As shown in the attached Form (Law Firm Han & Lee LLC et al., Counsel for the defendant-appellant)

As shown in the attached Form (Law Firm LLC et al., Counsel for the defendant-appellant)

The Housing Redevelopment and Improvement Project Association (Law Firm Choun et al., Counsel for the plaintiff-appellant)

July 8, 2020

Incheon District Court Decision 2018Guhap5924 Decided January 10, 2020

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant, including the part arising from the supplementary participation.

1. Purport of claim

A resolution on the “case of approval for modification of the articles of association (hereinafter referred to as the “resolution for modification of the articles of association”) made at the general meeting of the association members on January 27, 2018 (hereinafter referred to as the “resolution for amendment of the articles of association”) is invalid. The Defendant’s project implementation plan for the development of modern apartment housing (hereinafter referred to as the “project implementation plan of this case”) approved by the head of Gyeyang-gu Incheon Metropolitan City on September 19, 2018

2. Purport of appeal

Among the judgment of the first instance, the part of the plaintiffs' claim for cancellation of the project implementation plan of this case is revoked, and all plaintiffs' lawsuits corresponding to the above cancellation are dismissed.

1. Scope of adjudication of this court;

The first instance court accepted all the plaintiffs' claims and confirmed that the resolution to amend the articles of incorporation of this case is null and void, and ② The defendant filed an appeal against the whole judgment of the first instance, but withdrawn an appeal against the above part (1) among the judgment of the first instance on May 11, 2020, the scope of the judgment of this court is limited to the above part (2) of the judgment of the first instance, namely, to the part concerning the claim to cancel the project execution plan

2. Basic facts

The reasoning for this Court’s explanation is as follows: (a) the part of “1. Basic Facts” stated in the 7-10 pages of the first instance judgment is identical to that stated in the 7-10 pages of the first instance judgment; and (b) thus, this part is cited in accordance with Article 8(2) of the Administrative Litigation Act and the text of Article 420 of the Civil Procedure Act.

○ 8. The following shall be added to the right side of “repaired.”

【On the other hand, the instant business pursuant to the instant project implementation plan was no longer suspended due to the real estate market erosion around 2011.】

○ 8 12 parallels “Article 34(4)” add “Article 45(6)” to the right side.

○ The following shall be added under the last sentence of the 9 table:

(6) Members shall conclude a contract for parcelling-out within the period specified by the cooperative after the approval for the management and disposal plan, and the provisions of paragraphs (4) and (5) shall apply mutatis mutandis to the cases of failing to conclude a contract for parcelling-out: Provided, That notwithstanding paragraph (4), the date of liquidation of members who have not concluded a contract for parcelling-out shall

The 10th 4th 10 project implementation plan (hereinafter referred to as the "project implementation plan of this case") shall be "(referring to the project implementation plan of this case)".

Between 10 and 11, the following shall be added:

(i) On May 18, 2019, the Defendant passed a resolution on the management and disposal plan concerning the instant project based on the instant project implementation plan, and the head of Gyeyang-gu approved the said management and disposal plan on October 29, 2019.

(j) On December 24, 2018, the plaintiffs filed a lawsuit in this case with the first instance court seeking confirmation of invalidity of the resolution to amend the articles of incorporation of this case and revocation of the project plan of this case. On January 10, 2020, the first instance court affirmed the plaintiffs' claim for confirmation of invalidity of the amendment of the articles of incorporation of this case on the ground that "the resolution to invalidate the amendment of the articles of incorporation of this case is restored to its members against their will through Article 9 of the amended articles of incorporation," and accordingly, the part of the judgment of the first instance court of this case which accepted the claim of nullification of the amendment of the articles of incorporation of this case on the ground that "the resolution to invalidate the amendment of the articles of incorporation of this case was changed to the status of a cash clearing as of May 24, 2011, which is the last day of the period for application for parcelling-out under the project plan of this case, was not only inconsistent with the legal principles as to the recovery of the status of a cash clearing, but also is invalid against the purpose of housing redevelopment improvement project."

(k) On April 11, 2020, the Defendant passed a resolution to re-examine the Defendant’s articles of incorporation in accordance with the purport of the judgment of the court of first instance at the ordinary meeting of the shareholders, and on this matter, the head of Gyeyang-gu revised the articles of incorporation on April 24, 2020, Article 34(4), Article 45(5) and (6) of the Defendant’s articles of incorporation as modified by the authorization for the change of the establishment of the instant case were deleted, and Article 9(6)

[Articles of Incorporation after the Amendment of April 24, 2020]

(6) A person who has failed to apply for parcelling-out within the period of application for parcelling-out in an application for parcelling-out under the project implementation authorization under Article 9 (6) of the Table included in the main sentence may be reinstated as an association member at the time of abolition of the project implementation authorization (to be deemed reinstated from

[Judgment]

○ 10 pages 11 "Nos. 15" are 15,23,27,36,37 "Nos. 15 (including a Serial number; hereinafter the same shall apply).

