[1] Whether it is legitimate for the Housing Redevelopment Promotion Committee to obtain consent on the establishment of the association by a written consent under Article 7(3) of the former Enforcement Rule of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents without attaching the articles of association or draft articles of association of the association (affirmative)

[2] The method of calculating "owner of land, etc." in a case where the same co-owner owns land, land, or building in different lots of land in a housing redevelopment project and the same co-owner jointly owns land, land, or building in different lots of land

[1] Article 16 (1) and (5) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785 of Dec. 21, 2007), Article 26 (1) and (2) 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. 21171 of Dec. 17, 2008), Article 7 (3) of the former Enforcement Rule of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Ordinance No. 594 of Dec. 13, 2007) [2] Article 2 subparagraph 9 (a) and Article 17 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785 of Dec. 21, 2007), Article 18 (1)1 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended)

[1] Supreme Court Decision 201Du8291 Decided December 26, 2013 (Gong2014Sang, 317), Supreme Court Decision 2012Du29004 Decided April 24, 2014 / [2] Supreme Court Decision 2009Du15852 Decided January 14, 2010 (Gong2010Sang, 343), Supreme Court Decision 2012Du15777 Decided November 28, 2013

Plaintiff 1 and one other

Head of Jung-gu, Daejeon Metropolitan City (Attorney Kim-type, Counsel for defendant-appellant)

Advanced District Housing Redevelopment and Improvement Project Association (Attorney Park Jae-hwan, Counsel for the plaintiff-appellant)

Daejeon High Court Decision 2012Nu360 decided July 19, 2012

All appeals are dismissed. The costs of appeal, including the part resulting from supplementary participation, are assessed against the Plaintiff (Appointed Party).

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

The court below rejected the plaintiffs' assertion that since the project area of this case was designated as an urban renewal acceleration district under the Special Act on the Promotion of Urban Renewal during the promotion of housing redevelopment projects, the disposition of this case was null and void, and the change in the designation of the urban renewal acceleration district is reflected in the change in the designation of the urban renewal acceleration district, and the plaintiff (appointed party; hereinafter "the plaintiff")'s assertion that the project area of this case should be re-designated as the urban renewal acceleration district after the approval of this case was issued, not re-authorization of the establishment is required since the project area of this case was designated as the urban renewal acceleration district after the approval of the establishment of this case, but it was prepared in the purport of establishing a system that can implement wide and efficient projects, such as redevelopment in urban renewal acceleration district, and contributing to balanced urban development and improvement of the quality of life of the people by drastically improving urban infrastructure. The court below rejected the plaintiffs' claim on the ground that the costs of installation of infrastructure should be

In light of the relevant legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, by misapprehending the legal principles on legal effects arising from the designation

2. Regarding ground of appeal No. 2

A. Article 16(1) and (5) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785, Dec. 21, 2007; hereinafter “former Act”), Article 26(1) and (2) 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. 21171, Dec. 17, 2008; hereinafter “former Enforcement Decree of the Urban Improvement Act”), which does not require the consent of the association at its inaugural general meeting, to the effect that the consent of the association should be obtained on the basis of its articles of incorporation’s structure, form and content, and details of the provisions on association establishment of housing redevelopment projects and the details of its articles of incorporation’s consent to the establishment of the association, which are not required by the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 594, Dec. 13, 2007).

In addition, according to Article 26 (1) of the Enforcement Decree of the former Act on the Improvement of Urban Areas and Dwelling Conditions, “an outline project implementation plan” does not include “an outline project implementation plan” among the matters to be stated in the written consent of the owners of land, etc., and such written consent cannot be deemed null and void on the ground that it did not distribute

B. citing the reasoning of the judgment of the court of first instance, the court below rejected the plaintiffs' assertion that each of the above establishment agreements is null and void since the promotion committee of this case did not prepare and distribute the draft articles of association and a rough project implementation plan at the time of demanding the written consent for the establishment of each of the establishment of the association of this case and did not attach it to the written consent for the establishment of the association. The promotion committee of this case distributed the draft articles of association to all the owners of land, etc. before the inaugural general meeting, and the written consent for the establishment of the association cannot be deemed null and void on the ground that the articles of association was not attached to the written consent for the establishment of the association. According to the provisions of Article 28 of the former Enforcement Decree of the Urban Improvement Act, there is no legal ground to examine whether the defendant prepared and posted the written consent

C. Examining the above legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the scope and effect of written consent for the establishment of the association.

3. As to the third ground for appeal

The lower court, citing the reasoning of the first instance judgment, determined that the inaugural general meeting held by the instant promotion committee is not sufficient to recognize any procedural and substantive defect, and that the above inaugural general meeting was lawful by a resolution on the agenda with the consent of the majority present at the meeting of the majority present at the meeting of all owners of land, etc.

