53245, Feb. 12, 2009; 201Hun-Ma169, Jul. 26, 2012). Therefore, even where deeming one representative member as a representative under the provision of qualification for association members, the status of association members of the remaining owners of land, etc., other than the representative partner, should be recognized.

C. Whether to recognize the independent application right of the owners of the remaining land

Then, this paper examines whether each owner of the remaining land, etc. is entitled to have an independent right to apply for parcelling-out and whether it can be exercised independently on the premise that the remaining owners of land, etc. are admitted

1) Relevant statutes, such as the former Act on the Improvement of Urban Areas, stipulate the subject of sale as "owner of land, etc."

Article 72 (1) of the former Act provides that a project implementer shall notify a "owner of land, etc. who is not a partner of the details of the public announcement of sale" to a "owner of land, etc. who is not a partner of the project". Article 74 (4) of the same Act and Article 63 (1) 3 of the former Enforcement Decree of the same Act (amended by Presidential Decree No. 28873, May 8, 2018; hereinafter the same shall apply) provide for the method of management and disposal of a redevelopment project, and the method of management and disposal of the redevelopment project shall be sold to the owner of land, etc. of the improvement zone (excluding superficies): Provided, That in the case of selling multi-family housing, the owner of land, etc. who does not meet the standards for the amount, size, acquisition date or type prescribed by City/Do Ordinance may be excluded from the objects of sale as prescribed by City/Do Ordinance, and therefore, Article 74 (3) of the same Act provides that "owners of land, etc. who are not a partner of the housing shall be sold".

2) The number of partners and the number of buyers is not necessarily the same.

The defendant asserts to the effect that the right to apply for parcelling-out is not divided into the rights of the members, and that only the number of the members recognized in the case of application of Article 39 (1) 3 of the former Urban Improvement Act should be recognized. As seen earlier, the right to apply for parcelling-out is the most essential right of the members, and in the case of housing redevelopment, the scope of the members and the scope of the owners of lands, etc. are naturally members, and in principle, the owners of lands, etc. shall be the same as the owners of lands, etc., and 7) the number of the members and the number of the persons eligible for parcelling

However, Article 74(4) of the former Act and Article 63(1)3 of the former Enforcement Decree of the same Act stipulate that persons eligible for parcelling-out are owners of land, etc., but excludes persons holding superficies in the improvement zone, who are owners of land, etc., from persons eligible for parcelling-out, and where multi-family housing is sold, the owners of land, etc., who do not meet the standards as prescribed by the City/Do Ordinance, may be excluded from the objects of parcelling-out. In such cases

On the other hand, Article 39 (1) 1 of the former Act provides that one representative shall be deemed to be the co-ownership of one real estate. However, Article 76 (1) 7 (a) provides that several rights to apply for parcelling-out may be granted pursuant to the City/Do Ordinance, and the proviso of Article 25 (2) 3 of the former Ordinance of Gwangju Metropolitan City provides that co-owners who meet certain requirements may be granted the status of eligible buyers.8) also, in the interpretation of Article 39 (1) 2 of the former Act or the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Areas and Dwelling Areas and Dwelling Areas and Dwelling Areas, one household or one person owns one or more houses or lands, the number of members shall be calculated as one, but in such cases, the number of members may be sold in lots as much as the number of houses owned, in such exceptional cases, more than the number of members.

Ultimately, in full view of the provisions of relevant statutes, such as the former Act on the Improvement of Urban Areas, the number of union members and the number of buyers cannot be deemed to coincide with each other.

3) There is no express provision to deprive the owners of the remaining land of the right to apply for parcelling-out

Article 77(1) of the former Act provides that the right to purchase lots shall be calculated on the following day in cases where land on one parcel is partitioned (Article 77(1)(1) and multi-household houses are converted into multi-household houses (Article 77(2)); where land and buildings, such as housing, belonging to the same person within the scope of one site, are separately owned as land and buildings, such as housing, etc. (Article 3); where a new building is built on a site or an existing building is removed, and multi-family housing is increased as owners of land, etc. (Article 4). In such cases, where a Mayor/Do Governor separately determines the base date before the designation and announcement of an improvement zone is made, or where a Mayor/Do Governor separately determines the base date before the designation and announcement of an improvement zone is made, the right to purchase lots is to be restricted in cases where the entry of an speculative force, etc. that makes profits prior to the designation and announcement of an improvement zone is fundamentally cut off, and the so-called ‘share of shares' is restricted in order to protect the rights and interests of existing members.

