In a case where the general meeting of the members of a housing redevelopment and rearrangement project association has made a resolution on the draft of a project implementation plan and a management and disposal plan, and again obtained the authorization of the competent administrative agency by modifying a new project implementation plan and management and disposal plan through a resolution at the general meeting of members, whether a lawsuit may be brought to confirm the validity of the general meeting of members (negative in principle), and in a case where there is a defect in the previous resolution on the draft of a project implementation plan and

Articles 24(3)10, 28, and 48 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Articles 12 and 35 of the Administrative Litigation Act

Supreme Court en banc Decision 2007Da2428 Decided September 17, 2009 (Gong2009Ha, 1648), Supreme Court Decision 2009Ma596 Decided November 2, 2009 (Gong2009Ha, 2010), Supreme Court Decision 2009Da63694 Decided October 28, 2010 (Gong2010Ha, 2151), Supreme Court Decision 2010Da10986 Decided April 12, 2012 (Gong2012Sang, 743)

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

Dobongcheon-2 District Housing Redevelopment and Improvement Project Association (Attorney Kim Young-young et al., Counsel for the plaintiff-appellant)

Large forest industry corporation

Seoul High Court Decision 2012Nu10163 decided September 25, 2012

The judgment below is reversed and the case is remanded to Seoul High Court.

Judgment ex officio is made.

1. If a project implementation plan and a management and disposal plan formulated by a housing redevelopment and improvement project association based on the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”), are authorized and publicly announced by the competent administrative agency, the project implementation plan and management and disposal plan shall take effect as an administrative disposition. In such cases, even if there is a defect in the resolution at the relevant general meeting as one of the procedural requirements leading to the project implementation plan and management and disposal plan, the project implementation plan and management and disposal plan, which are administrative disposition, shall be revoked or invalidated by means of an appeal litigation, and filing a lawsuit seeking confirmation that separately removes only the portion of the resolution at the relevant general meeting and separately contests the validity of the resolution, barring special circumstances (see, e.g., Supreme Court en banc Decision 2007Da2428, Sept. 17, 2009; Supreme Court Order 2009Ma596

Therefore, even in a case where the general meeting of the association members of a housing redevelopment project association has passed a resolution on the draft of the project implementation plan and the draft of the management and disposition plan, and again obtained the authorization of the competent administrative agency after the general meeting of the association members through a new resolution, the revocation or invalidity of the changed project implementation plan and the management and disposition plan, which are an administrative disposition, shall be sought as an appeal litigation against the changed project implementation plan and the draft of the management and disposition plan, and a lawsuit seeking confirmation of invalidity is not allowed unless there are special circumstances. Furthermore, even if there are defects in the previous draft of the project implementation plan and the draft of the management and disposition plan before the amendment, barring special circumstances, seeking confirmation of invalidity of the previous resolution is merely seeking confirmation of the past legal relations or legal relationship, and there is no benefit of confirmation as an element of rights protection (see, e.g., Supreme Court Decisions 2009Da63694, Oct. 28, 2010; 20

2. According to the reasoning of the lower judgment and the record, the first Defendant held a general meeting to formulate a management and disposal plan on November 26, 2010, and passed a resolution on the case concerning the amendment of the instant project plan and the instant management and disposal plan (hereinafter “instant management and disposal plan”) which are the agenda items No. 4, and “the case concerning the amendment of the project plan according to the floor area ratio” which is the agenda item No. 5 (hereinafter “the instant management and disposal plan”). On May 27, 2011, the lower court held a general meeting on May 27, 2011 and passed a resolution on May 4, 201 (hereinafter “instant amendment of the project plan”). The Plaintiffs filed the instant lawsuit seeking nullification of the instant amendment of the management and disposal plan of this case, and (2) after the closing of the argument of the lower court, the Defendant obtained the amendment of the project implementation plan and the instant management and disposal plan to amend the project implementation plan (hereinafter “final amendment plan and the instant management and disposal plan”).

3. Examining the above facts in light of the legal principles as seen earlier, it is determined as follows.

In this case where the draft of the instant project plan and the instant management and disposal plan were modified through a new resolution of the general meeting of partners, and the revised draft of the project implementation plan and the approval of the management and disposal plan were approved, even though there are defects in the draft of the original project implementation plan and the draft of the instant management and disposal plan, the Plaintiffs shall seek revocation or invalidity confirmation of the final project implementation plan and the management and disposal plan which became effective as the above, and separately filing a lawsuit seeking confirmation of the validity of the resolution of the previous general meeting, which is only one of the procedural requirements leading to the above administrative disposition, shall not be allowed unless there are special circumstances. Moreover, it is sufficient to view that the Plaintiffs’ filing a lawsuit seeking confirmation of invalidity of the amendment draft of the instant project plan and the previous draft of the management and disposal plan as the lawsuit in this case is seeking confirmation of the past legal relations or legal relationship, barring any special circumstances.

Therefore, it is necessary to newly examine whether the interest in the confirmation of the lawsuit in this case seeking nullification of the previous resolution of each of the above general assembly due to the final project implementation modification plan and management and disposition plan approved and announced after the closing of argument in the court below, etc. Therefore, it is reasonable to remand the case to the court below for further review and determination.

4. Therefore, without examining the grounds of appeal, we reverse the lower judgment, and remand the case 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 Kim So-young (Presiding Justice)