[1] In a case where a lessee is included in the “list of lessees who do not wish to be sold” in the approval for conversion of rental housing into parcelling-out under Article 21 of the former Rental Housing Act, and the rental housing was classified into the number of households of general supply and approved for conversion into parcelling-out, whether the lessee has the right of preferential conversion (affirmative

[2] Whether only a part of an administrative disposition may be revoked in a case where a single administrative disposition can be differentiated or part of the disposition subject to disposition can be specified (affirmative)

[1] Article 21 of the former Rental Housing Act (Amended by Act No. 11021, Aug. 4, 201); Article 13(1) of the Enforcement Rule of the Rental Housing Act / [2] Article 1 of the Administrative Litigation Act / [1] Articles 1 and 19 of the Administrative Litigation Act

[2] Supreme Court en banc Decision 95Nu8850 delivered on November 16, 1995 (Gong1995Ha, 3812)

Plaintiff 1 and 60 others (Attorneys Kim Byung-jin et al., Counsel for the plaintiff-appellant)

Plaintiff 5 13 (Attorney Kim Byung-jin et al., Counsel for the plaintiff-appellant)

Mineyang Market (Law Firm Namdo, Attorneys Go Jae-chul et al., Counsel for the defendant-appellant)

e. One-time and five others (Patent Law Firm, Patent Law Firm, Attorneys Yang Sung-il et al., Counsel for the plaintiff-appellant)

LLC et al. and 44 others

Defendant Intervenor 52

Gwangju High Court Decision 2011Nu2025 decided August 9, 2012

Of the lower judgment, the part of the lower judgment against Plaintiffs 5, 6, 9, 15, 17, 20, 47, 52, 58, 61, 62, 66, 73, and 75 is reversed, and that part of the case is remanded to the Gwangju High Court. All of the remaining appeals by the Plaintiffs are dismissed. The remainder of the costs of appeal by the Plaintiffs, including the part resulting from the participation in the subsidy, are assessed against the same Plaintiffs.

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

1. As to the Defendant’s ground of appeal

A. According to Article 21 of the former Rental Housing Act (amended by Act No. 11021, Aug. 4, 201; hereinafter the same shall apply), where a rental business operator purchases rental housing constructed with funding from the National Housing Fund under Article 60 of the Housing Act or built on a housing site developed by a public project after the expiration of the mandatory rental period, among the housing constructed by him/her after obtaining approval for a business plan pursuant to Article 16 of the Housing Act, a rental business operator who intends to convert the said constructed rental housing into parcelling-out shall first convert it into parcelling-out with the lessee falling under any subparagraph of paragraph (1) of the same Article (Article 60) (Article 1). A rental business operator who intends to convert the said constructed rental housing into parcelling-out with the documents prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs (Article 3) shall file an application with the head of a Si/Gun/Gu (hereinafter referred to as the “Mayor, etc.”) within 30 days after receipt of such application, but may sell the relevant rental housing to a third party (Article 7).

In addition, Article 13(1) of the Enforcement Rule of the Rental Housing Act (hereinafter “Enforcement Rule”) provides that a person who intends to apply for approval for conversion for sale in lots pursuant to delegation of Article 21(3) of the former Rental Housing Act (hereinafter “Enforcement Rule”) shall submit to the Mayor, etc. a written application (attached Form 13), along with the list of lessees who do not wish to receive the sale in lots, and documents proving that he/she does not wish to purchase in lots, such as a certificate of renunciation of sale in lots, shall first state the subject of supply in the form of the application by dividing the number of households supplied

In addition to the forms and contents of the regulations on approval for conversion of sale in lots and preferential sale of rental housing, the Rental Housing Act does not stipulate that the lessee may sell rental housing to a third party when the mayor, etc. approves the conversion of sale in lots of rental housing, but does not stipulate that the form of an application for approval for conversion in lots should include only the number of rental housing to be sold and the general number of rental housing to be sold to the third party, and does not require the lessee to enter the preferential supply of rental housing due to the conversion in lots. ② The documents required to be attached to the application for approval for conversion in lots under Article 13(1) of the Enforcement Rule are insufficient to examine the existence of the right to conversion in lots of the household applying for conversion in lots. ③ Furthermore, according to Article 21(7) of the Rental Housing Act, the lessee holding the right to conversion in lots has the right to choose whether to respond to the sale in lots within six months after the approval for conversion in lots, and it can be seen that the above application for conversion in lots is not subject to prior approval for conversion in lots and its overall application for conversion in lots.