On the other hand, the above provision and the qualification provision of the association members of this case were newly established with the amendment by Act No. 9444 on February 6, 2009. In light of the fact that the legislators newly established the provision on the qualification of association members of this case but separately established the provision on the legal provision that limits the right to sell the land to the speculative forces through the 'share of shares', it is difficult to regard the provision on the qualification of association members of this case as excluding the remaining owners of land and buildings subject to sale. Furthermore, even if the issue of this case is the case of this case, the legislators separately transferred the land and buildings, such as housing, within the scope of one site, including the type of 'share of shares' (Article 3). Therefore, it is difficult to see that the case of this case is not included in the 'share of shares' type.

In addition, Article 74(4) of the former Urban Improvement Act and Article 63(1)3 of the former Enforcement Decree of the same Act provide that when selling multi-family housing, the owners of land, etc. who do not meet the standards for the amount, size, acquisition period, or type prescribed by City/Do Ordinance may be excluded from the objects of sale as prescribed by City/Do Ordinance. In conclusion, the former Urban Improvement Act delegates to the Presidential Decree or municipal ordinances so that it can take into account the policy needs at that time or the specific circumstances of each City/Do instead of uniformly regulating the problems of preventing speculation outside the type listed as "shares" by the Act.

However, Article 25(1) of the former Ordinance of Gwangju Metropolitan City provides that "the owner of land, etc. is the same as the person who owns a house among buildings as of the base date of the management and disposition plan," and Article 77 of the former Act provides that "the person who owns a house as of the base date of the management and disposition plan shall be regarded as the person who owns a house," and Article 25(2) provides that "the person who owns a real estate shall be regarded as the person who owns a house and several real estate shall be

As above, even though there is no express provision limiting the right to apply for parcelling-out by the remaining owners of land, etc., it is not permissible to deprive the remaining owners of the land, etc. of the right to apply for parcelling-out through analogical interpretation and expansion interpretation of the former Urban Improvement Act and related statutes solely for the public interest of preventing speculation. The same applies to cases where recognizing the right to apply for parcelling-out by the owners of land, etc., if one of the remaining owners of land, etc. owns one or more houses or land, it may lead to a deviation from Article 76 (1) 6 of the former Urban Improvement Act, which provides that one house shall be supplied, but it is difficult to regard

4) There is no provision to deprive the owners of the remaining land, etc. of the right to apply for parcelling-out.

According to Article 40 (1) 2 and 18 of the former Act and Article 38 (15) of the former Enforcement Decree of the same Act, matters concerning the qualifications of union members and the rights and obligations of union members may be determined by the articles of association. According to Article 10 (1) 2 and 18 of the former Act and Article 38 (15) of the former Enforcement Decree of the same Act, Article 9 of the defendant's articles of association only provides for the same purpose as Article 39 (1) of the former Urban Improvement Act, and does not provide for the deprivation of union members' qualifications in the case of the issue of this case. Article 10 (1) 1 of the same Act provides for the right to claim the sale of a building as the rights of union members, and Article 44 (2) provides for the right to claim the sale of a building as the rights of union members in the case of the issue of this case, the number of union members in the case of the other issue of this case is recognized. Accordingly, all of the rights of union members are recognized.

5) There are separate cases where several persons own one real estate.

The defendant asserts that if there are several persons sharing one real estate, one representative under Article 39 (1) 1 of the former Act shall be appointed as a member, and Article 76 (1) 6 of the same Act provides that only one house shall be supplied to co-owners. In the case of the issue of this case, it shall be interpreted that the status of one person subject to parcelling-out should be recognized just as the case of the issue of this case.

However, as seen earlier, unlike the case where several persons jointly own one real estate, there is no express provision that restricts the status of the other owners of the land, etc. in the instant case as to the remaining owners of the land, etc. In addition, in view of the right recognized as compensation for the performance of the obligation of investment in kind to the association, there seems to be a reasonable ground that the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents separately deals with the case where several persons make an investment in kind only one real estate and the case where several persons make an investment in kind, and does not restrict the status of the remaining owners of the land, etc. to the extent that they do not limit the status of the remaining owners of the land, etc.

6) The need to exercise uniform rights is not significant.

The right to apply for parcelling-out is not simply a procedural right that can be exercised as a member of the association, but also a substantive right recognized for the performance of the obligation to invest in kind to the association. Therefore, insofar as it is interpreted that the status of the remaining owners of land, etc. is recognized, it is reasonable to view that the right to apply for parcelling-out can be exercised, unlike exercising procedural rights, such as voting rights or the right to appoint executives of the association and the right to select and appoint executives of the association. In addition, even when the status of the association is transferred, it is sufficient for the association to proceed with the parcelling-out procedure by deeming the transferee as its member, and it is necessary to establish a management and disposal plan by treating the owners of land, etc. who applied for parcelling-out as the object of parcelling-out within the period for

7) Sub-committee

In full view of the language, legislative intent, and contents of the defendant's articles of incorporation, etc., it is reasonable to deem that each owner of land, etc. has the right to apply for parcelling-out and can exercise the right respectively in the case of the issues of this case.

