Plaintiff 1 and one other (Attorney Choi Ho-chul et al., Counsel for the plaintiff-appellant)

The head of Mapo-gu

District Housing Redevelopment and Improvement Project Association (Attorney Jeon Soo-soo, Counsel for the plaintiff-appellant)

April 26, 2012

Seoul Administrative Court Decision 2010Guhap32105 decided November 19, 2010

1. The judgment of the first instance court is modified as follows. The change of the establishment of the association made by the Defendant to the Defendant’s Intervenor on May 11, 2010 shall be revoked.

2. Of the total costs of the litigation, the part resulting from the participation by the Defendant is borne by the Intervenor, and the remainder by the Defendant, respectively.

1. Purport of claim

On May 11, 2010, the change of the establishment made by the Defendant against the Intervenor joining the Defendant shall be revoked.

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiffs' claims corresponding to the revoked part shall be dismissed.

3. Purport of incidental appeal;

The part against the plaintiffs in the judgment of the court of first instance shall be revoked, and the part which the defendant approved the change of the part excluding "a rough amount of expenses incurred in removal and new construction of the building" shall be revoked as to the defendant's Intervenor on May 11, 2010.

1. The part citing the judgment of the court of first instance

The reasoning of this Court is that the relevant part of the reasoning of the judgment of the court of first instance is the same as that of the relevant part of the reasoning of the judgment of the court of first instance (Article 8(2) of the Administrative Litigation Act, the main text of Article 420 of the Civil Procedure Act, since the relevant part of the reasoning of the judgment of the court of first instance (Article 8(2) of the Administrative Litigation Act, and Article 420 of the Civil Procedure Act are cited.

2. Judgment on the defendant's main defense

A. The defendant's assertion

On July 29, 2011, an intervenor held a general meeting of shareholders and passed a resolution on the modification of the articles of association and the design outline of new structures, and the modification of the estimated amount of expenses for removal of new structures and new construction. Based on this, the intervenor obtained the authorization for modification of the establishment of an association on November 10, 201. Therefore, aside from the dispute over the validity of the authorization for modification of the establishment of an association on November 10, 201, the intervenor did not have any legal interest to dispute the validity of the authorization for modification of the previous legal relations, and thus, the lawsuit of this case was unlawful.

B. Determination

1) In a case where a plan establishment authorization was issued and a new plan is revoked and a new plan is issued, not only the initial plan establishment authorization was issued, but also the initial plan establishment authorization was revoked, or a new plan establishment authorization was issued. However, in a case where a new plan establishment authorization was issued based on the initial plan establishment authorization, the initial plan establishment authorization was issued. However, even though a new plan establishment authorization was issued or a modified plan was modified, the changed plan was merely an insignificant change of minor matters as stipulated in the proviso of Article 16(1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Article 27 of the Enforcement Decree of the same Act, and it cannot be deemed that the initial plan establishment authorization was modified.

2) According to the evidence evidence Nos. 4 and 5, an intervenor held a general meeting on July 29, 201 and passed a resolution on July 29, 201 on the modification of the design outline of a new building and the estimated amount of expenses for removal and construction of a new building, 365 among all 393 members and 270 members (the consent rate of 68.70%). Based on the above, an intervenor filed an application for the change of the name and number of union members, the design outline of a new building, and the estimated amount of expenses for removal and construction of a new building on November 9, 201, and the defendant filed an application for the change of the establishment with respect to the above application under Article 16(1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents and the Enforcement Decree of the same Act and Article 27(a) of the Enforcement Decree of the same Act.

The total floor area of a building site included in the main sentence and other 30,653.40 square meters and 75,371.95 square meters and 10 through 19 square meters of underground second-rises of apartment buildings, 200,000,000,19,640,000 48,020,95,000 142,220,635,000,635,000

The total floor area of a building site included in the main sentence and other 30,711.40 square meters and 82,608.71 square meters, 208.71 square meters of underground floors 10 through 19 square meters of underground floors, and the total cost of construction of new units and supplementary facilities and other business expenses (won) 4,576,000,009,206,206,846, 846, 100, 74,826, 968, 810, 178,609,814,910

3) According to the above facts of recognition, the approval of change as of November 9, 201 is merely a modification of part of the establishment authorization based on the instant authorization of change, and it is merely a meaning of accepting the report of the Intervenor’s application for change on the ground that the modified contents correspond to minor matters as stipulated in the proviso of Article 16(1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, and Article 27 of the Enforcement Decree of the same Act. Thus, the instant approval of change is not absorption into the approval of change as of November 9, 201. The Plaintiff’s assertion in this part is without merit.

3. Determination as to the plaintiff's assertion that the modification requirement of this case was not satisfied (the plaintiff's assertion as stated in paragraph (1)(2))

A. Determination as to the assertion that the requirement for consent was not satisfied

1) Although the Plaintiffs asserted that there was a defect in notifying the Intervenor that the Intervenor would be used to apply for the authorization of modification in the course of receiving the written consent of the instant case, it is difficult to acknowledge the said fact solely by the descriptions of the evidence Nos. 6 and 7, and there is no

2) Since 38 persons among the owners of land, etc. who submitted the written consent of this case expressed their intention to withdraw consent prior to the application for the authorization of this case, the Plaintiffs asserts that the consent of 38 persons is null and void. Even according to the Plaintiffs’ assertion, there was no fact that the withdrawal of consent prior to the authorization of this case (Evidence A7) was submitted to the Defendant or the Intervenor, and no other evidence exists to deem that the Defendant was aware that 38 persons had withdrawn consent at the time of the authorization of this case, and

