Dorodong First Apartment Reconstruction Association (Law Firm Samung, Attorneys Lee Dong-ok, Counsel for the plaintiff-appellant)

Defendant 1 and four others (Attorneys Kim Dong-jin et al., Counsel for the defendant-appellant)

January 25, 2005

Seoul Central District Court Decision 2001Gahap34954, 2001Gahap36288 delivered on July 9, 2002

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

The Plaintiff

A. At the same time, Defendant 1 received KRW 330,000,000 from the Plaintiff:

(1) On June 15, 2001, the procedure for the registration of ownership transfer for the real estate listed in the separate sheet 1 shall be implemented; and

(2) The above real estate is named;

B. At the same time, Defendant 2 received KRW 330,000,000 from the Plaintiff:

(1) On June 14, 2001, the procedure for the registration of ownership transfer for the real estate listed in the separate sheet 2 shall be implemented;

(2) The above real estate is named;

C. At the same time, Defendant 3 received KRW 230,000,000 from the Plaintiff;

(1) On June 16, 2001, the procedure for the registration of ownership transfer for the real estate listed in the separate sheet 3 shall be implemented;

(2) The above real estate is named;

D. At the same time, Defendant 4 received KRW 330,000,000 from the Plaintiff:

(1) On June 15, 2001, the procedure for the registration of ownership transfer for the real estate listed in the separate sheet 4 shall be implemented;

(2) The above real estate is named;

E. At the same time, Defendant 5 received KRW 330,000,000 from the Plaintiff;

(1) On June 15, 2001, the procedure for the registration of ownership transfer for the real estate listed in the separate sheet 5 shall be implemented;

(2) The above real estate is named;

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiff's claims are dismissed.

1. Facts of recognition;

The following facts do not conflict between the parties, or comprehensively taking account of the evidence No. 1-2, evidence No. 1-2, evidence No. 1-2, evidence No. 3-8, 9, 11, 17, 25, evidence No. 4, evidence No. 5-2, 3, 5, 6, 8, 8, 10, 13, 19, 22, 23, 24, evidence No. 25-1 through 4, evidence No. 28, evidence No. 28, evidence No. 6-1 through 4, evidence No. 11-1 through 4, evidence No. 13-1 through No. 10, evidence No. 15, 19, 20, evidence No. 21-1, evidence No. 21-2, evidence No. 36, evidence No. 3, and evidence No. 4-1 through No. 36 of the Gangnam-gu court.

A. Status of the parties

The plaintiff is a reconstruction association that obtained authorization for the establishment of Article 44 of the former Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 2003; hereinafter referred to as the "former Housing Construction Promotion Act") from the head of Gangnam-gu on March 23, 2001, with 2,450 households among the 51 Doro apartment units (including 10 square meters and 13 square meters; hereinafter referred to as the "the apartment units of this case") and 49 households of commercial building among the sectional owners (total 2,49 households) of the 49 households of the building building, and 2,012 members who agree to remove the apartment units of this case and commercial buildings, and to reconstruct the apartment units and incidental facilities on the site. The defendants are sectional owners of each of the relevant apartment units of the attached Table of this case.

(b) Progress of the reconstruction project of the Dolet apartment reconstruction association;

(1) When the buildings in the apartment complex of this case become old due to a long period of time after the construction, and there were many expenses for their management, the sectional owners established the reconstruction promotion committee from February 19, 193, and promoted the reconstruction project by receiving a rebuilding resolution from other sectional owners. On July 1, 1995, the inaugural general meeting for the establishment of the Doro apartment reconstruction association (hereinafter “Gu association”) was held to elect the president of the association, etc., adopted the association regulations, and applied for authorization to establish the association with the Gangnam-gu Office on October 28, 1996.

(2) However, on April 1, 1997, the head of Gangnam-gu, the competent authority, requested supplementation of the application documents for authorization to establish the association. The head of Gangnam-gu, the head of Gangnam-gu, applied for renewal of authorization by supplementing documents, but the head of Gangnam-gu reserved the authorization for establishment of the Gu association on the ground that the basic plan for development of the low density apartment zone promoted by Seoul at the time that the site of the apartment complex in this case fell under a low density apartment zone. On July 30, 1997, the head of the Gu association resigned from the head of the Gu association on a personal ground. While Nonparty 2 was appointed as the representative of the association at the time of December 18, 1997, the head of the Gu association, the head of the association, the head of which was the head of the association, was appointed as an agent for the head of the association, the head of the association did not have the authority to represent the Gu association, and the head of the Gu, the head of the Gu, the head of which was notified that part of the housing association was implemented within 98.

