[1] The method of calculating the number of owners of land or buildings where a number of state-owned or public land exists in a rearrangement zone under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents

[2] In a case where a local government, the representative of which is the state or the person entitled to designate a rearrangement zone, owns state-owned or public land in the rearrangement zone, whether the state or local government can be deemed to have consented to the establishment of a rearrangement project association with the authorization of the competent

[1] Articles 16(2) and (3), and 17(1) and (2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 11293, Feb. 1, 2012); Article 28 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Presidential Decree No. 22277, Jul. 15, 2010) / [2] Articles 16(2) and (3), and 17(1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 11293, Feb. 1, 2012)

[1] [2] Supreme Court en banc Decision 2012Du1419 Decided April 14, 2014 (Gong2014Sang, 1111) Supreme Court Decision 2012Du2904 Decided April 24, 2014

Plaintiff 1 and four others (Law Firm Jeong, Attorneys Park Jae-hwan et al., Counsel for the plaintiff-appellant)

The head of Mapo-gu Seoul Metropolitan Government

New Number 1 Housing Reconstruction and Improvement Project Association (Law Firm Eul, Attorneys Cha Gyeong-ho et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2011Nu21340 decided January 20, 2012

All appeals are dismissed. The costs of appeal, including the part resulting from supplementary participation, are assessed against the plaintiffs.

The grounds of appeal are examined.

1. As to the grounds of appeal on the consent to establish an association with respect to state-owned and public land

A. According to Article 16(3) and (2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 11293, Feb. 1, 2012; hereinafter “former Act”), when the committee for the promotion of housing reconstruction projects intends to establish an association where an area which is not a housing complex is included in a rearrangement zone, it shall obtain authorization from the head of a Si/Gun along with the articles of association and documents determined by Ordinance of the Ministry of Land, Transport and Maritime Affairs with the consent of at least 3/4 of landowners within an area which is not a housing complex and at least 2/3 of land size. According to Article 17(1) of the former Act, the consent of landowners or building owners shall be based on written consent using a seal imprint, and a certificate of personal seal shall be attached thereto. Meanwhile, the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 2720, Jul. 15, 2010; hereinafter referred to as the same shall not apply).

According to the language and text of relevant statutes, such as Article 16(3) of the former Act and Article 28 of the Enforcement Decree of the former Act, even if there are several parcels of state-owned or public land in a rearrangement zone, land or building owners shall be calculated as one person for each owner, regardless of the number of ownership (see Supreme Court en banc Decision 2012Du1419, Apr. 14, 2014, etc.).

In addition, in light of the fact that Articles 1, 3, 4, 8, 64 through 68, 75, and 77 of the former Act give the State and local governments various public authority and roles in relation to the implementation of a rearrangement project and imposes an obligation to support and cooperate in the implementation of a rearrangement project in order to realize public welfare, if a local government representing the competent authority that approves the establishment of the rearrangement project association owns land within the rearrangement zone, the local government can be deemed to have consented to the establishment of the relevant rearrangement project association through the disposition of authorization to establish the association. In addition, if the State or local government representing the authority designating the rearrangement zone owns State or public land within the rearrangement zone, through consultation procedures, etc. in the process of formulating the basic plan for rearrangement and the disposition of authorization to establish the rearrangement zone from the designation of the competent authority to the specific authorization to establish the rearrangement zone, if the State or local government did not explicitly express objection or oppose the project implementation by the relevant rearrangement project or the relevant rearrangement project association, it can be deemed that the State or local government consents to the establishment of the relevant rearrangement project association.

B. citing the reasoning of the first instance judgment, the lower court determined that the property management authority located within the rearrangement zone of this case should calculate the number of land or buildings owners by the Ministry of Strategy and Finance, the State-owned land which is the Ministry of the Interior, and the Seoul Special Metropolitan City-owned land management authority, respectively, on the premise that the property management authority should calculate the number of land or buildings owners by the property management authority, and on the premise that the property management authority located within the rearrangement zone of this case shall be three. However, on the ground of its stated reasoning, the lower court determined that each of the above management authorities agreed to the establishment of the

However, according to the legal principles as seen earlier, even if several parcels of state-owned land exist in the rearrangement zone, regardless of the number of ownership, the owner of the land or building should be calculated as one regardless of the number of ownership. Thus, even if the property management authority of several parcels of state-owned land in the rearrangement zone respectively differs from the Ministry of Strategy and Finance and the Ministry of the Interior, the owner of the land or building should be deemed the State. Therefore, the number of the owners of land or buildings concerning state-owned land and public land in the rearrangement zone in this case is the State and the Seoul Special Metropolitan City, and the part determined differently by

However, examining the records in light of the legal principles as seen earlier regarding the consent to establish an association of state-owned and public land, it can be seen that the state and Seoul Special Metropolitan City, the representative of the person authorized to designate the rearrangement zone of this case, does not appear to have explicitly expressed or opposed the intervenor's objection to the project promotion by the intervenor association until the disposition of the authorization to establish the association of this case. Thus, it can be

Therefore, the reasoning of the court below's explanation on this part is somewhat inappropriate, but the conclusion that the state and Seoul Special Metropolitan City should be calculated as consenters is justifiable.

C. If the consent rate is re-calculated in accordance with the above determination, the owner of the land or building shall be 415 persons (416 persons recognized by the original court - one person for the overlapping calculation of State-owned land), 313 persons (one person for the overlapping calculation of State-owned land recognized by the original court - 314 persons), and the consent rate shall be 75.42% (313 persons/415 persons) and shall meet at least 3/4 of the owners of the land or building who are statutory consent rate. Therefore, the judgment of the court below shall not be deemed to have erred by misapprehending the legal principles as to the calculation of the number of owners of the land or building.

2. As to the grounds of appeal on whether administrative disposition is illegal

Examining the reasoning of the judgment below in light of the relevant legal principles and records, it is just to determine that the case of Nonparty 1, 2, and 3 constitutes a person whose location is not verified under Article 28(1)4 of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents at the time of the establishment approval disposition of this case, and that the land or building owner should be excluded from the number of land or building owners, and contrary to what is alleged in the grounds of appeal, there is no

3. As to the grounds of appeal regarding the person consenting to the establishment promotion committee

citing the reasoning of the judgment of the court of first instance, the court below determined that the approval disposition of the promotion committee of this case, which calculated the number of consenters, cannot be deemed null and void on the ground that the above "owner of land, etc." should be deemed to be all owners of both a building and a land attached thereto in the rearrangement zone pursuant to Article 2 subparagraph 9 (b) (1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8852, Feb. 29, 2008).

In light of the relevant statutes and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there is no error of law by misapprehending the legal principles as to the person consenting to

4. Conclusion

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 Kwon Soon-il (Presiding Justice)