See Attached List of Plaintiffs (Attorney Han-soo et al., Counsel for the plaintiff-appellant)

See Attached List of Intervenors joining the Plaintiffs (Law Firm Doro, Attorneys Kim Yong-hoon, Counsel for the plaintiff-appellant)

The head of Seocho-gu Seoul Metropolitan Government

○○○○ Apartment Housing Reconstruction Project Association (Law Firm Dawon, Attorneys Jeong Jong-sung et al., Counsel for the plaintiff-appellant)

April 6, 2018

1. The establishment authorization of the Defendant’s Intervenor, which was rendered on January 31, 2017, is revoked.

2. Of the costs of lawsuit, the part pertaining to the defendant's participation is borne by the defendant, and the remainder is borne by the defendant including the part pertaining to the defendant's participation.

The same shall apply to the order.

1. Details of the disposition;

A. On January 31, 2017, the Intervenor joining the Defendant is a housing reconstruction and rearrangement project partnership that obtained authorization to establish a rearrangement project (hereinafter “instant disposition”) from the Defendant on January 31, 2017 in Seocho-gu Seoul (hereinafter “instant land”) and the Plaintiffs and supplementary intervenors are co-owners of the instant land-based commercial buildings (hereinafter “instant commercial buildings”).

B. The land of this case is registered as co-owners of three apartment buildings on the ground (hereinafter “the apartment of this case”), co-owners of the building of this case and the Korea-Japan-Co-ownership corporation (hereinafter “Korea-Japan-Co-ownership”). Co-owners of the building of this case including the plaintiffs and the supplementary intervenors are 48 persons, and the area corresponding to the part of the site of the building of this case among the land of this case is 2,863.12 square meters.

C. The Defendant’s Intervenor’s establishment promotion committee for the Defendant’s establishment of the partnership (which does not distinguish the Defendant’s Intervenor and the Defendant’s Intervenor’s establishment promotion committee, and refers to the Defendant’s Intervenor’s establishment without distinguishing it from the Defendant’s establishment promotion committee) is registered as 48 persons in the instant commercial building, and only one representative is deemed as the owner of land, etc., and the sectional owner of each apartment building is not more than 5 persons, and each sectional owner of the apartment building is not more than 5 persons, as prescribed by Article 16(2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (wholly amended by Act No. 14567, Feb. 8, 2017; hereinafter “former Urban Improvement Act”). The Defendant

D. As above, the Defendant’s Intervenor calculated the number of owners of the instant commercial building as one and obtained the consent of 318 owners of the land, etc. among the total number of 325 owners of the land, etc. in the rearrangement zone, and the consent of 13,542 square meters of the total land size of 17,712.8 square meters, and received the instant disposition from

[Ground of recognition] Facts without dispute, Gap evidence 5, 14, Gap evidence 15-1, Eul evidence 4, 5, 7, and 8, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiffs and supplementary intervenors

1) The instant disposition should be revoked on the ground that there are procedural or substantive defects as follows.

A) procedural defect

In order to establish a housing reconstruction and rearrangement project association, at least 3/4 of all sectional owners, at least 3/4 of land size, and at least 3/4 of sectional owners in each building, and at least 5 of sectional owners in each building. However, if the sectional owners in each building are not more than 5, the above 3/48 co-ownership is not required. However, the above 48 sectional owners in each of the above 48 commercial buildings are registered as co-ownership, but in fact, the above 48 sectional owners in each of the above 48 commercial buildings are in the sectionally owned co-ownership, which separates each of the corresponding parts of the commercial buildings. Therefore, in relation to the above 3 requirements, the defendant did not have obtained the consent of the majority of the sectional owners in the commercial building of this case, and therefore, the defendant did not obtain the consent of the majority of the sectional owners in the commercial building of this case, and the defendant judged that all of the consent rates for establishing

B) substantive defect

(1) The articles of incorporation of the Intervenor joining the Defendant did not specify the distribution of development gains arising from the conversion of the floor area ratio of the instant commercial building into apartment, and thus, the Defendant rendered the instant disposition.

(2) The Defendant’s Intervenor’s business plan to establish the Intervenor infringes on the property rights of the instant shopping district owners regarding the estimated project cost, matters concerning the allocation of project cost, matters concerning the attribution of ownership after completion of the project, and method of calculating estimated contributions, and was prepared in line with the interests of the owners of the instant apartment, and thus, is unlawful against the principle

(3) The articles of incorporation of the Intervenor joining the Defendant did not have a basic and general provision regarding the share sharing ratio of each of the sectional owners of the instant apartment and the instant commercial buildings based on the acquisition of a size of 997.256m2 equivalent to the share of the Han new co-ownership among the instant land, whether to include reconstruction, the sharing of development gains, the share ratio of public land, and the contribution acceptance, etc., and thus, the Defendant was unlawful.

