[1] Legal nature of an administrative agency’s disposition of authorization to establish an association under relevant Acts and subordinate statutes 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 invalidity only on the ground of defects in the association

[2] In a case where an administrative agency's disposition of approving the establishment of 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 of the establishment of an association on the grounds of defects in the association establishment resolution, the case holding that the part of the claim for confirmation of nullity of the establishment of an association among the lawsuit must be deliberated in accordance with the procedures prescribed by the Administrative Litigation Act, and that the right of explanation as to whether the lawsuit is modified as an appeal

[1] Article 16 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Article 3 subparagraphs 1, 2, and 4 of the Administrative Litigation Act, Article 250 of the Civil Procedure Act / [2] Article 16 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Article 3 subparagraphs 1, 2, 4, 21, and 42 of the Administrative Litigation Act, Article 136 of the Civil Procedure Act

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

Plaintiff 1 and 61 others (Attorney Kim Tae-hee, Counsel for the plaintiff-appellant)

Defendant Housing Redevelopment and Improvement Project Association (Attorney Park Young-soo et al., Counsel for the defendant-appellant)

Busan High Court Decision 2008Na16905 decided April 16, 2009

The judgment below is reversed, and the case is remanded to Busan High Court.

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

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 it is seen so, if an authorization for the establishment of an association is issued, the resolution for the establishment of an association is merely one of the requirements necessary for the administrative disposition such as the above authorization. After the authorization for the establishment of an association is issued, the assertion of invalidation of the establishment on the ground of defects in the resolution for the establishment of an association should be based on the appellate procedure seeking cancellation or invalidity confirmation of the authorization for the establishment of an association, and it is not allowed to file a lawsuit seeking confirmation against the validity of the association

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 is revealed to be raised to seek nullification of the establishment resolution of this case, which is only the requirement of the establishment approval on October 18, 2007, after the establishment approval was issued by the competent administrative agency on August 11, 2006. Thus, there is room to view that the lawsuit of this case constitutes an unlawful lawsuit in accordance with the above legal principles.

However, in the lawsuit of this case, the plaintiffs are 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 establishment approval 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 seen as the supplement of the previous practice, which has been seen as the supplement of the establishment approval of the reconstruction association. In light of these circumstances, the part claiming the invalidity confirmation of the establishment of the housing reconstruction association among the lawsuit of this case does not intend to dispute the validity of the establishment approval of the association establishment, and the part claiming the invalidity confirmation of the establishment of the housing reconstruction association as the other party of the lawsuit of this case is the defendant association with the status of the administrative main agent, it is reasonable to view that the part claiming the invalidity confirmation of the establishment of the housing reconstruction association of this case is related to the legal relations under public law, and it constitutes a party litigation which is a kind of administrative litigation.

Therefore, the court below should have deliberated the case in accordance with the procedure provided by the Administrative Litigation Act, and should have appropriately exercised the right to ask for an explanation as to whether it has been changed to an appeal litigation, so that it can be equipped with a legitimate form of litigation by appropriately exercising the right to ask for an explanation as to whether it has been changed to an appeal litigation. Thus, the court below should have reviewed it as a simple civil litigation without taking such a measure in accordance with the procedure provided by the Civil Procedure Act, and the judgment below

Therefore, without further proceeding to decide on the grounds of appeal, the lower judgment is reversed ex officio, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)