After that, on December 199, when re-building association becomes entitled to obtain authorization for establishment after the mediation plan for a low-concentration district of Seoul Metropolitan Government became final and conclusive, the non-party 4 rejected the application for authorization for establishment of the association on September 27, 2000 on the ground that the representative meeting held on February 25, 2000, elected as the president of the association, held a general meeting of association members on April 29, 200, when the non-party 4 was elected as the president of the association, and applied for authorization for establishment of the re-building association in the name of the Doro apartment reconstruction promotion committee on September 27, 200 on the ground that the election of non-party 4 on December 6, 200 violated the regulations of the old association.

(3) Meanwhile, the above non-party 3 filed a lawsuit seeking confirmation that the non-party 2 does not have the authority to act as the president of the old association under the name of the old association with himself as the representative of the old association. On October 10, 200, the Seoul Central District Court decided to dismiss the lawsuit on the ground that the non-party 2 still is the representative of the old association, and the above non-party 3 was not authorized to act as the representative of the old association, and the above judgment became final and conclusive around that time.

C. Inaugural general meeting, etc. of the Plaintiff Union

(1) When the dispute over the appointment, etc. of the head of the Gu association, which can actually lead the reconstruction project, continues to exist, and the application for authorization of establishment of the reconstruction association has been rejected several times, making it difficult to implement the reconstruction project itself. On January 6, 2001, the non-party 5, the chairperson of the council composed of representatives from each building of the apartment of this case, organized the committee for preparation of the reconstruction association's general meeting on February 18, 2001 in order to newly establish the reconstruction association, and then, under the name of the committee for preparation of the above inaugural general meeting, made a public announcement to the effect that "the resolution of reconstruction of the apartment of this case, etc. of this case, the resolution of the association's general meeting of the plaintiff association, the resolution of the head of the association, the election of the head of the association, and the appointment of the representative of the officers of the association, etc., shall be made through the bulletin board and daily newspapers within the apartment complex, the summary of the construction resolution and the construction plan of the plaintiff association's general meeting.

(2) On February 18, 2001, the committee for the preparation of the above inaugural general meeting held the inaugural general meeting (hereinafter “instant inaugural general meeting”) for the establishment, reconstruction, etc. of the Plaintiff Union among the co-owners of the apartment of this case who are deemed to have attended or to have attended at the meeting at the Gangseo-gu Seoul, Seoul. At the same time, the committee for the preparation of the above inaugural general meeting was approved by all the participants in the rebuilding resolution of this case among the agenda items of the inaugural general meeting of this case, establishment of the Plaintiff Union and the regulations of the association, with the consent of the majority of the 575 co-owners in lieu of attending the meeting by submitting the sectional owners themselves, 210 persons present at the meeting, 210 persons present at the representative, and certificate of personal seal impression (written consent of the 640 voters in the inaugural general meeting, 1,373 members in lieu of the attendance at the meeting, with the consent of the majority of the 640 voters present at the meeting of this case, and the election of the president of the association.

D. The rebuilding agreement ratio of the apartment of this case

After the inaugural general meeting of this case, according to the sectional owners of the apartment and commercial buildings of this case submitted a rebuilding resolution to the plaintiff association and joined the rebuilding resolution as members, the plaintiff association as members of 2,012 sectional owners of the apartment and commercial buildings of this case (1,974 members of the apartment association + 38 members of the apartment association) who agreed to rebuilding on March 23, 2001 and obtained authorization for establishment from the head of Gangnam-gu. At the time of authorization for establishment, the rebuilding consent rate by each apartment and commercial building of this case was at least 2/3 (66%) as shown in the attached Form, and the total consent rate was at least 80.6% (2,015/ total number of Dong households 2,49/ total sectional owners 2,499 x 100%) and was at least 4/5 (80%) (Provided, That three members of this case were owned by two households at the time of authorization for establishment, and separate rebuilding resolution on each apartment owned by them were stated in the attached Form 17.

E. Peremptory notice as to the defendants' consent to reconstruction

(1) However, the Defendants did not agree to the reconstruction of the instant apartment, and on April 10, 2001, the Plaintiff Union sent to the Defendants a written peremptory notice stating that they would reply to whether they will participate in the reconstruction under Article 48 of the Multi-Unit Residential Building Act (hereinafter “multi-unitial Building Act”) and that they would exercise the right to demand sale if they did not consent. The Defendants received the written peremptory notice and did not state their intent to participate after the lapse of the maximum period.

(2) Accordingly, the Plaintiff Union filed the instant lawsuit against the Defendants for the transfer of ownership on each real estate listed in the separate sheet owned by them, and the fact that the duplicate of the instant complaint stating the intent of exercising the right to demand sale against the Defendants was delivered to the Defendants on the date stated in the above purport of the claim is apparent.

(3) After obtaining the authorization of establishment on March 23, 2001, the Plaintiff Union joined an additional membership and reached 2,482 members at the time of the authorization of alteration on October 19, 2001, and almost all sectional owners except the Defendants agree to re-building as of the closing date of pleadings at the trial, and the Plaintiff Union obtained the approval of the housing construction project plan from the head of Gangnam-gu on January 14, 2002.

