(영문) 창원지방법원 2013.9.3.선고 2012구합1905 판결

1. Of the instant lawsuits, the part of the claim for nullification of the composition and approval of the committee for the redevelopment of housing in an asset district shall be dismissed.

2. All of the plaintiffs' remaining claims are dismissed.

3. The costs of lawsuit are assessed against the plaintiffs.

Purport of claim

1. The Defendant’s disposition to authorize the establishment of a housing redevelopment project in an asset district on March 19, 2012 is revoked.

2. Formation and succession of the committee for promotion of housing redevelopment projects in an asset district on December 19, 2008 by the defendant;

shall confirm that a disposition is null and void.

Reasons

1. Details of the disposition;

The following facts may be recognized by adding up the respective descriptions of Gap evidence 1 to 4, Eul evidence 1 to 5, and the whole purport of oral proceedings:

A. On July 10, 2008, the Seoul Special Metropolitan City Mayor/Do Governor designated a rearrangement zone and publicly notified the 67,582m of the AF total AF total 67,582m as a housing redevelopment zone under the Ministry of Land, Infrastructure and Transport notification No. 2008-309.

B. 1) On March 27, 2004, before the designation and public notice of the above rearrangement zone, the committee for the promotion of housing redevelopment project for the housing zone was established on the premise that 370 owners of land within the above zone (the owners of land or buildings within the rearrangement zone or persons with superficies; hereinafter the same shall apply) obtained consent to the composition of the committee, among 701 owners of land within the above zone (the committee was incorporated into Changwon, July 1, 2010), the committee for the promotion of housing redevelopment project for the housing zone was approved on the 10th day before the designation and public notice of the above rearrangement zone, and the decision was established on the 20th day of the above 10th day after the 20th day of the 1st day of the 1st day of the 20th day of the 1st day of the 1st day of the 20th day of the 20th day of the 20th day of the 20th day of the approval of the promotion committee.

3) On the other hand, on the other hand, on December 19, 2008, the Masan City newly organized promotion committee (hereinafter referred to as "the second promotion committee") on December 19, 2008 (hereinafter referred to as the "the chairman AI, the project implementation district, the 67,582m, the 229 consent (the consent rate 53.62%), among the 427 owners of land, etc., hereinafter referred to as "the second approval company of this case") was established. The promotion committee held an inaugural general meeting on December 3, 2011, held 44 members of the land, etc., 440 members of the land, etc., 75% (33/40 members of the land, etc.) of the redevelopment project, applied for the establishment approval of the housing redevelopment project of this case on February 27, 2012, and disposed of the housing redevelopment project of this case (hereinafter referred to as "the housing redevelopment project of this case").

2. The plaintiffs' assertion

A. The second approval disposition of the instant case is a serious and apparent invalidation for the following reasons.

1) Since multiple housing redevelopment project promotion committees cannot be established within one housing redevelopment improvement zone (hereinafter referred to as "promotion committee"), the second promotion committee is not allowed before the first approval disposition of this case is revoked. Furthermore, Articles 13(2), 14(1)5 and (3), and 85 subparag. 3 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444 of Feb. 6, 2009; hereinafter referred to as "former Urban Improvement Act"), since the second promotion committee's consent is not established or amended by Presidential Decree No. 2AR79 of Aug. 11, 2009 (hereinafter referred to as "former Enforcement Decree of Urban Improvement Act"), the owners of land, etc. did not arbitrarily submit a written consent of the promotion committee's promotion committee's committee's committee's 20th organization or approval of the promotion committee's 120th committee's 20th committee's 20th committee's 12th committee's 20th committee's 2.

4) Although the second promotion committee holds a residents' general meeting to approve the composition, there is a procedural defect in the composition phase, since it did not go through these procedures, even though it did not go through these procedures.

B. The instant disposition that approved the establishment of the instant association must be revoked on the following grounds.

1) A promotion committee shall hold an inaugural general meeting after obtaining consent to establish an association from at least 3/4 of the owners of a plot of land, etc. before applying for authorization to establish an association, and the second promotion committee cannot obtain consent after the date of the inaugural general meeting. Since the second promotion committee received consent after the inaugural general meeting, the part of the consent submitted after the inaugural general meeting is unlawful. 2) In light of the legislative purpose of Article 28(1)(c) of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the method of calculating the number of consent from the owners of a plot of land, etc. necessary for implementing a housing redevelopment project shall be determined as at the time of designation of an improvement zone. Therefore, among the 333 written consents at the time of applying for authorization to establish an association, 13 persons who are not the owners of a plot of land, etc. at the time of designation of an improvement zone and 14 written consent including invalid written consents shall be excluded from the above 3333 written consents. Accordingly calculated.

3) Even as at the time of approving the number of consenters, 9 of the 333 written consents at the time of applying for approving the establishment of the instant association is either two or more written consents of residents other than the rearrangement zone as follows. Thus, the number of consenters would be 324 if the said 33 written consents were excluded, and the ratio of consent to 440 landowners at the time of applying for approving the establishment of an association is 73.64% ( = 324/40) and does not exceed 75%, which is the requirement for approving the establishment of an association. (A) EAJ, LAK is a co-owner of the land in the Changwon-si, Masan-si, Mampo-si, and the land in the same AM, and it was calculated as 2 consenters, respectively, by submitting a written consent.

