[1] Legal nature of the reconstruction association established under the Housing Construction Promotion Act (non-corporate company), and whether its members can withdraw voluntarily from the reconstruction association (negative)

[2] Whether a member of a reconstruction association is obligated to implement the registration procedure for transfer of ownership based on trust for the real estate owned by the reconstruction association upon the performance of an investment in kind agreement as stipulated in the articles of association (affirmative)

[1] A reconstruction association established under the Housing Construction Promotion Act shall be deemed to be a non-corporate association under the Civil Act. However, in light of the above, it is reasonable to view that a reconstruction association does not allow voluntary withdrawal of its members unless there are inevitable reasons in light of the essence of the association, and thus, it does not go against the essence of the association, and it is reasonable to view that a reconstruction association does not allow voluntary withdrawal of its members unless there are unavoidable reasons in light of the essence of the association.

[2] Members of a reconstruction association are obligated to cooperate for the achievement of the purpose of the reconstruction project of the association, and the obligation of investment in kind under the rules of the association includes the obligation to transfer land owned by the association for the purpose of trust for the smooth implementation of the reconstruction project of the association. In the case of the sectional owners under the Multi-Unit Residential Building Act, their right to use the site is subject to the disposition of the section for exclusive use and it is impossible to dispose of the right to use the site separately from the said section for exclusive use. Since the reconstruction project is based on the premise of the removal of the house located within the reconstruction area, the members are deemed to have been entrusted with all rights to dispose of the house, including the removal of the part for exclusive use, and therefore, the ownership of the section for exclusive use, other than the right to use the site, is also obligated to trust to the reconstruction association in the future. Therefore

[1] Article 3 subparag. 9, Articles 44(2) and 47-9 of the Housing Construction Promotion Act, Articles 34-3 subparag. 2 and 42(5) and (7) of the former Enforcement Decree of the Housing Construction Promotion Act (amended by Presidential Decree No. 14349 of Jul. 30, 194) / [2] Articles 3 subparag. 9 and 44(2) of the Housing Construction Promotion Act, Article 34-3 subparag. 2 of the former Housing Construction Promotion Act (amended by Presidential Decree No. 14349 of Jul. 30, 194), Article 20(1) of the Multi-unit Housing Construction Promotion Act

[1] Supreme Court Decision 92Da36052 delivered on June 28, 1994 (Gong1994Ha, 2078), Supreme Court Decision 93Da23862 delivered on February 3, 1995 (Gong1995Sang, 1141), Supreme Court Decision 95Da5686 delivered on October 25, 1996 (Gong196Ha, 3409)

1. A person who intends to obtain permission from the Minister of Land, Infrastructure and Transport;

Lee Jong-hee and five others (Attorney Han-hee et al., Counsel for the defendant-appellant)

Seoul High Court Decision 95Na33131 delivered on May 7, 1996

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

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

1. On the first and second grounds for appeal

The plaintiff association, a reconstruction association established under the Housing Construction Promotion Act, shall be a non-corporate association under the Civil Act (see, e.g., Supreme Court Decisions 93Da23862, Feb. 3, 1995; 95Da56866, Oct. 25, 1996). An association, in principle, shall admit membership and freedom of withdrawal. However, the association members of the same reconstruction association, such as the plaintiff association, have the duty to cooperate for the achievement of the purpose of the association until the association is dissolved unless there are unavoidable reasons. The association's reconstruction association, such as the plaintiff association, is able to secure all housing sites located within a certain area, and it is, in principle, premised on the participation of all owners of housing existing in the reconstruction association and the removal of existing housing and construction of housing on its site, it is impossible or considerably difficult to implement the reconstruction project, and Article 34 of the former Enforcement Decree of the Housing Construction Promotion Act (amended by Presidential Decree No. 1439, Jul. 34, 1994).

The court below is just in accordance with the above opinion of the party members since the defendants, who are members of a reconstruction association, are unable to withdraw at will from the plaintiff association without any inevitable reason, and they denied the validity of withdrawal, and there is no error in the misapprehension of legal principles as to reconstruction association or reconstruction project under the Housing Construction Promotion Act, such as the theory of lawsuit. There is no ground for appeal.

2. On the third ground for appeal

According to the records, the judgment of the court below that the defendants' assertion does not constitute an inevitable reason to withdraw from the plaintiff union is just, and there is no error of law such as misapprehension of legal principles as the theory of lawsuit, violation of the rules of evidence, and incomplete hearing. The arguments are without merit.

3. On the fourth ground for appeal

A. According to the reasoning of the judgment below, the court below determined as follows: (a) pursuant to the evidences of macroscopic evidence, the members of the Plaintiff association are required to invest the land owned by them in kind; (b) the rules of the Plaintiff association stipulate that the association shall be implemented from the date of obtaining authorization from the competent authority for establishment; (c) the Plaintiff association obtained authorization from the head of Dongjak-gu on May 8, 1993; and (d) each apartment house in this case owned by the Defendants was registered in accordance with the Multi-Unit Residential Building Act; and (c) it is reasonable to deem that the reconstruction association is premised on the removal of the housing within the reconstruction area; and (d) members of the reconstruction association were entrusted with all disposal rights including the removal of the housing portion; and (e) the agreement on investment in kind among the members of the housing association stipulated in the regulations of the Plaintiff association includes an agreement on investment in kind with the Defendants, who are sectional owners of the above apartment house, to transfer the ownership of the Plaintiff association; and (e) the Plaintiff association is obligated to obtain the registration of the ownership of the Plaintiff association's housing construction project.

B. If the facts are as shown in the judgment below, the defendants, a member of the plaintiff association, have the duty to cooperate in achieving the purpose of the reconstruction of the association. The duty of investment in kind as one of the obligations under the rules of the association includes the duty to transfer the land owned by the association to the association for the purpose of the trust for the smooth implementation of the reconstruction of the association. In the case of the sectional owners under the Act on Aggregate Buildings, such as the defendants, the right to use the site is subject to the disposition of the section for exclusive use, and it is impossible to dispose of the right to use the site separately from the said section for exclusive use, and the reconstruction project is based on the premise of the removal of the house located within the reconstruction area. Thus, the members of the association shall be deemed to have been entrusted with all disposal rights, including the removal of the housing portion. Therefore, the defendants are obligated to entrust the plaintiff association with the ownership transfer registration procedure for each apartment house in this case with the approval of the association.

The court below is just in holding that the Defendants are liable to implement the procedure for the registration of ownership transfer for the execution of redevelopment project, such as the theory of lawsuit, although there is no improper point in its reasoning, and there is no error in the misapprehension of legal principles as to the registration of ownership transfer for the execution of redevelopment project, such as the theory of lawsuit. There is no ground for the conclusion.

4. 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 Lee Yong-hun (Presiding Justice)