2. Determination on this safety defense

A. Summary of the defendants' assertion

(1) The legitimate convening authority of the inaugural general meeting of this case, which was held for the rebuilding resolution of the apartment of this case, shall be the manager or sectional owner who was appointed at the meeting of the management body pursuant to Articles 32 and 33 of the Aggregate Buildings Act, or one-fifth or more of the voting rights, respectively. However, the non-party 5 who convened the inaugural general meeting of this case did not have been appointed as the manager at the meeting of the management body, and the members of the committee for preparation of the above inaugural general meeting organized by the non-party 5 did not meet the requirements of 1/5 or more of sectional owners and voting rights, so it cannot be the legitimate convening authority of the general

(2) In the case of the inaugural general meeting of this case, a majority of all sectional owners of this case shall be effective pursuant to the provisions of Article 38 of the Aggregate Buildings Act and Article 75 of the Civil Act in the case of the inaugural general meeting of this case. The association of this case shall have 58 persons directly present at the inaugural general meeting, 210 persons present at the meeting and 573 persons present at the meeting in lieu of the total number of sectional owners 2,49 persons present at the meeting and held the inaugural general meeting of this case. However, according to Article 19(5) of the Rules of the association and the notice for convening the inaugural general meeting of this case, if the association wishes to attend the meeting as its representative, it shall be deemed that the association shall have a proxy attend the meeting of this case and submit a written resolution of this case with 30 persons present at the 2nd general meeting, which shall not be required to present at the 5th general meeting, and it shall be deemed that the 210 persons present at the inaugural general meeting and shall not be present at the 5th general meeting.

(3) According to the minutes of the Inaugural General Meeting of this case, the resolution of the Plaintiff Union at the time of the Inaugural General Meeting of this case was passed through booms without investigating the approval, opposition, and the number of votes. As to this procedure, there is an error of failing to verify whether the approval of the bylaws of the Plaintiff Association satisfies the statutory quorum.

(4) Prior to the inaugural general meeting of this case, the former association, whose members are the sectional owners of the apartment of this case, had an entity as a non-corporate association, and even if the former association failed to obtain the authorization of establishment from the competent authority, under the essence of the reconstruction association, it cannot be arbitrarily withdrawn from the association unless there is any unavoidable reason, and even if it is possible to voluntarily withdraw from the association, the members of the Plaintiff association still become the members of the former association since they did not express their intent to withdraw from the association. Thus, the establishment of the Plaintiff association, whose members are already the members of the former association, cannot be overlapped with one association promoting the same reconstruction project within one apartment complex, is null and void as a matter of course.

(5) Therefore, a resolution on the election of the president of the instant inaugural general meeting for the establishment of the Plaintiff’s association and on the bylaws of the association is null and void as a matter of course due to the defects in the above paragraphs (1) through (4), and thus, the Plaintiff association is not capable of being equipped with the substance as a non

B. Determination of party members

(1) Whether there is a defect in the convening authority and convening procedure of the inaugural general meeting of this case

However, according to Articles 23(1) and 41(1) main text of the Act on the Ownership and Management of Aggregate Buildings, a resolution for reconstruction of an aggregate building, such as the apartment of this case, must be adopted at a management body meeting. Here, a management body meeting refers to a group consisting of all sectional owners, in the case of a building which constitutes a sectional ownership relationship, not only through any organization but also the management body meeting, for the management of the building and its site and its appurtenant facilities. There are many cases where the management body meeting for resolution for reconstruction and the inaugural general meeting of a reconstruction association are held at the same time. However, in law, the inaugural general meeting of a housing reconstruction association for the resolution and for the promotion of housing reconstruction are distinct (it does not necessarily require an inaugural general meeting for the establishment of a management body meeting and a housing reconstruction association for the resolution for the resolution for reconstruction). Whether the plaintiff association has the substance of the association as a non-corporate group should be determined by the defects of the general meeting of the association for the establishment of the plaintiff association.

However, the convening authority of the management body meeting for resolution on reconstruction is not required to be convened by the manager in cases where the manager is appointed, the manager shall be the sectional owner and the voting right holder in cases where there is no manager (Article 33(1) and (4) of the Aggregate Buildings Act). However, the manager, sectional owner and the 1/5 or more of the inaugural general meeting of the housing reconstruction association shall not be convened by the manager, sectional owner and the voting right holder, respectively. In addition, the reconstruction association for promoting reconstruction of an aggregate building such as the apartment of this case ordinarily agreed to reconstruction shall hold an inaugural general meeting after the reconstruction promotion committee or a committee for preparation of the reconstruction association's general meeting to elect the head of the association and establish it through organizational acts such as resolution of the association's regulations. Thus, in cases of holding the inaugural general meeting prior to the resolution of the convocation authority or convocation procedure of the general meeting of the reconstruction association, it is difficult to say that there is no special provision governing the convocation authority or convocation procedure in the name of the above sectional owner and the voting right holder of this case's meeting.