(d) In the case of the Plaintiff AV, AW, AX, AY, AZ, and BA

1) Relevant legal principles

Article 77(1)2 of the former Act on the Maintenance and Improvement of Urban Areas provides that where a single house or multi-family house is converted to a multi-household house, the right to purchase the relevant house shall be calculated on the basis of the following day if the designation and public notice of a rearrangement zone is made or when the Mayor/Do Governor determines the base date. This is because, in the case of a detached house or multi-family house 10), the right to purchase the relevant house is not subject to divided ownership, and the entire building is treated as one ownership. When such house is converted to a multi-household house, the number of land owners can increase and the number of persons entitled to purchase the house can increase. Therefore, the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for the prevention of speculation and the protection of the rights and interests of existing members, it seems that it is intended

In order for divided ownership to be established for one building, there is a separate act of separating the parts of the building physically partitioned from an objective and physical perspective to its structure and use, as well as the physically partitioned parts of the building into the objects of divided ownership. Here, division of a building is a kind of legal act which, without changing the physical form and quality of the building, intends to divide the specific parts of the building into the objects of separate ownership under the legal concept, and is not a special restriction on the time and method, but is recognized if the separate intention of disposal authority is externally indicated (see, e.g., Supreme Court en banc Decision 2010Da71578, Jan. 17, 2013): Provided, That in light of the fact that multi-family housing, etc. premised on the premise that the building becomes the object of divided ownership and detached housing, including multi-family housing, which is premised on the premise that it is not subject to divided ownership, it is reasonable to strictly separate the existing building from the existing building at the time of registration and announcement, and thus, it is highly likely to harm the safety of transaction.

Meanwhile, as the former Enforcement Decree of the Building Act was amended by Presidential Decree No. 16284 on April 30, 1999, the multi-family house was defined as a kind of detached house. Before the multi-family house was introduced, the "multi-family house" was divided into detached house, multi-user house, and diplomatic mission, and the "multi-family house" was divided into apartment house, multi-household house, and multi-household house (refer to attached Table 1 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 16284 on April 30, 199).

2) Specific determination

According to Gap evidence Nos. 11 through 13, Dong-gu Do 12, Dong-dong 2 A. 2 H. 2, Dong-dong Do 2, 96.24 square meters, 96.24 square meters, which was completed on Nov. 13, 1987 and completed on Mar. 26, 198, and the general building ledger and the copy of the register were written on the "multi-household" as "multi-household 2, but the above building was written on the "0 number/2 household/000 in the general building ledger" as "0. 1. 2, 1988. 2, 25 square meters from August 11, 198, 201, and 2, 3G 5 square meters of the above building were owned by Do 21, 27, 24, 216.2, 200 square meters of the aggregate building and 4,201.

In light of the above legal principles, the main purpose of the above general building ledger and a copy of the register of the above buildings is as follows: ① before the introduction of the multi-household house system under the Building Act; it is insufficient to view that the main purpose of the public register is "multi-household house" because the main purpose of the general building ledger is stated as "multi-household house"; ② the above building is registered as a general building and registered as a unit building on November 6, 2015, which is 7 after the designation and public notice of the improvement zone of this case; ② the building ledger of the above building was converted into a unit building ledger of the above 10-household house after the completion of the registration of divided ownership; ② the building ledger of the above 20-household house after the introduction of the multi-household house system under the Building Act, and it is not sufficient to view that the building's main purpose is "multi-household house" as being recorded as "multi-household house"; ② the building's unit size of the above 14-story house and multi-household house size of each of the above 20-story.

E. The remaining plaintiffs

As seen earlier, the remaining plaintiffs correspond to the owners of land, etc. subject to Article 39 (1) 3 of the former Urban Improvement Act, and the remaining plaintiffs subject to the above provision are entitled to independently hold and exercise the right to apply for parcelling-out as members of the defendant association. Thus, the management and disposal plan of this case, which did not recognize the remaining plaintiffs' status as eligible to parcelling-out, has errors of law by interpreting the former Urban Improvement Act and relevant Acts and subordinate statutes. Therefore, the part of the management and disposal plan of this case against the remaining plaintiffs should be revoked (in the case of plaintiffs AP, AP, AR, AS, AS, T, and AU, as multi-household housing with 10 households with the 4th above ground level above the ground level below the upper 195, which was multi-household housing with the 10th above ground level below the upper 195, and the building divided from January 16, 1996 to the date of approval for use, and the act of designating and publicly announcing the improvement zone of this case, such as the collective building register.

