Plaintiff (Appointed Party) (Law Firm Cho Young-chul et al., Counsel for the plaintiff-appointed party-appellant)

Head of the Geum-gu Busan Metropolitan Government (Attorney Park Jong-sik, Counsel for the plaintiff-appellant)

Busan District Housing Redevelopment and Improvement Project Association (Law Firm Limited International Law, Attorneys Lee Jong-il et al., Counsel for the plaintiff-appellant)

April 3, 2020

Busan District Court Decision 2018Guhap24859 Decided May 23, 2019

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of approving the establishment of an association with respect to the redevelopment project promotion committee of the Blue II area on October 29, 2018 shall be revoked.

3. The part resulting from the participation among the total costs of the lawsuit is assessed against the Intervenor, and the remainder is assessed against the Defendant, respectively.

The same shall apply to the order.

1. Progress of the disposition;

The reason why the court uses this part is the same as that stated in Paragraph 1 of the reasoning of the judgment of the court of first instance, and 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.

2. Whether the authorization disposition of this case is legitimate

A. The plaintiff (appointed) and the designated parties' assertion

The plaintiff (appointed party, hereinafter referred to as the plaintiff) and the designated parties are owners of land, etc. within the project zone of this case, and for the following reasons, the instant authorization disposition should be revoked as it is unlawful.

1) Defect in the instant authorization disposition relating to the statutory consent rate

If the consent rate of the establishment of an association is re-calculated by taking into account the following factors, it does not meet 75% requirement at the statutory consent rate:

A) As to the number of consenters (molecule) recognized at the time of the instant authorization disposition, 713

The number of consenters should be calculated except for the consenters who have withdrawn their consent to establish an association and those who have submitted invalid written consent.

(1) 61 persons who have withdrawn their consent to establish an association.

(A) The supplementary intervenor’s articles of incorporation was amended by the 18th articles of incorporation (hereinafter “the 17th articles of incorporation”) stipulated at the 17th meeting of the promotion committee (hereinafter “the 17th articles of incorporation”) and re-amended by the 24th articles of incorporation, which are the same as that of the 17th articles of incorporation. Therefore, in order for the supplementary intervenor to obtain authorization for establishment based on the 24th articles of incorporation, the supplementary intervenor confirmed the withdrawal of the 18th articles of incorporation with respect to the 17th and 18th articles of incorporation, and confirmed the 18th articles of incorporation with respect to the 18th articles of incorporation, and the 18th articles of incorporation must newly obtain consent with respect to the 18th articles of incorporation, but the 9th articles of incorporation of the promotion committee based on Article 29 of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”).

(B) According to a civil petition reply by the Defendant that “the persons consenting to the 18th Articles of Incorporation may withdraw their consent,” the 61 of the persons consenting to the 17th and 18th Articles of Incorporation, who were issued by the Defendant, withdrawn their consent prior to the application for authorization of this case. Therefore, the above 61 persons should be excluded from the number of consenters.

(2) A person who submitted an invalid written consent, such as a retroactive statement on the date of consent

(A) One person (non-party 1) written retroactively from the date on which the written consent was written.

(B) Four written consent by four persons (excluding Nonparty 2, Nonparty 3, Nonparty 4, and Nonparty 5) who did not comply with the form required at the time of the filing of the written consent.

(C) Nonparty 6’s written consent

B) Regarding the number of the owners of land, etc. recognized at the time of the instant authorization disposition

940 owners of land, etc. recognized at the time of the instant authorization disposition shall be added by 11 persons for the following reasons.

(1) 2 owners of state-owned and public land

In the case of state-owned and public land within the instant project zone, the Defendant calculated only the gold-gu and Busan Metropolitan City as the basis for the property management authority, but the Minister of Land, Infrastructure and Transport and the Superintendent of Busan City Office of Education should also be added based on ownership.

(2) 9 additional persons whose whereabouts are unknown

In light of the fact that the existence of the heir can be easily known by Nonparty 7 (owner number 306) and Nonparty 8 (owner number 883) through each of the multiple copies (No. 49-1, 2) and a copy of the register (No. 50-1, 2) of the registry of the registry of the registry of the case (No. 50-1, 2) and the registry of the registry of the registry of the registry of the non-party 7 (owner number 306) and the non-party 8 (owner number 883), the supplementary intervenor was not able to detect the existence and location of the heir as to the nine of the unknown person within the project area where the location of

2) Omission of procedures for resolution of the residents' general meeting concerning the outline project implementation plan

According to Article 21 subparagraph 5 of the attached Table 21 of the Regulations on the Operation of the Rearrangement Project Establishment Promotion Committee, the amendment of the project implementation plan, which is a general plan, shall be determined through the resolution of the residents' general meeting. The supplementary intervenor did not go through the resolution procedure of the residents' general meeting on the change of the project implementation plan, such as the project cost increases to KRW 140 billion.