3. Relevant statutes;

This Court's explanation is identical to the entry of "2. related Acts and subordinate statutes" as stated in the 10th of the judgment of the court of first instance. Thus, this Court's explanation is citing it in accordance with Article 8 (2) of the Administrative Litigation Act and the text of Article 420 of the Civil Procedure Act.

4. Determination on this safety defense

A. The defendant's assertion

A person who can dispute a project implementation plan is an interested member, and there is no interest in the redevelopment association as a matter of principle, and there is no legal interest to dispute this. The plaintiffs are those who become cash liquidation agents pursuant to the previous project implementation plan of this case, and they do not change their legal status according to what kind of cancellation of the project implementation plan of this case (the plaintiffs clearly state that they do not intend to recover the status of union members), and the project implementation plan of this case does not contain the list or number of union members. Thus, there is no legal interest to seek cancellation of the project implementation plan of this case. Accordingly, among the plaintiffs' lawsuits of this case, the part of the plaintiffs' claim for cancellation of the project implementation plan of this case of this case does not have legal interest to seek cancellation of the project implementation plan of this case.

B. Determination

1) The legal interest as referred to in Article 12 of the Administrative Litigation Act refers to the direct and specific interest protected by the law based on the pertinent administrative disposition, and it is merely an indirect or factual or economic interest in relation to the pertinent administrative disposition. However, even if a third party who is not the direct party of the administrative disposition is not the other party, if the legal interest is infringed by the pertinent administrative disposition, he/she is entitled to file a revocation lawsuit and obtain a decision on the propriety thereof (see Supreme Court Decision 2006Du12289, Jan. 25, 2007).

In addition, according to Articles 38, 40(1), and 47 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 11293, Feb. 1, 2012; hereinafter “former Act”), Article 48 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 27409, Jul. 28, 2016); Article 67(1) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation for Land, Etc. for Public Works (hereinafter “Land Compensation Act”), liquidation money for persons subject to cash liquidation in a housing redevelopment project under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “cooperative”) may be acquired ownership of land, etc. subject to cash liquidation by the adjudication of the Land Compensation Act. However, since the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents does not have a provision on the price basis for expropriation, it shall be calculated based on 25016(16).

2) We examine the following circumstances revealed in addition to the purport of the entire pleadings in light of the above legal principles. When the project implementation plan in this case becomes invalid or cancelled and retroactively becomes null and void, a series of subsequent actions, such as the establishment of management and disposal plan and its authorization and acceptance procedures, etc. based thereon, shall also lose its retroactive effect (see Supreme Court Decision 2011Du30199, Nov. 28, 2013). The defendant shall establish a new project implementation plan for the project in this case and carry out the project in this case after obtaining authorization, even though the plaintiffs expressed their intent to maintain their status as a cash liquidation, the acceptance adjudication procedure in this case may be retroactively invalidated, and even if the base date of the expropriation compensation determined in the new new expropriation adjudication procedure is different, it may be changed to the direction of increase in the amount of compensation which the plaintiffs can receive, and thus, the plaintiffs may file a claim against the defendant for the cancellation of the project implementation plan in this case, which is protected by the Act on the Maintenance and Improvement of Urban Areas and the Security of Land Act.

A) The resolution to amend the articles of incorporation of this case was restored due to the abolition of the former project implementation plan of this case where the plaintiffs' qualifications as members of a cash liquidation agent were restored to the original project implementation plan of this case, and thereafter the latter imposes additional project expenses on the owners of land or buildings located within the business district at the time of the resolution to amend the articles of incorporation of this case and the authorization to amend the articles of incorporation of this case was valid (the defendant asserted that the project implementation plan of this case was made regardless of the resolution to amend the articles of incorporation of this case, but the decision was made on the premise that 799 persons including the plaintiffs, etc., who were cash clearing agents at the time of applying for approval to the project implementation plan of this case, were all members (including some cash clearings attending the resolution to liquidate the corporate implementation plan of this case). The defendant asserted that the plaintiffs recovered their status as members before the closing of argument of the first instance judgment after the filing of the lawsuit of this case, and that the ratio occupied by cash liquidation agents in the project implementation plan of this case was about 140% of the land purchaser at the time of this case.