2) Article 16(2) of the former Act provides that the consent of the majority of sectional owners by each Dong shall be obtained for the establishment of the association. If the instant commercial building is not a sectionally owned co-ownership, but a simple co-ownership, the consent of the majority of sectional owners cannot be presented, and thus, the consent of all co-owners shall be obtained. As to the establishment of the Defendant joining the Defendant, the instant disposition is unlawful, since there was no consent of all co-owners of the instant commercial building, and thus,

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Determination as to the assertion of procedural illegality

A) Whether the ownership of the commercial building of this case is in a sectionally owned relationship

The Plaintiffs and the Intervenor asserted that there is a procedural defect in the establishment of the Intervenor joining the Defendant, which did not obtain the consent of a majority on the premise that the ownership of the shopping district in this case is in a sectionally owned co-ownership relationship, and first, I would like to examine whether the ownership of the shopping district in

(1) In order for sectional ownership to be established for one building, there must be a separate act of separating the parts of the building which are physically partitioned in the building from an objective and physical aspect, and the section of the building should be independent in its structure and use, as well as the physically partitioned part of the building as the object of sectional ownership. Here, the act of partitioning is a kind of legal act, without changing the physical form and quality of the building, which intends to divide the specific parts of the building into the objects of sectional ownership under the legal concept, and such time and method does not have any special restriction, and it is acknowledged if the separate intention of the disposal authority is objectively expressed from an objective point of view. Therefore, even before the physical completion of the sectional ownership, if the intention of dividing the building into the newly constructed building is objectively expressed, the existence of the act of partitioning can be recognized, and even if the building and its corresponding act are completed objectively and physically, it is still registered in the collective building ledger or has not been registered in the register (see Supreme Court en banc Decision 2017Da7578, Jan. 17, 2017).

(2) In full view of the following facts and circumstances, it is reasonable to view that the ownership of the commercial building of this case was registered as the co-ownership of 48 persons including the plaintiffs and the Intervenors, and in addition, the ownership of the commercial building of this case is divided into 54 commercial buildings independent from its structural structure and use, and it is reasonable to view that 48 persons registered as co-ownership owned and used by each of the co-ownership is divided into co-ownership of the commercial building of this case, taking into account the following facts and circumstances acknowledged by taking into account the overall purport of the pleadings and video as stated in Gap evidence Nos. 14 through 19, 22, 23, 31, 48 through 52, 54 through 64, and Eul evidence No. 16 (including the serial number number). Therefore, it is reasonable to deem that the ownership of the commercial building of this case is in a co-ownership relationship.

① The instant commercial building is a building with the second and third floors above the ground, and one new public building was newly constructed in around 1982 and the area of each lake, location, and area was specified in around 1987, and sold to 54 commercial building. The owners who purchased each of the instant commercial building has thereafter disposed of their own commercial building independently.

② All other commercial rooms, excluding nine rooms located in the first floor among the 54 individual commercial rooms consisting of the instant commercial buildings, are clearly identified as outer walls and have separate doors. Meanwhile, the nine commercial rooms located in the first floor are not installed with outer walls closed to open commercial buildings, but each structure is installed on the basis of the boundary mark of the floor and the boundary of each structure is specified and the independence in structural use is recognized (whether or not a boundary mark prescribed by the Enforcement Decree of the Act on the Ownership and Management of Aggregate Buildings is installed is only one standard for determining the independence of each separate store, so it cannot be concluded that the said boundary mark is not installed. In addition, since the commercial building has independence because it has its intrinsic characteristics, unlike the residential building, it should consider the above characteristics in determining whether it is independent).

③ The tax authorities, including the Defendant, imposed property tax, etc. by specifying each of the instant shopping districts, and the business registration certificate also specified and issued each of the shopping districts. The Intervenor joining the Defendant also assessed the previous and the subsequent assets of the instant shopping district in the manner of calculating and adding up the base value of each of the shopping districts. The management fee of the instant shopping district was imposed for each of the individual shopping districts. In addition, considering the above circumstances, it is reasonable to view that the classification of the instant shopping district was objectively indicated and perceived.

B) Whether consent of a majority of sectional co-owners is required for the establishment of a partnership where a building is in a sectionally owned co-ownership relationship

Article 16 (2) of the former Act on the Maintenance and Improvement of Urban Areas provides that "When the promotion committee of housing reconstruction project intends to establish an association, it shall obtain the consent of the majority of sectional owners by Dong (in the case of welfare facilities, the whole welfare facilities within the housing complex shall be regarded as one Dong) of multi-family housing in the housing complex, at least 3/4 of all sectional owners within the housing complex and at least 3/4 of land size shall be obtained," and it is a matter of issue whether the consent of the majority of the co-owners of the building in this case as co-owners of the above provision as co-owners should be deemed to be the co-owners of the above sectional ownership

In light of the purpose and purport of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, necessity to protect property rights, and the following circumstances, in a case where the owners as shown in the instant shopping district are in the co-ownership relationship, it is reasonable to view that the majority consent should be required for establishing the association. Therefore, in the process of establishing the Defendant’s Intervenor, unless the consent of the majority of co-owners of the divided ownership in the instant shopping district is obtained in the process of establishing the association, the instant disposition