(2) Whether the inaugural general meeting of this case falls short of the quorum

The majority opinion, the majority opinion of the management body meeting for rebuilding resolution and the inaugural general meeting of the housing reconstruction association are legally distinguishable, and the election of the president of the association of the plaintiff association and the resolution of the regulations of association do not require the resolution of the management body meeting in accordance with the Aggregate Buildings Act, so Article 38 of the Aggregate Buildings Act, which provides for the quorum of the management body meeting, cannot be a basis provision for the quorum of the inaugural general meeting of this case.

In addition, Article 75 (1) of the Civil Act provides that the resolution of the general meeting shall be made by the attendance of the members and the majority of the voting rights of the members present unless otherwise provided in the Civil Act or the articles of incorporation. However, even if the apartment building in this case is a non-corporate owner, it shall not be naturally a member of the plaintiff's association, but shall be limited to the members of the plaintiff's association with consent to reconstruction. Members of the plaintiff's association are not all sectional owners of the apartment in this case, but to the members of the plaintiff's association. The general meeting in this case is the first stage of the acts of establishing the plaintiff's association through the election of the president of the plaintiff's association and the resolution of the articles of association. Since the owners of the 19th general meeting cannot be seen as having consented to the general meeting of the plaintiff's association without the consent of the 20th general meeting as argued by the defendants, it shall not be deemed as having any effect on the general meeting of the plaintiff's association's establishment by the 19th general meeting.

(3) Whether a resolution on the bylaws is null and void for failing to verify a quorum for resolution

According to the evidence No. 4, the number of union members who agreed to the resolution of the union agreement at the time of the instant inaugural general meeting is recognized as not individually and individually, but according to the above evidence, the non-party 5, who was the chairman of the instant inaugural general meeting, at the time of the instant general meeting, requested that the resolution of the union agreement be obtained in advance after completion of a general explanation about the draft of the union agreement, and that the non-party 5, who was the chairman of the instant general meeting, requested that the resolution of the union agreement be expressed by a large number of union members, and that the majority of union members, who were able to agree to the draft of the agreement, confirmed that the number of union members who opposed to the resolution, was excessive, and confirmed that the draft of the agreement was resolved. Thus, the resolution cannot be deemed null and void merely because the number of union members who

(4) Whether the establishment of the Plaintiff’s association constitutes the establishment of a overlapping association and thus null and void

A person who becomes a member of a reconstruction association by mutual consent for reconstruction is obligated to cooperate for the achievement of the purpose of the association, and voluntary withdrawal from the reconstruction association is not allowed in principle. However, it is reasonable to view that a member may withdraw from the existing reconstruction association exceptionally in case of special circumstances where the reconstruction association cannot achieve the purpose of the association or considerably difficult.

On July 1, 1995, although the inaugural general meeting of the Plaintiff association was held on July 1, 1995, but the basic plan for the development of the Seoul low-concentration apartment zone was not finalized, the resignation of the head of the non-party 1 association on July 30, 1997. Since the former association did not elect the head of the association, internal conflicts on the appointment, etc. of its executive branch were raised from August 1, 1999. The non-party 4, separate from the executive branch of the former association, did not hold a general meeting of association members in the name of the non-corporate group, and the non-party 6 years have passed since the former association was established, it is difficult to see that the former association's application for the reconstruction project had been made voluntarily after it was established for the purpose of promoting the reconstruction project, and it is difficult to see that the former association's application for the new reconstruction project had been made through the head of the Gangnam-gu National Housing Association's non-permanent committee.

Furthermore, since it is substantially difficult for the members of the Plaintiff association to promote a reconstruction project through the Plaintiff association, it is no longer necessary to maintain the status of the members of the Plaintiff association because they were established for the purpose of continuing the reconstruction project. The rebuilding resolution of this case submitted by the members of the Plaintiff association to the Plaintiff association states that the consent to the reconstruction resolution of the Plaintiff association and the consent to the regulations of the Plaintiff association is withdrawn and the withdrawal of the former association is withdrawn. The members of the executive branch of the Plaintiff association appear to have been well aware of the purpose and circumstance of the establishment of the Plaintiff association as the sectional owners of the apartment of this case, and there is no evidence to prove that there is no special provision regarding the method of withdrawing members of the Plaintiff association, it is reasonable to view that the former association was sufficiently aware of the intent of withdrawing members of the Plaintiff association, which is clearly expressed externally through the process of the establishment of the Plaintiff association. Accordingly, the members of the Plaintiff association were lawfully withdrawn from the Plaintiff association. Therefore, there is no reason to assert this part of the Defendants' assertion that the members of the Plaintiff association still joined the Plaintiff association.