(3) Failure to comply with the duty to provide information, such as estimated contributions.

The Intervenor did not provide any information related to estimated contributions to the owners of land, etc. located within the instant project zone, and the estimated contributions, etc. provided by Busan Metropolitan City through the website of the rearrangement project are very insufficient data for the owners of land, etc. to make a decision on whether to approve the establishment of the association. Therefore, the Intervenor obtained consent to establish an association from some association members without providing predicted contributions to the association members, and the aforementioned written consent to establish an association is entirely null and void. As such, the above

Even if a supplementary intervenor can be deemed to have provided information, such as estimated contributions, to the details posted on the website of Busan Metropolitan City, the notice of such information is around June 18, 2015. Therefore, at least the written consent for the establishment of an association that was submitted prior to the notice is invalid.

B. Relevant statutes

[Attachment 2] The entry into the relevant statutes is as follows.

C. Determination on the defective assertion of the instant authorization disposition relating to the statutory consent rate

1) As to the number of consenters (molecule) 713

A) 61 withdraw consent of the establishment of the association with respect to the amendment of the 24th articles of incorporation

The reasoning for this part of the judgment of the court of first instance is as stated in Section 2(c) of the reasoning of the judgment of the court of first instance (as stated in Sections 6 through 11 of the judgment of the court of first instance). Thus, this part of the reasoning is accepted by Article 8(2) of the Administrative Litigation Act and the text of Article 420 of the Civil Procedure Act.

B) As to the allegation that the consent was void, such as retroactive entry of the date of consent

(1) As to the allegation that the consent of Nonparty 1, whose date of consent was retroactively stated, is null and void

(A) The Plaintiff asserts that, upon receiving the written consent from Nonparty 1 to Nonparty 1 on July 30, 2018 on the same day, only one written consent is written differently (date of birth omitted), “(date of birth omitted)” and “date of birth (date of birth omitted), address: address: (date of birth omitted)” and the other written consent is written differently, and that the date of preparation of each written consent for the establishment of the association is July 30, 2018 and that the date of registration of transfer of ownership is clearly written retroactively as of August 8, 2018.

(B) Facts of recognition

According to the statements in Eul evidence 1, 2, 29 (in particular, 31 to 53 of Eul evidence 2) each, the following facts may be recognized:

(1) Land within the instant business area (number 1 omitted)

The land (number 1 omitted) in the instant project zone (hereinafter referred to as “land number 1 omitted”) is jointly owned by five persons, including Nonparty 1, from November 14, 2017 to Nonparty 9, Nonparty 10, Nonparty 11, Nonparty 12, and Nonparty 13.

(2) A building within the instant business area (number 1 omitted)

In the instant case, there are two lots of buildings on the land (number 1 omitted), and Nonparty 1 completed the registration of ownership transfer on August 8, 2018 for the said two buildings (hereinafter “instant building (number 1 omitted), due to “Inheritance by consultation and division on November 11, 2008.” Meanwhile, Nonparty 1’s domicile on the registry of the instant building (number 1 omitted) is “(number 2 omitted)’s road name address, which is the road name of “(number 1 omitted).”

③ Nonparty 1’s submission of written consent to establish the association

The five co-owners of the instant land (excluding Nonparty 9, Nonparty 11, Nonparty 12, Nonparty 10, and Nonparty 13) prepared and submitted a written consent to appoint Nonparty 1 as the representative partner as of July 30, 2018. On the same day, Nonparty 1, who was appointed as the representative partner, prepared and submitted a written consent to establish each association with respect to the instant land and the instant building owned by himself/herself (number 1 omitted). Nonparty 1 entered his/her address in the written consent on the instant land (number 1 omitted) and written “(number 1 omitted),” and written “(number 1 omitted)” in the written consent on the instant land (number 1 omitted).

④ Nonparty 1’s written confirmation of April 2, 2020

As of April 2, 2020, Nonparty 1 prepared a written confirmation stating that “The address of ○○ Dong and △△△do respectively is written in the written consent for the establishment of the association and there is time to personally go in Busan and also in the case of the △△do, and it is also good to receive mail.”