In light of the relevant legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the establishment and validity requirements of the inaugural general meeting. In addition, the above judgment of the court below contains the purport of rejecting all plaintiffs' claims that at least 4/5 of the owners of land, etc. should be subject to consent of the establishment of the association before the inaugural general meeting or that the quorum of the above inaugural general meeting should be at least 4/5 of the owners of land

4. As to the fourth ground for appeal

Based on the reasoning of the judgment of the court of first instance, the court below acknowledged the fact that the defendant assistant participant applied for the authorization of the establishment of an association to change the name, area, executive officer, etc. of the project area of this case on July 29, 2009, along with minutes of special general meetings, etc.; on August 11, 2009, the defendant changed the name of the project area of this case from "Bllified Housing Redevelopment Improvement Project Zone" to "Blified Housing Redevelopment Project Zone"; the area of the project area of this case to "46,49 square meters" to "48,305 square meters"; and the change to the executive officer's total number and representative is approved; and the above authorization was merely the meaning of accepting a report on the change of minor matters as stipulated in the subparagraphs of Article 27 of the Enforcement Decree of the Urban Improvement Act; thus, the court rejected the plaintiffs' assertion that at least 4/5 of the owners of land, etc. should re

In light of the relevant legal principles and records, the above judgment of the court below is just, and there is no error of law by misunderstanding the legal principles as to authorization for change of the establishment of an association and failing

5. Ground of appeal No. 5

Based on the reasoning of the judgment of the court of first instance, the court below acknowledged the fact that the representative of the ○○ church registry, the owner of the 629 square meters of the site in Jung-gu, Daejeon, signed a written consent for the establishment of the association, affixed the seal impression of the church and the personal seal impression of the non-party 1, and attached the certificate of personal seal impression of the non-party 1 on the register of the ○○ church, the owner of the ○○ church, and the non-party 2, the representative of the non-party 2, on the register of the ○○ church, signed a written consent for the establishment of the association, affixed the non-party 1’s seal impression of the non-party 1, the non-party 2, the owner of the non-party 302 square meters of the non-party 302 square meters of the Gu, Jung-gu

In light of the relevant legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, by misapprehending the legal principles on the disposal of collective ownership property

6. As to the grounds of appeal Nos. 6 to 9

A. Determination of number of owners of land, etc. and number of consenters

1) According to Article 2 subparagraph 9 (a) of the former Act, "owner of land, etc." is the owner or superficies of the land or building located within the rearrangement zone. According to Article 17 of the same Act and Article 28 (1) 1 of the former Enforcement Decree of the Act, the consent of the owner of the land, etc. in the housing redevelopment project shall be calculated as the owner of the land, etc. who represents the number of the land or one building if the land or one building in the housing redevelopment project belongs to the co-ownership of several persons. Where superficies is established on the land, the owner of the land and one person representing the superficies shall be calculated as the owner of the land. Where one person owns a lot of land or a building in the number of lots of lots of lots of land or buildings, the number of the owners of the land, etc. shall be calculated as one person regardless of the number of lots of land or buildings, and where the co-owners are different, one person of each real estate shall be calculated as one owner of the land, etc., regardless of the contents and structure of the relevant Act.

2) citing the reasoning of the judgment of the court of first instance, the court below held that ① Nonparty 3, 4, 5, 6, 7, and 8 were co-owned with respect to the above 402 square meters of the housing site in Daejeon, Daejeon, and Daejeon, and Nonparty 3 were separately owned by Nonparty 3, and Nonparty 8’s 81.45 square meters of the building site ( Address 4 omitted) were jointly owned by Nonparty 4, 5, 6, 7, and the above 79 square meters of the housing site ( Address 5 omitted); ② Nonparty 8, 3, 4, 4, and 4 were co-owned with respect to the above 62 square meters of the housing site in the area of this case; ② Nonparty 1, 3, and 5,000 square meters of the housing site in the area of this case, and Nonparty 4, which were owned by Nonparty 8’s association establishment agreement around July 207.

Examining the above facts in light of the legal principles as seen earlier, since all co-owners of the above ( Address 3 omitted) land agree to establish each association, even if the consent to appoint a representative on the above ( Address 3 omitted) site was not submitted, the above ( Address 3 omitted) site shall be calculated as having one owner of the land, etc. and one consenting person. Meanwhile, since Nonparty 8 owns only one house on the ground of the above ( Address 3 omitted), it shall be calculated as having one owner of the land, etc. and one consenting person, separately from the building site jointly owned with other five ( Address 3 omitted) site.