3. Judgment on the merits

A. The assertion

(1) Summary of the Plaintiff’s assertion

The plaintiff exercised the right to demand sale under Article 48 of the Multi-Family Building Act by serving a copy of the complaint of this case on the defendants who did not participate in the reconstruction on the basis of legitimate rebuilding resolution concerning the apartment of this case. Thus, the defendants are obligated to implement the procedure for ownership transfer registration for each real estate listed in the separate sheet owned by them, and to issue an order for each of the above real estate.

(2) Summary of the defendants' assertion

The rebuilding resolution of the Plaintiff Union is unlawful, invalid, or unlawful for the following reasons.

(A) The rebuilding resolution at the inaugural general meeting of this case was convened by a person who is not the convening authority of the inaugural general meeting by the rebuilding resolution, and did not meet the quorum by the rebuilding resolution due to the same reasons as stated in Article 2- A. (2). Moreover, the rebuilding resolution of the Plaintiff association is invalid since the outline of the design drawing of the new building and the matters concerning the ownership of sectional ownership of the sectional ownership of the new building prescribed by Article 47(3) of the Act on the Ownership and Management of Aggregate Buildings are omitted. The rebuilding resolution of the Plaintiff association is not only a general apportionment amount but also a specific standard for bearing the cost but also a degree that must be re-established at the stage of rebuilding execution because it does not provide for the maintenance of equity among sectional owners.

(B) Even if the rebuilding resolution of the Plaintiff Union is valid, the peremptory notice sent by the Plaintiff Union to the Defendants on April 10, 2001 does not include a specific rebuilding resolution to the extent that the Defendants can determine whether to participate in the rebuilding. Therefore, it cannot be said that it is a legitimate peremptory notice as an element for the claim for sale claim.

B. Determination of party members

(1) Whether a legitimate rebuilding resolution is adopted

(A) Whether the quorum of rebuilding resolution is met

1) Article 47 of the Aggregate Buildings Act provides, “If the building is damaged or partly destroyed after a considerable period of time has elapsed since its construction, or excessive cost of repair, restoration, or management is required compared to its price under other circumstances, or if the building is reconstructed due to a change of neighboring land use or under other circumstances, the management body meeting may adopt a resolution to remove the building and use its site as the site of a new building which may become the object of sectional ownership (Paragraph 1), and “The resolution under paragraph 1 shall be adopted by a majority of not less than 4/5 of sectional owners and voting rights, respectively (Paragraph 2).” In the case of Article 44-3(7) of the former Housing Construction Promotion Act, “If the owners of old or poor houses on which several buildings exist in one housing complex intend to be reconstructed, a resolution to relax voting rights by not less than 3/5 of sectional owners and voting rights by each building in the housing complex and not less than 4/5 of the whole housing complex may be adopted, notwithstanding Article 47(1) and (2) of the Aggregate Buildings Act.”

2) As to the inaugural general meeting of this case, the reconstruction project of the Plaintiff association is a case where several sectional owners of the instant apartment and the instant apartment and the instant apartment and the instant commercial buildings, which are a single housing complex, intend to reconstruct collectively, and there is no evidence to support that there was 2/3 or more resolution of the sectional owners and voting rights and 4/5 or more of all sectional owners and voting rights within the housing complex at the time of the instant inaugural general meeting of this case at the time of February 18, 2001, there is no evidence to support that there was a consent of the 2/3 or more of the sectional owners and voting rights and 4/5 or more of the entire sectional owners and voting rights within the housing complex (if the Plaintiff association's assertion was accepted and all members of the instant general meeting were assumed to consent to reconstruct, this is merely a case where the half of all sectional owners at the time of the instant general meeting exceeds the amount under Article 2,499), and it is not necessary to view that the reconstruction resolution of this case is a valid resolution for reconstruction.

3) However, Article 41 (1) of the Aggregate Buildings Act provides that "where there exists an agreement in writing with the sectional owners and voting rights which shall be resolved by the management body meeting in accordance with this Act or regulations, the resolution of the management body meeting shall be deemed to have been adopted." Since the rebuilding resolution requires the management body meeting to adopt a resolution, the rebuilding resolution may also be adopted in writing. On the other hand, the purport of the above provision is to treat this written resolution as the same as the resolution of the management body meeting in the case of the above written resolution, even though the management body meeting does not open, it does not necessarily need to convene and hold the management body meeting (see Supreme Court Decision 98Da17572 delivered on August 20, 199). Thus, even if the rebuilding resolution which was adopted at the general meeting of the management body meeting of the plaintiff association does not have the effect, if it satisfies the requirements for re-building resolution in writing, it shall be deemed that there was an effective re-building resolution.

