[1] Where a reconstruction association bears the duty to pay liquidation money to the owner of land, etc. pursuant to Article 47 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the relationship between the duty to transfer land and the duty to pay liquidation money to the project implementer without registration of restriction

[2] Where a reconstruction association member becomes a person subject to cash liquidation due to reasons such as not applying for parcelling-out (affirmative), whether he/she loses his/her status as a member (=the date following the expiration date of the period of application for parcelling-out)

[1] Article 536 of the Civil Act, Articles 47 and 48 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents / [2] Article 47 of the Act on the Maintenance

[1] Supreme Court Decision 2008Da37780 Decided October 9, 2008 (Gong2008Ha, 1544) / [2] Supreme Court Decision 2009Da32850, 32867 Decided September 10, 2009

(1) A person who intends to obtain permission from the head of a Si/Gun/Gu shall obtain permission from the head of a Si/Gun/Gu.

Defendant 1 and two others (Attorneys Cho Dong-hwan et al., Counsel for the defendant-appellee)

Suwon District Court Decision 2009Na2269 Decided September 18, 2009

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

According to Article 47 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”), a reconstruction association shall liquidate land, buildings or other rights in cash within 150 days from the date of falling under the case of a person who fails to apply for parcelling-out, a person who has withdrawn an application for parcelling-out, or a person who is excluded from the object of parcelling-out according to a management and disposal plan approved pursuant to Article 48 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, and Article 42(4) of the Articles of association of

Meanwhile, in cases where a reconstruction association bears the obligation to pay liquidation money to a landowner, such as land, etc., under the principle of equity, the owner of land, etc. bears the obligation to transfer ownership of land, etc. to the association without any restriction on rights, and the obligation to transfer ownership without such restriction on rights and the obligation of the project implementer to pay liquidation money simultaneously (see Supreme Court Decision 2008Da37780, Oct. 9, 2008, etc.).

The court below acknowledged that the plaintiff reconstruction association made a resolution to dismiss the Defendants from the members of the association, and the judgment that the above expulsion is null and void. Accordingly, the Defendants did not apply for parcelling-out within a fixed period, but the Plaintiff association did not apply for parcelling-out as the Defendants are subject to cash liquidation. The Defendants did not apply for parcelling-out and deposited to the Plaintiff association. The Defendants' assertion that they are merely obligated to transfer the ownership of each house to the Plaintiff association at the same time as they received settlement money from the Plaintiff association because they were subject to cash liquidation because they did not apply for parcelling-out and did not apply for parcelling-out, and they do not bear the obligation to transfer the ownership transfer registration due to the trust (record 157-158) as a part of performing the obligation to contribute in kind as stipulated in the articles of association of the association (Records 157-158). On the premise that the Defendants are members of the Plaintiff association, on the premise that they are still members of the Plaintiff association, the Defendants were obligated to perform the obligation to perform the obligation to contribute in kind in accordance with the articles of association.

However, the purpose of the Act on the Maintenance of Urban Areas and the Articles of Incorporation is to ensure that a reconstruction project can be implemented promptly and without interruption by making it possible to liquidate cash for the association members who did not apply for parcelling-out. Article 10(1) of the Association’s articles of incorporation provides for various rights and obligations of the association members. Since the details of apartment purchase and the liquidation amount to be borne by the association members after the application for parcelling-out can not be exercised as the principal right of the association members, it is reasonable to view that the person subject to cash settlement can be exempted from the obligations of the association members corresponding thereto under the principle of equity, i.e., the duty to pay expenses for the project cost and liquidation amount, and the duty to register trust, and if the person subject to cash settlement is deemed to bear the duty of registration of trust for the association, it is difficult to view that it is an reserved land for accomplishing the original purpose of trust by rebuilding the previous building, or that it is difficult to view that the association members lose the status of the association members as the one subject to settlement under the Act on the Maintenance of Urban Areas and other than the Association.

In addition, the time to lose the status of a union member should be deemed to lose the status of the union member following the expiration date of the application period for parcelling-out, as the time when the cash liquidation relationship has been established in a reconstruction project and the obligation to pay the liquidation amount of the union is incurred and the value of rights such as land due to cash liquidation has been assessed.

In light of the above legal principles, the court below should determine whether the Defendants were subject to cash settlement due to the lack of application for parcelling-out, thereby losing their status as a member of the Plaintiff union; whether the Defendants asserted in the Plaintiff union included the purport of seeking the implementation of the registration procedure for transfer of ownership following cash settlement; if so, whether the liquidation money deposited by the Plaintiff union is a legitimate repayment deposit, and whether the obligation to pay the liquidation money of the Plaintiff union is a simultaneous performance relationship with the Defendants’ obligation to transfer ownership.

Nevertheless, the court below accepted the claim of this case from the Plaintiff Union on different premise and rejected the Defendants’ assertion. In so doing, the court below erred by misapprehending the legal principles on cash settlement under the Urban Improvement Act, thereby adversely affecting the conclusion of the judgment.

The ground of appeal pointing this out is with merit.

2. Regarding ground of appeal No. 2

After comprehensively taking account of the relevant employment evidence, the lower court determined that the resolution for expulsion of members against the Defendants of the Plaintiff Union was null and void, and that it cannot be deemed that it was converted to the resolution that approves the Defendants’ intent to withdraw from the association.

In light of the records, the fact-finding and judgment of the court below are all justified.

The court below did not err in the misapprehension of legal principle as to conversion of invalidation act as otherwise alleged in the ground of appeal.

The ground of appeal on this part is without merit.

3. Conclusion

Therefore, the lower judgment is reversed, 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 Yang Chang-soo (Presiding Justice)