B) Although it is necessary to calculate the number of consenters as the owners of the same AO land and the same AP land and buildings, the same AP land and buildings, and the same AP Q and R, on the other hand, as the owners of the AO land, on the one hand, as the representative members between the AP and the AS bank, a person holding superficies over the AR land, respectively, and were calculated as two consenters.

C) Although this AT, StateU, least AV, and KimAW should be calculated as one consenters, two written consents were respectively submitted to each other, and were calculated as two consenters.

D) The AX is the owner of the same AY land and buildings on the same AY and its ground, and is the representative members of the co-owners of the same AZ land, and was calculated by two consenters, respectively.

E) This BA as the representative member of the co-owners of the same land BB, was calculated as two consenters by submitting each written consent as the owner of the above ground building.

F) The key BC submitted a written consent to the owners of land, etc., other than the rearrangement zone, and was calculated as one consenters.

4) Also, as alleged earlier, the defect of the second approval disposition of this case invalid is succeeded to the establishment approval disposition of this case.

3. Determination as to the claim to nullify the second approved disposition of this case

A. The defendant's main defense

As long as the plaintiffs seek invalidation of the instant disposition, seeking confirmation that the second promotion committee’s approval disposition is null and void is nothing more than a claim for confirmation of past legal relations, and there is no benefit of confirmation since it cannot be deemed as a valid and appropriate means of dispute resolution.

(b) judgment;

In light of the contents, form, system, etc. of relevant Acts and subordinate statutes, such as Articles 13(1) and (2), 14(1), 15(4), and (5) of the former Act, the organization approval disposition of a promotion committee is an interim disposition to achieve the ultimate objective of the establishment of an association by supplementing the organization of the promotion committee, which is the principal agent for the establishment of an association, but its legal requirements or effect is an independent disposition different from that of the approval disposition of the establishment of the promotion committee. Thus, the cancellation of the approval or the confirmation of invalidity of the judgment on the establishment approval of the promotion committee cannot prevent the progress of the rearrangement project by the association already obtained the approval of the establishment. Therefore, where the establishment approval disposition is made, the rearrangement project shall be avoided by directly disputing the establishment approval disposition of the promotion committee on the ground that there is an error of law in the establishment approval disposition of the promotion committee and the application for the establishment approval is null and void, and otherwise, there is no legal interest in seeking cancellation or invalidation of the approval of the promotion committee composition (see, e.g.

Therefore, this part of the lawsuit by the plaintiffs is unlawful.

4. Determination on the cancellation claim of the instant disposition

A. First, we examine the allegation that the consent was received after the inaugural general meeting and was unlawful.

Article 14(3) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 11293, Feb. 1, 2012; hereinafter “Act”) and Article 22-2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 24007, Jul. 31, 2012; hereinafter “Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”) provide that a committee shall hold an inaugural general meeting to establish an association after obtaining consent from at least 3/4 of the owners of land, etc. and landowners of at least 1/2 of the size of land before applying for authorization to establish an association.

On December 3, 201, the date of the inaugural general meeting of the instant association, as alleged by the Plaintiffs, there is no evidence to acknowledge that the consent was submitted after December 3, 201. The purport of the above provision is to prevent the execution of the inaugural general meeting by having the owners of land, etc. hold at least after obtaining consent to the extent that it can be possible to establish the association, and the consent of the establishment of the association can not be affected by whether the consent was expressed before the inaugural general meeting, which is not support for a specific inaugural general meeting, but for the establishment of the association itself. Therefore, this part of the Plaintiff’s assertion is without merit.

B. Next, we examine the argument that the method of calculating the number of consenters should be determined at the time of designating the rearrangement zone.

According to Article 19(1) of the Act on the Improvement of Urban Areas and Dwelling Conditions for Residents, owners of lands, etc. within a housing redevelopment zone shall naturally join the housing redevelopment zone, and therefore, the association members shall be determined at the time of authorization for establishment under the above provisions and the articles of association, and thereafter, in cases where reasons such as transfer of the status of union members occur, it shall be deemed that the change of union members may be possible within the scope pursuant to the articles of association (see Supreme Court Decision 97Nu17094 delivered on March 27, 1998). In addition, since the proviso of Article 28(1)(c) of the Enforcement Decree of the Act on the Improvement of Urban Areas and Dwelling Conditions for Residents as the ground for the plaintiff's assertion applies only to urban environment rearrangement projects, the project of this case, which is a housing redevelopment

C. Next, it is argued that the consent rate is less than 75% because nine of the consent forms is null and void. 1) As seen earlier, "owner of land, etc." is the owner or superficies holder of the land or structure located in the rearrangement zone (Article 2 subparagraph 9 (a) of the Urban Improvement Act), Article 17 of the Urban Improvement Act, and Article 28 (1) 1 of the Enforcement Decree of the same Act, the consent of the owner of the land, etc. in the housing redevelopment project is calculated as the owner of the land, etc., one representative of the number if the land or structure in one piece of land is jointly owned by several persons, and one representative of the owner of the land and superficies shall be calculated as the owner of the land, etc., if the superficies is established on the land. If one person owns a lot of land or a large number of buildings, the owner of the land and the person representing superficies of the land shall be calculated as one owner of the land, regardless of