As to the instant case, after the rebuilding resolution at the inaugural general meeting of this case, the Plaintiff Union individually persuades the non-member of the general meeting and the sectional owners opposing the rebuilding resolution of this case, and received the rebuilding resolution of this case, and as a result, until March 23, 2001, at least 2/3 of the sectional owners and voting rights by each Dong of the instant apartment and commercial building, and at least 4/5 of all the sectional owners and voting rights, the Plaintiff Union set up a quorum necessary for the rebuilding resolution of this case which is demanded by the former Housing Construction Promotion Act, which is required by the former Housing Construction Promotion Act, at least 4/5 of all the sectional owners and voting rights, and therefore

The defendants asserted that, among the rebuilding resolution of this case submitted by the plaintiff union to the head of Gangnam-gu, the use of the certificate of the personal seal impression attached to the old union around April 200, the purpose of the rebuilding resolution is not that of the reconstruction resolution, and that the person who prepared the rebuilding resolution was altered. Thus, the rebuilding resolution of the plaintiff union is below the quorum under the former Housing Construction Promotion Act. However, the purport of allowing the rebuilding resolution to be attached to the rebuilding resolution is to confirm whether the above rebuilding resolution was formed by the true will. Thus, although the certificate of the personal seal impression attached to the consent form submitted to the old union around April 200 or the purpose of the rebuilding resolution is not stated in the consent form, the consent form cannot be excluded as long as the owner's intent related to the consent form cannot be seen to have been genuine, and the defendants' evidence Nos. 45, 46-1 to 47, 15-1 to 47, 15-1 to 47, each evidence No. 97-1 to 15-4, 7, and 15-1-4 of the rebuilding resolution cannot be accepted.

(B) Whether the resolution on the rebuilding resolution is valid

1) In making a resolution for reconstruction, Article 47(3) of the Aggregate Buildings Act provides that the outline of the design of the new building, estimated amount of expenses required for the removal of the building and construction of the new building, matters concerning the apportionment of expenses, and matters concerning the allotment of sectional ownership of the new building shall be determined. In particular, the matters concerning the apportionment of rebuilding expenses shall be the basis for the sectional owners to determine whether to participate in reconstruction at the expense of reasonable expenses, or whether to sell sectional ownership, etc. at the market price and not to participate in reconstruction at the expense of reconstruction. Thus, it is sufficient to determine the allocation or calculation standards to the extent that it may not be agreed again at the stage of the implementation of reconstruction (see Supreme Court Decision 201Da77819, Mar. 15, 2002).

However, whether there was a valid resolution on the resolution under Article 47 (3) of the Aggregate Buildings Act shall not only be based on the contents stated in the rebuilding resolution of this case, but also on the comprehensive review of the contents of the rules and business plan of the plaintiff association at the time of the rebuilding resolution, it shall be determined whether the sectional owners were aware of and consented to the resolution under the above provision of the Act at the time of the rebuilding.