B) The former project implementation plan concerning the instant project was invalidated after obtaining approval from the head of Gyeyang-gu Office on September 13, 2017, and the instant project implementation plan became effective upon the approval of the head of Gyeyang-gu Office on September 19, 2018, premised on the validity of the amendment of the articles of incorporation of the instant project implementation plan. Therefore, even if the instant project implementation plan was revoked through the instant lawsuit and becomes retroactively null and void, the instant project implementation plan does not have to be restored, and the validity of the instant management and disposal plan or the expropriation decision procedure, based on the premise that the instant project implementation plan is valid, cannot be maintained.

C) According to the former Act, within 60 days from the date of public announcement of authorization for project implementation (the date of concluding a contract with the contractor where the contractor has been selected), a summary of charges and the period for application for parcelling-out shall be notified to the owners of land, etc., and a public announcement of the details of the site or structure subject to parcelling-out shall be made in a daily newspaper published in the relevant region (Article 46(1)1); where the owners of land, etc. do not apply for parcelling-out or withdraw application for parcelling-out or is excluded from the object of parcelling-out under the management and disposal plan authorized under Article 48, the land and structure shall be liquidated in cash within 150 days from that time from that time (Article 47). Furthermore, the purport of the Act on Compensation for Land shall be deemed to have been applied mutatis mutandis to the expropriation or use of the land or structure for implementing a rearrangement project and other rights within the relevant rearrangement zone, except as otherwise provided for in this Act (Article 40). The land’s appraisal of the land at the same time of public announcement of the project implementation plan shall be deemed to have to be made within the basic land price.

5. Whether the project execution plan of this case is legitimate

A. The plaintiffs' assertion

1) Since the project implementation plan of this case and the resolution of the general assembly on such project implementation plan of this case were made on the premise that the invalid amendment of the articles of incorporation is valid, the project implementation plan of this case, which is a subsequent disposition, regardless of whether both parties are independent of each other

2) The project implementation plan of this case contains a total of members who are not members of the association up to about 70% of the actual number of members of the association, and thereby contains an error of which the project cost, in particular the land purchase cost, which is the compensation for cash clearing business operator, is insufficiently counted.

B. Determination

In full view of the following circumstances, the project implementation plan of this case was made under the premise that the resolution of the amendment of the articles of incorporation of this case was valid, and the resolution of the general meeting on the project implementation plan of this case also was made under the premise that the resolution of the general meeting on the project implementation plan of this case of this case of this case of this case of this case of this case of validity. Thus, the project implementation plan of this case of this case of this case of this case of this case of this case of this case of this case of this case of invalidity of the project implementation plan of this case of this case is invalid

1) Article 35(5) of the Act on the Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 2010, Jan. 1, 2011; Presidential Decree No. 2010, Feb. 21, 2011; Presidential Decree No. 2010, Feb. 21, 2011; Presidential Decree No. 2010, Feb. 21, 201; Presidential Decree No. 20135, Feb. 21, 2011; Presidential Decree No. 2010, Feb. 31, 2011; Presidential Decree No. 20135, Feb. 21, 2011).

In addition, Article 40(3) of the Act provides that where a cooperative intends to amend its articles of association, it shall hold a general meeting and obtain authorization from the head of a Si/Gun, etc. with the consent of a majority of union members, notwithstanding Article 35(2) through (5) of the Act, but the qualification of union members (Article 40(1)2), the timing and procedure for bearing maintenance expenses (Article 40(1)13), etc. shall be the consent of at least 2/3 of union members, and Article 40(4) of the Act provides that where it intends to amend any minor matter prescribed by Presidential Decree, it shall be modified in the manner prescribed by this Act or the articles of association and shall be reported to the head of a Si/Gun, etc. Accordingly, Article 39 of the former Enforcement Decree of the Act (amended by Presidential Decree No. 29876, Jun. 18, 2019) provides for matters concerning the name and the location of office of union executives (Article 1) and matters concerning the number of association executives and scope of affairs (Article 2).

According to the above provisions, the resolution to amend the articles of incorporation of this case pertains to “qualification of partners” and “the timing and procedure for bearing the rearrangement project costs,” and can be seen as a resolution on the important matters of the association, which require the modification with the consent of at least 2/3 of the members. Therefore, if a subsequent disposition is made on the premise that the amendment of the articles of incorporation is null and void, the subsequent

2) Before applying for approval of a project implementation plan, the project implementer must go through the resolution of the general meeting (Article 50(3) of the Urban Improvement Act), the resolution of the general meeting on the project implementation plan shall be approved by the majority of partners (Article 45(3) of the same Act), and at least 20/10 of partners shall be present at the general meeting directly (Article 45(6) of the same Act).