In light of the content and structure of the Act and subordinate statutes, one owner of land or building, and one owner of land or building shall be calculated as the owner of each real estate if the same co-owner jointly owns different lots of land, land or building, regardless of the number of real estate (Supreme Court Decision 2009Du15852 Decided January 14, 2010). According to the AOJ and the NAJ's letter of consent, the two owners of land are not entitled to co-owners of the same part of the land, and the two owners of the land are entitled to co-owners of the same land, and the two owners of the land are not entitled to co-owners of the same land as the owner of each co-owner's share of the same land under the same name as the owner of each co-owner's share of the land under the premise that each co-owner is the owner of each co-owner's own land under the same name as the owner of each co-owner's share of the land. The above co-owner's assertion that each co-owner of the land is the owner of each co-owner of the above land is unlawful.

4) According to the purport of this Act, the written consent of this Act, the StateAU, the leastAV, and the KimAW, as a whole, and the purport of the entire arguments and arguments, the combination of this case’s written consent in the name of this Act, StateAU, the leastAV, and the KimAW shall be deemed null and void, and the combination of this case’s written consent shall be deemed to have calculated the rate of consent by calculating this Act’sT, StateAU, the leastAV, and the KimAW as one person’s consent at the time of the application for the establishment authorization. Accordingly, the plaintiffs’ assertion on this part is without merit

5) According to the written consent of the Si AX, according to the health stand, Gap evidence 6-17 to 21, the plaintiffs' assertion on the premise that the Si AX is the same person, is the owner of the land AY in the Siasi-si, Changwon-si and the building on its ground under the name of the SiaX, and two written consent were submitted as a representative member of co-owners of the same AZ, but the Si AX, each of the above land owners, is recognized as the Dong name (the same person's name). Therefore, the plaintiffs' assertion on the premise that the Si AX is the same person is not reasonable.

6) With respect to this BA’s written consent, as alleged by the Plaintiffs, even if this BA is the representative partner of the co-owners of the same BB land, and as the owner of the above ground building, two consenters were calculated by submitting each written consent, in light of the legal principles that one of the owners of the land or the building and the co-owners is to be calculated as the owner of the land, as seen earlier, in light of the legal principles that one of the owners of the above land and the building is to be calculated as the owner of each real estate, since the owners of the above land and the building are different, one of the owners of each real estate shall be calculated as the owner of the

7) According to the statements in the evidence Nos. 6-37, 38, and 7 on the consent letter of the KBC, the KBC is the owner of the same 52-AR land, and the consent letter of the instant association was submitted to the KBC. Since the said land is recognized as land within the improvement zone for the asset redevelopment project in the asset redevelopment project zone, this part of the plaintiffs' assertion is also without merit.

8) If one of the consenters at the time of the instant disposition excludes one person who was invalidated as above, the total number of consenters shall be 332, and since the total number of the owners of lands, etc. is 440, the consent rate shall be 4% (332 / 440, and two decimal places) on 75.4% on 75.4% on 75.4% on 75.75% on 75% on 75.7% on 75% on 75% on 76(1) on 75.5% on 75% on 75.5% on 7

D. We examine the assertion that the second approval disposition of this case is null and void and that the defect is succeeded to the disposition of this case.

1) As seen earlier, it is reasonable to view that the first promotion committee does not exist from the beginning, regardless of whether the Defendant issued a disposition to revoke the formation approval of the first promotion committee or whether the first promotion committee is dissolved. Furthermore, according to Articles 13(2) and 85 subparag. 3 of the former Urban Improvement Act, a person who constitutes and operates the promotion committee without approval of the head of Si/Gun shall be punished by a fine not exceeding two years or not exceeding 20 million won. However, in order to obtain approval for the formation of the promotion committee from the owners of land, etc. in the pre-approval stage, the promotion committee may obtain written consent from the owners of land, etc. in order to obtain approval for the formation of the promotion committee from the owners of land, etc. so it cannot be said that the second promotion committee obtained written consent necessary for the formation of the promotion committee from the owners of land, etc. before its approval.

3) In addition, as alleged by the plaintiffs, there is no evidence to prove that the second promotion committee submitted a written consent by the second promotion committee as a document of approval for the composition of the promotion committee, or that the second promotion committee was not in compliance with the procedure necessary for the composition of the committee, or that the second promotion committee was not in compliance with the procedure required for the composition. 4) Therefore, it is difficult to deem that there is any defect in the second approval disposition of this case to be null and void, and therefore, the plaintiffs' assertion of succession to the defects premised on the above approval disposition is without merit.

5. Conclusion

Therefore, the part of the lawsuit in this case seeking confirmation of invalidity of the second approval disposition is unlawful and dismissed, and the remaining claims of the plaintiffs are dismissed as it is without merit. It is so decided as per Disposition.