2) 돌이켜 이 사건에 관하여 보건대, 갑제2호증, 갑제10호증, 갑제23호증의 각 기재에 의하면, 원고 조합의 창립총회 준비위원회가 이 사건 창립총회 이전에 구분소유자들에게 배포한 창립총회 안내 책자에 첨부된 사업계획안에는 신축건물의 설계개요에 관하여 각 평형별 세대수(26평형 596세대, 34평형 899세대, 44평형 1,006세대, 50평형 377세대, 62형평 44세대, 77평형 22세대 합계 2,944세대)와 용적율(273.95%)이 기재되어 있고, 건물 철거 및 신축비용 개산액에 관하여는 각 항목별(건축비, 감리비, 안전진단비, 인입공사, 조합운영비, 회계, 세무, 등기비용, 감정평가, 소송비용, 인허가 비용, 부가가치세, 예비비등)로 산출내역 및 금액(합계 483,124,215원)이 기재되어 있으며, 건물 철거 및 신축비용 분담에 관한 사항에 관하여는 “① 도곡동 제1차 아파트 재건축사업은 사업단(건설업체) 선정시 주민이 결정한 도급제 방식으로 사업을 추진하며, 재건축결의 및 사업시행 동의서 상에 표시되지 않은 사항은 조합 규약이 정하는 바에 따라 부과하고 징수합니다. ② 조합원 분담금은 조합원에게 분양하고 남는 아파트 및 부대 시설물(상가 등)의 일반 분양 수입금과 분양 부담금으로 우선 충당하되 잔여금을 재건축에 참여한 조합원이 종전의 토지 및 주택의 면적·위치, 신건물 등을 고려하여 공평하게 분담하게 됩니다. ③ 평형별 조합원 예상 부담금 산출은 사업계획 수립일 현재(2001년 2월)를 기준으로 산출한 예상수지분석에 의하여 작성하였으며, 추후 조합규약이 정하는 기준에 따라 수립되는 관리처분 계획에 의해 구체화되면서 가청산이 되는 것이며, 입주 후 청산시 분담금이 최종 확정됩니다.”라고 기재되어 있고, 신축건물 구분소유권의 귀속에 관한 사항에 대하여는 “재건축결의서에 표시되지 않은 사항은 조합 규약에서 정하는 관리처분 계획 기준에 따르며, 분양평형 결정은 조합원 분양신청에 의하되 경합이 있는 경우 총회 또는 대의원회 결의로 확정되는 것입니다. ① 공동주택(아파트)의 경우 전유면적이 큰 조합원에게 우선적으로 분양을 하며, 조합원에 대한 평형배정은 사업계획 승인후 규약이 정하는 바에 따라 실시하는 분양신청서에 의해 배정하되, 동·호수 배정은 공개추첨에 의하혀 정하여지게 됩니다.”라고 각 기재되어 있으며, 이 사건 재건축결의서에는 신축건물의 설계개요에 관하여 “대지면적 : 약 150,248.4㎡(약 45,450평), 건축연면적 : 570,730.9㎡(약 172,646평), 규모 : 공동주택 지하 3층, 지상 13~25층 2,944세대”, 건물의 철거 및 신축건물의 건축에 소요되는 비용의 개산액에 관하여 “철거비 : 30억원, 건축비용 : 4,488억원, 기타 사업비용 : 313억원, 합계 : 4,831억원”, 건물의 철거 및 신축건물의 건축에 소요되는 비용의 분담에 관한 사항 중 공동주책 소유조합원의 예상 비용 분담금액에 관하여는 “현재 10평형 아파트 소유의 조합원이 26평형 선택시 7,223,000원(환급), 34평형 선택시 90,777,000원, 44평형 선택시 242,377,000원, 50평형 선택시 354,777,000원, 62평형 선택시 553,577,000원, 77평형 선택시 785,777,000원, 현재 13형평 아파트 소유의 조합원이 26평형 선택시 71,922,000원(환급), 34평형 선택시 26,078,000원, 44평형 선택시 177,678,000원, 50평형 선택시 290,078,000원, 62평형 선택시 488,878,000원, 77평형 선택시 721,078,000원”, 분담금 산출 기준에 관하여는 “조합원 분담금 = 분양 받을 아파트의 분양금액 - 조합원 권리지분 금액, 조합원 권리지분 금액 = 조합원 소유대지지분 면적(평) × 대지지분 평당 권리지분 배분금액, 대지지분 평당 권리지분 배분금액 = 개발이익금 ÷ 조합원 소유 대지지분 총면적, 개발이익금 = 총 수입금액 - 총지출(사업비) 금액”으로 각 기재되어 있고, 신축건물의 구분소유권 귀속에 관한 사항에 대하여는 위 사업계획안에 기재된 내용과 동일한 내용이 기재되어 있으며, 원고 조합의 규약 제39조는 조합원의 소유재산에 관한 관리처분계획에 대한 기준을 규정하고 있는 사실을 각 인정할 수 있는바, 위 인정 사실 및 아파트 재건축은 보통 개별 동에 국한되지 아니하고 수 개의 동으로 이루어진 일단의 단지 내에 존재하는 수많은 구분소유자 전원을 상대로 하는 사업인 만큼 그 추진과정에서 다양한 이해관계가 교차되어 의견을 통일하기가 쉽지 않고, 그 추진과정에서 재건축에 추가로 참가하거나 탈퇴하는 구분소유자가 생길 수 있을 뿐 아니라 법령의 개정, 주택시장의 변화 등으로 외부 여건이 변동하게 마련이어서 재건축을 추진하는 과정에서 그 추진계획이 변경되거나 좀더 구체화 될 수밖에 없다는 점들을 종합하면, 이 사건 재건축결의에 있어 신축건물의 개요, 건물의 철거 및 신축건물의 건축에 소요되는 비용의 개산액과 그 비용분담액 및 산출기준, 신축건물의 구분소유권 귀속에 관한 사항에 대한 결의는 구분소유자들로 하여금 재건축결의에 참가할지 여부를 결정하는 기준이 되기에 충분할 정도의 구체성을 갖추어 유효하다고 봄이 상당하다.

(c)Indemy:

Therefore, despite the defect that the reconstruction resolution of the plaintiff association is the non-requirements of the general meeting of the meeting, it is necessary to establish a quorum for reconstruction resolution by the written resolution at the time of obtaining the authorization of establishment from the head of Gangnam-gu, and it is deemed that a valid resolution has been made on the matters of reconstruction resolution under Article 47 (3) of the Aggregate Buildings Act.

(2) Whether the requirements for exercising the right to sell are satisfied

(A) Peremptory time and duration of exercise of sales claim

1) Article 48 of the Aggregate Buildings Act provides that when a resolution for re-building has been adopted, the person who convened the meeting shall, without delay, demand in writing the sectional owner who did not approve the resolution to reply to whether he will participate in the re-building in accordance with the contents of the resolution, and the sectional owner who received the notification shall reply within two months from the date of receipt of the notification, and if he does not reply within the above period, he shall be deemed to have dispatched a reply to the effect that he would not participate in the re-building. In this case, each sectional owner who approved the resolution for re-building, each sectional owner who confirmed that he would not participate in the re-building, or each sectional owner who confirmed that he would be entitled to purchase the sectional ownership and right to use the site from the expiration date of the above period, may demand that the sectional owner who responded to the purport that he would not participate in the re-building be sold at the market price.