The Defendant’s association members pursuant to the articles of incorporation prior to the amendment at the time of the general meeting’s resolution on the instant project implementation plan was 477 and 330 cash clearing agents. However, according to the invalid amended articles of incorporation, a notice of convening a general meeting was given to some cash clearing agents on the premise that they recover the status of union members pursuant to the invalid provisions of the articles of incorporation, and a resolution was made with the consent of 570 members exceeding the total number of union members as a result of the attending the general meeting by 579 members and with the consent of 570 members exceeding the original total number of union members. Accordingly, the Defendant applied for approval of the instant project implementation plan by stating “570/799(71.3%)” as “570/79(71.3%)” in the application for authorization of the project implementation plan

In regard to this, even if it is determined that the resolution to amend the articles of incorporation of this case is null and void, the defendant asserts that there is no illegality in the resolution as long as the quorum is satisfied. However, the defendant originally included about 330 persons who are not partners in the total number of union members in accordance with the amended articles of incorporation, from about 70% of the union members, and notified them to convene the general meeting and allow 136 persons among them to attend the general meeting and exercise voting rights, so that the resolution is made at the general meeting of the union at which 28% of the union members originally attended the general meeting and the voting rights of the union members are exercised. This is a structural defect that occurred in order by the defendant who tried to revise the articles of incorporation of a material defect, unlike a case where some non-members attend the general meeting by simple mistake, etc. and exercise voting rights. In light of the importance of such defect, it is difficult to see that there is no defect in this decision.

Ultimately, the resolution of the general meeting on the project execution plan of this case is based on the premise that the invalid amendment of the articles of incorporation is valid, and there is a serious defect.

3) In addition, the instant project implementation plan includes the rearrangement project cost (Article 52(1)12 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions) and the details of the rearrangement project cost of the instant project implementation plan, when calculating land purchase cost to be paid to cash clearing agents, it was calculated on the premise that cash clearing agents are 30% of the total owners of land, etc. However, this is not only less than 41%, which is the ratio of cash clearing agents already determined at the time of the resolution on the instant project implementation plan, but also more cash clearings can take place in the process of application for parcelling-out, etc. to be made thereafter, it appears that the rearrangement project cost under the instant project implementation plan is underestimated by erroneous calculation of the number of members and cash clearing agents in accordance with the invalid provisions of the amended articles of association. In addition, according to the amended provisions of the amended articles of association, the previous cash clearing agents are not only returned to their members, but also shall bear in proportion to the value of the previous assets until they lose their membership. This is a significant benefit in terms of the previous members.

4) After the pronouncement of the first instance judgment, the Defendant deleted part of the articles of incorporation confirmed as invalid in the above judgment, and partly amended. However, in light of the fact that the legality of administrative disposition should be determined on the basis of the law and fact conditions at the time of the disposition, barring any special circumstance (see Supreme Court Decision 2002Du4464, Oct. 25, 2002, etc.), it is difficult to deem the project execution plan of this case lawful on the ground that the project execution plan of this case was conducted after the date of the execution plan of this case.

C. Judgment on the Defendant’s assertion of the lower judgment

The reasoning for this Court’s explanation is as follows: (a) the part of the “determination on the Defendant’s argument of ruling of assessment” stated in the 18-19th judgment of the court of first instance is identical to that of the part of the “determination on the Defendant’s argument of ruling of assessment of assessment of assessment of assessment of assessment of assessment of assessment of assessment of assessment of assessment

D. Sub-committee

Therefore, the project execution plan of this case is null and void. Since the project execution plan of this case still exists in appearance, and there is a legal interest to seek confirmation of nullity in order to escape it as the plaintiffs, the plaintiffs' claim seeking cancellation is justified (this case's project execution plan of this case is null and void, even if it is difficult to view it null and void), since the project execution plan of this case should be revoked illegally and therefore the plaintiffs' claim is reasonable).

6. Conclusion

Therefore, the part of the claim for cancellation of the project execution plan of this case among the plaintiffs' claims is reasonable, and all of them should be accepted. Since the judgment of the court of first instance on this part is justified, the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

(attached Form omitted)

Judges Cho Han-chul (Presiding Judge)

1) 30 persons of cash clearing ± 807 persons of lands, etc. 】 100