6. Conclusion

Therefore, the plaintiff's lawsuit is unlawful and dismissed, and all claims of the plaintiff AV, AV, AW, AX, AY, AZ, and BA are dismissed. All claims of the plaintiffs and successors except the plaintiff AV, AV, AW, AX, AY, AZ, and BA shall be accepted for the grounds of the judgment. Since the part concerning the plaintiff AV, AW, AX, AY, AZ, and BA among the first decision of the court of first instance is justified, the above plaintiffs' appeal is dismissed, and the first decision of the court of first instance against the remaining plaintiffs except the above plaintiffs is unfair, and the judgment of the court of first instance against the above plaintiffs is revoked, and the plaintiff BG's lawsuit is dismissed, and the part concerning the plaintiffs except the plaintiff BG, AV, AW, AW, AY, AY, AZ, and BA shall be revoked. It is so decided as per Disposition by the assent of all participating Justices and the part concerning the plaintiff AK among the management disposition plan of this case.

Judges

Judge Choi Jong-chul

Judges Kim Sung-ju

Judge Park Jong-hun

Note tin

1) After the change in the area of an improvement zone, the area of the improvement zone at the time of the resolution of the management and disposal plan on May 5, 2018, is 126,43.60 square meters.

2) They have owned a number of real estate located in the above rearrangement zone prior to the authorization to establish the above association and have owned a part of the real estate not transferred within the above rearrangement zone, and apply for a direct application for parcelling-out within the above rearrangement zone.

3) Specific status of the plaintiffs' ownership of real estate or details of changes in ownership are as shown in attached Table 2.

4) The Defendant asserts to the effect that the Plaintiffs cannot exercise the right to sell shares, because they are not sole partners, mainly on the premise that the status of the Plaintiffs is recognized. However, the Defendant submitted a statutory interpretation of the Ministry of Government Legislation (No. 11) dated February 22, 2010, which includes the purport that “the remainder except for one representative where Article 39(1)3 of the former Urban Improvement Act applies to the case to which the right to sell shares, which is a partner’s right, cannot be obtained since they are not the union members.” In principle, the issue of whether the status of the union members is recognized is a matter of interest in the lawsuit, and the Defendant did not assert any assertion as to the interest in the lawsuit, but only claims as one of the logical premise that each of the Plaintiffs does not have the right to sell shares. Therefore, the Defendant’s assertion in this part is not separately determined as the content of the defense prior to the merits.

5) Although Article 73 of the former Urban Improvement Act provides for compensation for losses, it is difficult to deem that compensation for losses can be made in accordance with the above provision in cases where a person who has the right to apply for parcelling-out under Article 72 of the Act does not apply for parcelling-out or is excluded from the objects of parcelling-out in accordance with a management and disposal plan even though he/she applied for parcelling-out under Article 72 of the Act.

6) The period of application for sale under Article 46(1) of the former Act refers to the date on which the period of application for sale expires (see Article 2(2) of the former Gwangju Metropolitan City Ordinance).

7) As seen earlier, in the case falling under Article 39(2) of the former Act, etc., it can be said that the land owner falls under the category of land owners, etc.

8) Article 25 of the former Gwangju Metropolitan City Ordinance on Housing Redevelopment Projects.

(2) In any of the following cases, several applicants for parcelling-out shall be deemed eligible for parcelling-out:

3. Where several persons own one house or one parcel of land: Provided, That the same shall not apply to persons whose share area of land owned as their co-ownership prior to the date of designation, public inspection of the zone is larger than the size under subparagraph 1 of Article 31 of the Gwangju Metropolitan City Ordinance

9) Article 76(1)7(b)(c) of the former Act provides for an exception to the provision of multiple houses, even if one person owns one or more houses or lands. In addition, the granting of only one person with multiple ownership to said multiple houses is the result of a policy decision taking into account the need for the protection of the living environment, such as residence, which is actually infringed upon by a rearrangement project and the public interest such as the prevention of speculation, etc., and it is difficult to view that the said provision is a mandatory provision that restricts the disposal of multiple persons’ disposal.

10) The term “multi-family house” under the Housing Act means a house with a structure wherein one household can carry on an independent residential life within one building, and the term “multi-family house” means a type of detached house, which meets the requirements under each item of subparagraph 2 of Article 2 of the Enforcement Decree of the Building Act, and which does not fall under multi-family housing (Article 2 of the Housing Act and Article 2 of the Enforcement Decree of the same Act).

11) Multi-household housing under the Housing Act is a type of multi-family housing, which meets the requirements under Article 3-5 [Attachment Table 1] 2.c. of the former Enforcement Decree of the Building Act, and each household that jointly uses all or part of the walls, corridors, stairs, and other facilities of the building is a building with a structure in which each household can carry on an independent residential life within one building (Article 2 subparagraph 3 of the Housing Act and Article 3 of the Enforcement Decree of the same Act).