2) First of all, there is a defect in the inaugural general meeting of this case (referring to the inaugural general meeting for the establishment of the plaintiff association), and the defendants' assertion that the establishment of the plaintiff association is null and void is not well-grounded. The reconstruction association consisting solely of sectional owners participating in the reconstruction and the reconstruction association which obtained authorization for the establishment under the above former Housing Construction Promotion Act does not belong to all sectional owners participating in the reconstruction. Thus, the plaintiff association may exercise its right to demand sale on behalf of all sectional owners. Meanwhile, the peremptory notice as to whether to give consent to sale for the exercise of the right to demand sale should be given without delay after the rebuilding resolution has been adopted. Since the plaintiff association made peremptory notice to the defendants on April 10, 201, which satisfies the requirements for legitimate resolution of rebuilding on March 23, 2001, the plaintiff association notified the defendants as to whether to consent

3) In addition, notwithstanding the notice given by the Plaintiff Union, the Defendants did not reply to it within two months, or responded to the refusal, and the purport of exercising the Plaintiff Union’s right to demand sale against the Defendants is stated, but the fact that the duplicate of the complaint of this case was served to the Defendants before the lapse of two months after the expiration of the period for exercising the right to demand sale after the expiration of the period for exercising the right to demand sale, has no dispute between the parties, and thus, the effect of the right to demand sale becomes effective on the delivery date of the copy of the complaint of this case, and the market price at that

(b) Descriptions of a peremptory notice

Even if the Plaintiff Union did not state the matters regarding the rebuilding resolution, etc. in the notice sent by the Plaintiff Union to the Defendants as alleged by the Defendants, the Defendants were aware of the draft of the project plan, etc. sent by the Plaintiff Union to the Defendants in the course of implementing the reconstruction project, or through the solicitation or use of participation in reconstruction, etc., and as long as the opportunity to participate in reconstruction was sufficiently given in the course of the pleading of this case, the highest notice of the Plaintiff Union may be deemed unlawful solely on the ground that the matters

(C) Other defendants' assertion and judgment as to this.

The defendants also have the status of becoming a partner of the plaintiff association because they are sectional owners of apartment buildings, etc. of this case. Thus, the defendants' exercise of the right to demand sale on the premise that the plaintiff association is not a member of the plaintiff association is unfair, and the plaintiff union decided to order the defendants to dismiss the defendants even if the defendants join the plaintiff association at the ordinary meeting of May 11, 2002. The plaintiff union asserted that the plaintiff union's refusal to join the plaintiff association as such and the defendant's exercise of the right to demand sale against the defendants is illegal. However, the above assertion by the defendants cannot be a document to determine the legitimacy of the plaintiff association's exercise of the right to demand sale.

(3) Whether the sale price is adequate

As above, if the right to demand sale under Article 48 (4) of the Aggregate Buildings Act is exercised, the expression of intention to exercise the right to demand sale has reached, and at the same time a sale contract is established based on the market price with respect to the sectional ownership and right to use site of a person who has not participated in reconstruction. In this case, the market price refers to the price which is assessed as a whole the sectional ownership and right to use site under the premise that there was a reconstruction resolution on the building, not the transaction price premised on the condition that the right to demand sale and right to use site should be removed after being worn out as the objective transaction price of the sectional ownership and right to use site at the time when the right to demand sale has been exercised (see Supreme Court Decision 95Da38172, Jan.

In full view of the purport of the argument as a result of the market price appraisal of the public health room and the first instance trial appraiser's opinion on this case, the market price was calculated at the price reflected in the development gains from the reconstruction project in consideration of all the factors such as the location, surrounding situation, accessibility, etc. of the apartment of this case as of June 5, 201 in which the above appraiser filed the lawsuit of this case. The market price of the apartment of this case calculated as above is 30,000,000 won in case of each real estate (13 square) listed in the attached Table 1, 2, 4, 5, and 330,000,000 won in case of each real estate (10 square meters) listed in the attached Table 3 real estate (10 square meters), and the market price calculated as of June 5, 201 is reasonable in light of the process of evaluation or various factors considered, and thus, it is sufficient for the association to pay the above appraisal price to each of the above Defendants.

4. Conclusion

Therefore, as the exercise of the right to demand sale of this case, a sales contract is established between the Plaintiff and the Defendants, and the Defendants are paid in return for the amount stated in their claims from the Plaintiff Union, and the Plaintiff is obligated to take procedures for the registration of ownership transfer based on each date of sale stated in the separate sheet with respect to each real estate in their possession, and to order the above real estate. Accordingly, the judgment of the court of first instance is justifiable in conclusion. Accordingly, the Defendants’ appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all.

Judges Cho Yong-ho (Presiding Judge)