Although the court below's reasoning on this part is somewhat inappropriate, the court below's determination is eventually dismissed, since the defendant's assertion that calculated the consent rate with two owners of land, etc. and the number of consenters with respect to the above ( Address 3 omitted) site and the above ( Address 3 omitted) ground housing owned by non-party 8 is invalid, the court below's decision on this part is justified.

3) Comprehensively taking account of the evidence not adopted or rejected by the lower court, Nonparty 9 owned each site in Jung-gu ( Address 7 omitted) and ( Address 9 omitted) in Daejeon, and owned each site in common with Nonparty 10 ( Address 8 omitted). Nonparty 9 was appointed as the representative with respect to the above ( Address 8 omitted) site; Nonparty 9 submitted written consent to establish each association on each of the above sites; Defendant calculated each of the above sites as one owner of the land, etc. and one consenting person with respect to ( Address 7 omitted) site and ( Address 9 omitted); and ( Address 8 omitted) site as one owner of the land, etc. and one consenting person with respect to ( Address 8 omitted) site.

Examining the above facts in light of the legal principles as seen earlier, the owners of lands, etc. and the consenters should be calculated respectively with respect to the site owned by them. As such, the owners of lands, etc. and the consenters with respect to each of the above sites jointly owned by Nonparty 9 or jointly owned by Nonparty 10 should be calculated as total two persons. Although the reasoning of the lower court regarding this part is somewhat inappropriate, the lower court’s determination ultimately dismissed the Plaintiffs’ assertion that the Defendant’s disposition of authorization for establishment of this case, which calculated the consent rate with the owners of lands, etc. and the consenters of lands, etc. as to the above ( Address 7 omitted), ( Address 9 omitted), housing site, and ( Address 8 omitted),

4) citing the reasoning of the first instance judgment, the lower court determined that Nonparty 1’s consent to establish an association and consent to establish an association as the representative of the ○○ church ought to be individually calculated with respect to real estate owned by individuals. In light of the aforementioned legal principles and records, the lower court’s aforementioned determination is justifiable.

5) Therefore, the conclusion of the lower court on the calculation of the number of landowners and consenters is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on calculation of the number of consenters and failing to exhaust

B. Regarding the validity of written consent to the establishment of the association upon the opening of the name

citing the reasoning of the first instance judgment, the lower court determined that it cannot be deemed that the validity of the consent to establish an association, which was written prior to the filing of the consent, was denied on the ground that the owner of a plot of land, etc., required to attach a certificate of personal seal to a document verifying the consent matters when submitting a written consent for the establishment of an association, is to clarify whether the person who signed and sealed the written consent for the establishment of the association consented to the consent by the method of verifying whether the seal imprint affixed to the written consent for the establishment of the association conforms to the seal imprint certificate’s consent.

In light of the relevant legal principles and records, the above judgment of the court below is just, and there are no errors of exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or of misapprehending the legal principles on the validity of written consent for the establishment

C. As to the validity of the consent to appoint a representative by the manager

citing the reasoning of the judgment of the court of first instance, the court below acknowledged the fact that Nonparty 11, the owner of the land of which is 51 square meters in Daejeon Jung-gu ( Address 10 omitted), was appointed by Nonparty 12 as the representative Nonparty 12 and submitted a written consent to establish an association as the representative co-owner after obtaining the written consent to appoint Nonparty 11 as the representative from Nonparty 12, who is a person with superficies. According to Article 11(1) of the Commercial Act, the manager is able to perform all judicial or extrajudicial acts on behalf of the proprietor

In light of the relevant legal principles and records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on the validity of consent to

7. As to ground of appeal No. 10

According to Article 28 (4) of the former Enforcement Decree of the Urban Improvement Act, the owners of land, etc. who intend to withdraw consent to establish an association shall use a certificate of seal impression in writing, and in such cases, the certificate of seal impression shall be attached.

citing the reasoning of the judgment of the court of first instance, the court below acknowledged the fact that the non-party 13 submitted a written consent to establish the association to the promotion committee of this case, sent the written consent to withdraw the association by content-certified mail, and expressed his intention of withdrawal orally, but did not prepare and submit the written request accompanied by the certificate of seal impression, and determined that the above facts alone cannot exclude the validity of the written consent to establish the association already submitted by the non-party 13, on the ground that the withdrawal of consent by the non-party 13 was not a method under

In light of the above legal principles and records, the above judgment of the court below is just, and there is no error of law such as misapprehension of legal principles as alleged in the

8. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party, including the part resulting from participation in the appeal. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Appointeds: Omitted

Justices Jo Hee-de (Presiding Justice)