① Article 19 of the former Act provides that “When ownership and superficies of land or buildings belong to several co-owners, one representative shall be deemed to be the number of co-owners.” Article 28(1)2(a) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas (wholly amended by Presidential Decree No. 28628, Feb. 9, 2018) provides that “in calculating the consent of the owners of land, etc., if ownership or sectional ownership belongs to several co-owners, one representative shall be calculated as the owner of land, etc.” The purpose of Article 19(1)2(a) of the same Act is to ensure the procedural convenience of the management of the association by selecting one representative co-owners and having one person registered with the partnership, and to prevent the owners of land or buildings from exercising undue influence over the progress of the rearrangement project by changing the form of ownership to excessive voting rights, it is basically based on the protection of property rights of the owners of land, etc. based on equity, and the substance of sectional ownership is only registered as a co-ownership and accords with the purport of the establishment.

② In a case where the right to consent to establish an association, etc. is granted to only one representative solely on the ground that the ownership of the commercial building in this case is registered as co-ownership, unless otherwise stipulated by the articles of association, the co-owners of the commercial building in this case are practically obstructed the exercise of voting rights in proportion to property rights during the course of the reconstruction improvement project, so it is highly likely that legitimate protection of property rights may not be granted, and finally one sectional ownership shall be sold in one unit, and it is contrary to equity. In particular, 48 co-owners of the commercial building in this case are 48 persons, and 54 sectional owners are divided into 54 units, and each sectional classification is divided into 2,863.12 square meters. In light of the fact that the area of the land corresponding to the site in this case exceeds 16% of the total area of the land in this case, it goes against the purport of the relevant provisions of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions

③ Since sectional co-owners of the instant commercial building may dispose of each corresponding room individually and independently, it cannot be deemed that there is an essential difference compared to the case where the instant commercial building is registered as a sectioned, and there is no reasonable ground to treat it differently in calculating the consent rate or granting the qualification of union members.

④ When deeming the ownership of the instant commercial building as co-ownership, unless all co-owners consent or the representative elected with the consent of all co-owners consent, the representative of all co-owners cannot obtain the membership of the instant commercial building. Ultimately, the instant commercial building is subject to the exercise of the right to claim sale. The owners of the instant commercial building, who have the right to substantially dispose of each of the building's rooms, are unfairly restricted from exercising their free property rights at the implementation stage of the reconstruction improvement project, which goes against the purport of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, which unfairly limits the exercise of their right to own property at the implementation stage of the reconstruction improvement project, and this goes against the purpose of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents. In fact, the Defendant brought a lawsuit claiming sale against

C) Judgment on the Defendant’s argument

The Intervenor joining the Defendant asserts that even if there were procedural defects without the consent of the majority of the shop owners at the time of the establishment of the Intervenor joining the Defendant, 47 of the building owners of the instant case appointed Plaintiff 28 as representative members around June 2017 and agreed that Plaintiff 28 do legal acts as representative members. Thus, the Defendant’s Intervenor’s joining the Defendant’s joining the Defendant’s joining the Defendant’s joining the Defendant’s joining the Defendant’s joining the Defendant’s joining the Defendant. Accordingly,

In full view of the purport of the argument in the evidence Nos. 10 and 11, 47 of the owners of the commercial building of this case were appointed as representative members around June 2017. Plaintiff 28 consented to the establishment of the Defendant joining the Defendant. Meanwhile, in full view of the purport of the argument in the evidence Nos. 33 and Nos. 43-1 and 43-2, 46 of the owners of the commercial building of this case including the Plaintiffs and the Intervenor’s Intervenor were submitted to the Defendant’s Intervenor on June 27, 2017 with a written membership request for sale against the owners of the commercial building of this case and submitted a written membership request for the establishment of the Plaintiff’s association to prevent damages to the Plaintiff. It is also acknowledged that the Plaintiff’s 1 did not agree to the procedure of the Plaintiff’s establishment of the commercial building of this case without any specific consent from the Plaintiff’s representative’s 48 members of the commercial building of this case. It is still acknowledged that the Plaintiff’s 28 members of the Defendant did not consent to the procedure of this case.

2) Sub-committee

Therefore, the instant disposition should be revoked as it is unlawful on the ground of procedural defect (this case’s disposition should be revoked on the ground as seen above, and thus, it is not further determined as to the remaining allegation of illegality).

3. Conclusion

Therefore, the plaintiffs' claims are justified and all of them are accepted. It is so decided as per Disposition.

[Attachment]

Judges Park Jong-jin (Presiding Justice)

Note 1) Of the written complaint and each briefs, the part in which the number of sectional owners is stated as 47 appears to be erroneous.

Note 2) Plaintiffs 4, 5, 7, 13, 17, 18, and 21 are the ancillary arguments of Plaintiffs 4, 5, 7, 13, 17, and 18.