B. Determination on the assertion that no resolution was passed at a general meeting

1) Article 24(3)12 and (5) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Article 34 subparag. 3 and 4 of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Article 24(3)12 and Article 24(3)3 and 4 of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents stipulate that the alteration of the “a summary of the construction to be

The Intervenor obtained the instant authorization of establishment from the Defendant on September 29, 2008, with the consent of 336 of 429 persons from the owners of land, etc., with the area of 30,946.7 square meters, removal expenses of 984,00,000 won, new construction expenses of 75,760,000,000 won, and other project expenses of 7,674,000,000 won, the aggregate of 84,418,00,000 won, from the Defendant on May 11, 2010, 319 of the owners of land, etc., 30,711.40 square meters, removal expenses of 3,00,000,000 won, new construction expenses of 91,640,60,000,000 won, and the total of 84,000,000 won, 2005,209.

According to the above facts, the contents of the application for the modification of the instant case contain “a summary of the building to be constructed” and “a rough amount of expenses incurred in removing and constructing the building.” Thus, the intervenor must make a general meeting resolution on the modification of the outline of the design of the building (Article 34 subparag. 3 and No. 4 of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Article 34 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents) and on the modification of the rough amount of expenses incurred in removing and constructing the building (Article 4 of the Act) before filing the application for the modification of the instant case, but did not go through such procedures. The modification of the instant case which the intervenor approved

2) Even if the intervenor must again undergo a resolution of the general meeting for the modification of the instant case, the quorum is deemed to be a general quorum (the attendance of the majority of the union members and the affirmative vote of the majority of the union members), and the intervenor asserts that the “case of the management and disposition plan (the draft resolution) resolution,” which was presented by the general meeting of the management and disposition plan on November 24, 2009, was 244 members who agreed to do and reached 56.8% of the total union members, and thus, it should be deemed

In full view of the purport of the argument in Gap evidence No. 9, the plaintiffs filed a lawsuit against the Seoul Administrative Court on November 24, 2009 against the intervenor seeking confirmation that the resolution of the general meeting on the agenda items of the management and disposal plan No. 3 at the general meeting is null and void. On the ground that at least 2/3 of the union members or 56.8% of the agreed ratio falls short of the above, the plaintiffs won all the proceedings (Seoul Administrative Court Decision 2009Guhap54444, Jun. 17, 2010). The intervenor appealed, but the intervenor dismissed the appeal (Seoul High Court Decision 2010Nu2193, Dec. 16, 2010). The facts that the judgment became final and conclusive because the intervenor did not file an appeal at that time.

However, Articles 20(1)8, 12, 15, and 20(3) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents provide that the association’s articles of association shall obtain the consent of at least 2/3 of the association members in order to modify matters concerning “the cost bearing of the association and the accounts of the association for the improvement project, such as construction cost,” “the timing and procedure for bearing the expenses incurred in the improvement project, such as construction cost,” “the selection of the executor and designer,” and “matters to be included in the contract”. Article 24(3)9-2, 10, and 24(6) of the same Act provides that the consent of at least 10/100 of the association members shall be obtained when the project implementation plan or the management and disposal plan is formulated or amended, and the consent of at least 2/3 of the association members shall be obtained if the association members’ consent is necessary to make a change in the price of the construction project.

Therefore, even if the resolution of the above general meeting is deemed to be the resolution of the general meeting for the modification of the above general meeting, as alleged by the Intervenor, the consent ratio should be more than 2/3 in order to modify the “a summary of the design of the building to be constructed” and the “a summary of the cost required for the removal and new construction of the building,” which contain a substantial increase of the estimated cost to 68.47%, as seen above, while the consent ratio for the management and disposal plan (draft) at the above general meeting is limited to 56.8%, it cannot be deemed that the 3 agenda decided by the above general meeting is a legitimate general meeting for the application for the modification

3) We examine the scope of revocation of the instant modification authorization.

The content of the re-written consent of this case is that a building is constructed with the increased cost of removal of a building and the cost of new construction, wherein the owners of a plot of land, etc. located within the area of the project area subject to consent as its members, so it is difficult to view the content of consent as effective by partially separating the content of the building, and in particular, the outline of the building and the estimated cost of construction can be deemed an essential part in the reconstruction process. It is more so in view of the content of the application for authorization of this case also is that the building is constructed with the altered cost of removal of a building and the cost of new construction for the owners of a plot of land, etc. located within the area subject to the modified project area. As such, insofar as there is an error in the alteration of the outline of the building and the alteration

4) As to this, the Defendant asserts that a rough change in the cost of demolition and new construction of a building is not subject to authorization for establishment of the association. Article 16 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, and Article 26(2)2 of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents provides that “the total cost of demolition and new construction of a building shall be included in the written consent at the time of applying for authorization for establishment of the association.” The instant authorization for establishment includes an increase of project cost from 142,20,635,00 won at the beginning to 84,418,000 won to 142,635,000 won to 57,802,635,000 won (al. 68.47% increase), even if considering changes in the situation of construction competition such as price fluctuations, it constitutes a new establishment disposition that substantially alters the contents of the association authorization of this case

4. Conclusion

The modification of the instant case must be revoked in its entirety. On the contrary, the first instance judgment that revoked only the general amount of expenses incurred in the removal and construction of buildings among the modification of the instant case’s modification is unreasonable. Therefore, it is so decided as per Disposition by the assent of the first instance court to accept the Plaintiffs’ incidental appeal and to revoke the entire modification of the instant case’s modification.

Judges Cho Jae-ho (Presiding Judge)