[1] Where an assembly for a rebuilding resolution under Article 47 of the Act on the Ownership and Management of Aggregate Buildings and an inaugural general meeting for the establishment of a reconstruction association under Article 44 of the former Housing Construction Promotion Act are held in one appearance, whether the resolution becomes null and void as a matter of course until the inaugural general meeting resolution for the establishment of a reconstruction association where the rebuilding resolution is null and void (negative)

[2] The rights and obligations of a person who becomes a reconstruction association member by consenting to reconstruction

[1] Article 47 of the Act on the Ownership and Management of Aggregate Buildings, Article 44 of the former Housing Construction Promotion Act (amended by Act No. 6852 of Dec. 30, 2002) (refer to Article 16 (2) of the current Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents) / [2] Article 44-3 (7) of the former Housing Construction Promotion Act (amended by Act No. 6852 of Dec. 30, 2002) (refer to Article 16 (2) of the current Act on the Maintenance and Improvement

[1] [2] Supreme Court Decision 2008Da90347 Decided January 28, 2010 / [1] Supreme Court Decision 2005Da1952, 19569 decided Feb. 23, 2006 (Gong2006Sang, 482) / [2] Supreme Court Decision 99Da5149 decided Apr. 27, 199 (Gong199Sang, 104Ha, 1048 decided Jul. 9, 2004)

Busan District Court Decision 201Na11446 delivered on May 2, 201

Defendant 1 and 12 others (Attorney Go-won et al., Counsel for the defendant-appellee)

Seoul High Court Decision 2008Na62290 decided April 23, 2009

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

In a case where a sectional owner of an aggregate building holds an assembly for a rebuilding resolution under Article 47 of the Act on Ownership and Management of Condominium Buildings and an inaugural general meeting for the establishment of a reconstruction association under Article 44 of the former Housing Construction Promotion Act (amended by Act No. 6852, Dec. 30, 2002; hereinafter “the Housing Promotion Act”), even if one assembly is held in the outer form, the resolution adopted by the general meeting is legally divided into one reconstruction resolution adopted by the management body meeting organized by each building and one reconstruction association established by the sectional owner. Since a rebuilding resolution is null and void, it cannot be deemed null and void as a matter of course until the inaugural general meeting for the establishment of a reconstruction association, even if the rebuilding resolution is null and void. In addition, a person who has consented to reconstruction bears the duty to transfer the existing housing and land owned within the business area to the association for the purpose of a reconstruction project as prescribed by the regulations of the association, and has a new right to purchase a house in lots (see, e.g., Supreme Court Decision 2008Da978).

After compiling the adopted evidence, the lower court acknowledged the facts as indicated in its reasoning, and determined that the rebuilding resolution at the inaugural general meeting of the Plaintiff’s association held on April 8, 2003 (hereinafter “the rebuilding resolution of this case”) was null and void by a resolution not specifically determined matters concerning the apportionment of rebuilding expenses, and that the Plaintiff’s claim for the transfer registration and delivery of ownership premised on the validity of the rebuilding resolution of this case was groundless.

However, in light of the legal principles as seen earlier, it is difficult to accept such determination by the lower court for the following reasons.

According to the reasoning of the judgment below and the records, 39 members present at the general meeting of the Plaintiff association held on April 8, 2003, among the total number of 40 members, agreed to the agenda items such as a resolution for reconstruction, approval of the rules of association, the selection of representative, and the selection of a contractor, etc., and Article 37 (1) of the rules of the Plaintiff association provides that "for the smooth promotion of a reconstruction project, members of the Plaintiff association shall complete the registration of trust with respect to the land or housing within the project implementation district owned by the members of the association before the date of application for the approval of the project plan, and if the registration of trust is not performed within the registration period, the association may file a lawsuit for the execution of the registration of trust." The Plaintiff association is authorized by the head of Seongdong-gu Office on June 19, 2003

In light of these facts in light of the above legal principles, even if the rebuilding resolution of this case is null and void, the resolution of the inaugural general meeting for the establishment of a reconstruction association cannot be deemed null and void as a matter of course, and since 39 of the 40 members agreed to the partnership agreement and agreed to the election of the president of the association and the selection of the contractor, the plaintiff association was established. Thus, the defendants, a member of the plaintiff association, have the duty to implement the procedures for the registration of ownership transfer on the real estate owned by the plaintiff association and deliver the

Nevertheless, the court below rejected the plaintiff's claim on the ground that the rebuilding resolution of this case is null and void, on the ground that the defendants had no obligation to transfer ownership of the pertinent real estate and to deliver it. Thus, the court below erred in the misapprehension of legal principles as to the obligations under the rules of association of the reconstruction association, which affected the conclusion of the judgment. Therefore, the ground of appeal

Therefore, without examining the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded 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 Park Si-hwan (Presiding Justice)