Therefore, even if a lessee is included in the list of lessees who do not wish to purchase the relevant rental house, which is attached to the application for approval for conversion for sale in lots, and the relevant rental house was classified into the number of households for general supply and approved for conversion for sale in lots, if the lessee falls under any of the subparagraphs of Article 21(1) of the Rental Housing Act and falls under any of the subparagraphs of Article 21(1) of the Rental Housing Act, and if he/she holds the right of preferential conversion for sale in lots for at least six months after approval for conversion in lots, it is reasonable to view

B. (1) Based on the adopted evidence, the court below acknowledged the following facts: ① Plaintiffs 5, 6, 9, 15, 17, 20, 47, 52, 58, 61, 62, 66, 73, and 75 (hereinafter “Plaintiff 5, etc.”) were lessees of the apartment of this case; ② The rental business operator of the apartment of this case submitted a list of abandoned households while applying for the approval for conversion to purchase in this case; ② the aforementioned Plaintiffs were included in the list; ③ the number of households of the application for approval for conversion to purchase in this case was included in the general supply number of the application for approval for conversion to purchase in this case; ③ the application for approval for conversion to sale in this case was unilaterally prepared and published by rental business operators related to the above Plaintiffs; and ③ the application for approval for conversion to sale in this case was not accompanied by documents such as confirmation of the intent to waive the sale in this case.

Furthermore, the lower court determined that the part on the pertinent household of Plaintiff 5 and other 14 out of the disposition of this case was unlawful on the ground that the Defendant’s disposition of this case, which approved conversion for sale in lots without demanding supplementation of the documents, violated Plaintiff 5 and other 14 priority right by taking the disposition of this case, on the premise that the lessee, who was classified as the waiver household at the time of application for approval for conversion for sale in lots, did not have the right of preferential conversion for sale in lots.

(2) However, according to the legal principles as seen earlier, 14 persons, including Plaintiff 5, were included in the list of households of renunciation of sale, and their leased rental housing was included in the general supply household of the application for approval for sale for sale for sale for sale in lots, and their preferential right of sale is not deprived or restricted. Thus, the part of the above plaintiffs' dispositions among the disposition of this case cannot be deemed unlawful solely on the ground that the defendant, while granting approval for sale in lots in this case, did not require the applicant to supplement documents, such as the certificate of refusal of sale in lots, and approved the applicant without requiring the applicant to supplement the documents. Nevertheless, the court below erred by misapprehending the legal principles on the contents of approval for sale in lots

2. As to the grounds of appeal by the plaintiffs other than 14 others including plaintiffs 5

A. As to the assertion of misapprehension of legal principles as to partial revocation of administrative disposition

Even if external administrative disposition is a single administrative disposition, if only a part of the disposition can be differentiated or specified, it may be revoked, and a part of the disposition shall be revoked (see Supreme Court en banc Decision 95Nu850 delivered on November 16, 195, etc.).

The lower court determined that only a part of the instant disposition can be revoked, on the ground that even if a rental business operator applied for approval of conversion for sale in lots for rental housing for several households and obtained such approval as a single administrative disposition, it constitutes a disposition for an approved individual household and can be divided by each household.

The judgment of the court below is just in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to partial revocation of administrative disposition.

B. As to the misapprehension of legal principles as to the qualification of rental business operator

The court below held that even if a rental business operator violated the obligations prescribed by the Rental Housing Act, including the obligation to subscribe to a guarantee for rental deposit, it does not necessarily lose the rental business operator’s qualification as a matter of course, as well as criminal punishment or penalty under the Rental Housing Act. Thus, even if the Defendant’s Intervenor, a rental business operator who applied for the application for the approval of conversion for sale in lots, violated the obligations as a rental business operator as alleged by the Plaintiffs, the

In light of the relevant legal principles and records, the lower court’s determination is justifiable, and it did not err by misapprehending the legal principles on the qualifications of rental business operators who can file an application for approval for conversion for sale in lots

C. As to the misapprehension of legal principles on the requirements for application for conversion for sale in lots

The court below determined that the disposition of this case cannot be deemed unlawful merely on the ground that a rental business operator applied for the approval of conversion of rental housing into parcelling-out as a requirement for the agreement with the council of lessees' representatives or lessees on the conditions of conversion of rental housing into parcelling-out, so even if there is a defect in the composition of the council of lessees' representatives or the consultation with the defendant joining the defendant who applied for the approval of conversion into parcelling-out as alleged by the plaintiffs,

In light of the relevant legal principles and records, the above determination by the court below is just, and there were no errors by misapprehending the legal principles on the requirements for application for approval for conversion for sale

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Defendant and the Intervenor, the part of the lower judgment against 14 persons, including Plaintiff 5, is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. All of the remaining Plaintiffs’ appeals are dismissed. The costs of appeal by the remaining Plaintiffs are assessed against the losing party, including the part arising from the intervention in the supplementary action. It is so decided as per Disposition by the assent

Justices Kim Shin (Presiding Justice)