(영문) 부산지방법원 동부지원 2008.11.6.선고 2008가합1872 판결

1. AA Construction Co., Ltd., BB Construction Co., Ltd., and a resolution selected by the resident general meeting of June 30, 2003 by the Defendant as a joint implementer of the housing redevelopment improvement project (joint implementer) as AA Construction Co., Ltd. and BB Construction Co., Ltd. on April 21, 2006 by the resident general meeting of shareholders to select as a joint implementer of the housing redevelopment improvement project (joint implementer) as AA Construction Co., Ltd., BB Construction Co.

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Basic facts

The following facts shall not be disputed between the parties, or may be acknowledged by comprehensively considering the whole purport of the pleadings in each entry of Gap evidence 1-1 through 3, Gap evidence 2-1 through 5, Eul evidence 1-2, and Eul evidence 1-2:

A. The defendant is a non-corporate body approved by the head of the Busan Shipping Authority on December 30, 2003 pursuant to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the "Urban Improvement Act") for the purpose of preparing a housing redevelopment improvement project by making a square 160,730 meters wide from Busan Shipping Daegu Dong, Busan Metropolitan City, the project implementation district of which is the project implementation district, and the plaintiffs are the owners of land, etc. under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents within the above project area,

B. On June 30, 2003, before obtaining approval for establishment from the head of the Busan Metropolitan Government, the defendant held a general meeting of residents on June 30, 2003, and passed a resolution to select the construction works for the housing redevelopment improvement project (hereinafter referred to as "the first resolution of this case") as AA Construction Corporation and BB Construction Corporation (hereinafter referred to as "the first resolution of this case"). After receiving approval for establishment from the head of the Busan Metropolitan Government Shipping Authority, on March 21, 2006, the public announcement was made on March 21, 2006, and then on April 21 of the same year, the residents' general meeting passed a resolution to select the construction works for the housing redevelopment improvement project as AA Construction Corporation, BB Construction Corporation, andCC Construction Corporation (hereinafter referred to as "the second resolution of this case").

C. Of the Urban Improvement Act and the Enforcement Decree of the same Act (hereinafter referred to as the "Enforcement Decree"), the second resolution was made at the time of the second resolution, and the amended Urban Improvement Act and the relevant provisions are as stated in the attached Table (the provisions of the Urban Improvement Act and the Enforcement Decree of the same Act, which were in force at the time of the first resolution, were limited to those at the time of the second resolution, and those at the time of the second resolution, but they were limited to those after the authorization was granted for the implementation of the project (Article 11 of the same Act). Since then, after the amendment by Act No. 7392 of March 18, 2005, the urban redevelopment project should be selected only after the authorization was granted for the implementation of the housing redevelopment project, and in the case of the housing redevelopment project, after the abolition of the restriction on the time of the selection of the project at the time of the implementation of the housing redevelopment project, it was limited after the authorization for the implementation of the housing redevelopment project was again amended to May 24, 2006.

2. Determination as to the cause of action

A. First, we examine the invalidity of the first resolution of this case. According to Article 11 of the Act on the Maintenance and Improvement of Urban Areas, which was enforced at the time of the first resolution of this case, the association or the owner of land, etc. shall select a constructor under Article 9 of the Framework Act on the Construction Industry or a registered business operator deemed a constructor under Article 12 (1) of the Housing Act after obtaining authorization for the implementation of the project. The first resolution of this case was made before obtaining approval for the establishment of the committee, and as such, it was not only violated of the above Act but also the right to select the construction works for the redevelopment of housing is not established at the promotion committee, but also to the redevelopment and improvement project association to be established in the future. Thus, the first resolution

B. Next, we examine the invalidity of the second resolution of this case.

On the other hand, Article 14 of the Urban Improvement Act and Articles 22 and 23 of the Enforcement Decree of the same Act, which were enforced at the time of the second resolution of this case, stipulate the defendant's duties to obtain consent from the owners of lands, etc. above a certain percentage of the cost bearing by the owners of lands, etc., but there is no separate provision regarding the selection of the contractor. Article 24 of the same Act explicitly stipulates that the selection of the contractor shall be subject to the resolution of the general meeting of the association members, and Article 8 of the same Act explicitly stipulates that the housing redevelopment project may be implemented by the association or jointly implemented with the constructors, etc. with the consent of a majority of the association members. In light of the above provisions related to the Urban Improvement Act, it is reasonable to deem that the selection of the contractor is not the authority of the promotion committee or the general meeting of residents

3. The defendant's assertion and judgment as to it

A. The defendant's assertion

The defendant asserts that, prior to the amendment of the Urban Improvement Act (amended by Act No. 7960 of May 24, 2006) by Act No. 7960 of May 24, 2006, "Housing Redevelopment Project Association and Urban Redevelopment Project Association shall select a constructor or a registered project operator after obtaining authorization for the establishment of a housing redevelopment project," and that, after obtaining authorization for the establishment of a housing redevelopment project, the housing redevelopment project association or Urban Redevelopment Project Association shall select a constructor or a registered project operator as a contractor after obtaining authorization for the establishment of a project.

B. Determination

According to Article 11 of the Act on the Maintenance and Improvement of Urban Areas (wholly amended by Act No. 7056 of Dec. 31, 2003), the association or the owner of land, etc. shall select as the contractor the constructor the constructor under Article 9 of the Framework Act on the Construction Industry or the person who is deemed the constructor under Article 12 (1) of the Housing Act after obtaining authorization for the implementation of the relevant project. However, prior to the amendment of the Act on the Maintenance and Improvement of Urban Areas (Act No. 7392 of Mar. 18, 2005), it is possible to select all the contractor after the authorization for the implementation of the housing reconstruction project or the housing redevelopment project. As such, the Defendant’s assertion that there was no restriction on the timing of selecting the contractor under the Act on the Maintenance and Improvement of Urban Areas, which was implemented at the time of the first resolution of the said case, was without merit (the right to select the contractor at the time of the implementation of the Housing Redevelopment Projects cannot be generally deemed to be the right of the committee).

4. Conclusion

Therefore, each of the instant resolutions is invalid, and as long as the defendant asserts that each of the above resolutions is valid, the plaintiffs are interested in seeking confirmation. Thus, the plaintiffs' claims in this case are justified, and it is so decided as per Disposition by the assent of all.