(C) Determination

In full view of the aforementioned facts and the purport of the entire pleadings, the following circumstances recognized as follows: (i) Nonparty 1 acquired ownership of the building of this case (number 1 omitted) on the ground of “Inheritance before the completion of the registration of ownership transfer on August 8, 2018 (Articles 1005 and 187 of the Civil Act)” and submitted each written consent; (ii) Nonparty 1 appears to have submitted a written consent to establish an association in the process of submitting a written consent to establish an association with the land of this case on July 30, 2018, along with the land of this case (number 1 omitted); (iii) Nonparty 1 submitted a written consent to establish an association on the said building before the completion of the registration of ownership transfer; and (iv) Nonparty 1 submitted a written consent to establish an association on the land of this case (number 2 omitted); and (iv) Nonparty 1 prepared a written consent to establish an association (number 2 omitted); and therefore, Nonparty 1’s assertion to the effect that this case’s written consent to establish a genuine written consent to establish an association.

(2) As to the assertion that the written consent of Nonparty 2, Nonparty 3, Nonparty 4, and Nonparty 5 is invalid

(A) As to the written consent of Nonparty 2

The Plaintiff asserts that since Nonparty 2’s consent date of the establishment of the association was April 25, 2016, the Plaintiff used the form of consent form for the establishment of the association under the former Enforcement Rule of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions (Ordinance of the Ministry of Land, Infrastructure and Transport No. 296) as amended on March 4, 2016, the above consent form was invalid.

Article 1 of the Addenda to the Enforcement Rule of the former Enforcement Rule of the Urban Improvement Act (Ordinance of the Ministry of Land, Infrastructure and Transport No. 296) provides that “The form of the written consent amended on March 4, 2016 (attached Form 4-2) shall enter into force on May 1, 2016.” Thus, it is legitimate for Nonparty 2 to use the standard form prior to the amendment as mentioned above on April 25, 2016, in which Nonparty 2 entered into a written consent for the establishment of the association. Therefore, the Plaintiff’s assertion is without merit.

(B) As to the written consent of Nonparty 3

The Plaintiff asserts that since Nonparty 3’s consent date for the establishment of the association was April 20, 2016, the Plaintiff used the amended form on March 4, 2016, even though it used the consent form for the establishment of the association before the amendment on March 4, 2016, the above consent form is invalid.

In light of the following circumstances: (a) although Nonparty 3’s written consent to the establishment of the association on April 20, 2016 was amended on March 4, 2016 and was used in attached Form 4-2 of the former Enforcement Rule of the Urban Improvement Act (Ordinance of the Ministry of Land, Infrastructure and Transport No. 296) enforced on May 1, 2016, it is deemed that the following circumstances are considered to have been comprehensively taken into account: (b) the amendment and publication date of the Enforcement Rule of the Urban Improvement Act and the enforcement date of the Act are different in their form; (c) the Plaintiff’s written consent to the establishment of the association on April 25, 2016 should be used on May 1, 2016; (d) the Plaintiff’s written consent to the establishment of the association on May 20, 2016, including the ownership of the building before implementation form; (e) the details of the consent to the new construction of the association; and (e) the details of the consent to the new construction project.g.

(C) As to each written consent of Nonparty 4 and Nonparty 5

The Plaintiff asserts that the written consent of the establishment of the association prepared and submitted by Nonparty 4 was invalid since the date of preparation was indicated as “ September 4, 2017” and written consent of the establishment of the association prepared and submitted by Nonparty 5, but the supplementary intervenor used the form of the written consent to be amended on February 9, 2018, which was later.

In light of the following circumstances, it is reasonable to view each of the above written consents as valid in light of the following: (a) around February 2020; (b) around January 17, 2020, Nonparty 5 prepared each written confirmation stating that “the person himself/herself prepares a written consent for the establishment of an association based on his/her genuine will; (c) the date of the written consent appears to have been mistakenly stated; and (d) no other circumstance was discovered to deem that each written consent was written against Nonparty 4 and Nonparty 5’s will. Accordingly, the Plaintiff’s assertion on this part is rejected.

(3) On the assertion that the written consent to the establishment of the association submitted by Nonparty 6 is null and void: the number of consenters -1

(A) The Plaintiff asserted that “A written consent to the establishment of an association, prepared with respect to land owned by Nonparty 6 solely on February 7, 201, in the instant project zone (number 2 omitted), was used without permission for land owned by Nonparty 14 and Nonparty 6 (number 3 omitted). However, since Nonparty 15, who acquired ownership on March 20, 201, consented to the establishment of an association, the said written consent to the establishment of an association prepared by Nonparty 6 is invalid.”

(B) According to the evidence Nos. 35 and 46, the following facts can be acknowledged:

① On February 7, 2011, Nonparty 6 drafted a written consent to the establishment of the association (hereinafter “written consent to the establishment of the association, February 7, 2011”), and the ownership status of the said written consent to the establishment of the association is indicated as follows:

(Omission of List)

② On July 31, 2015, Nonparty 6 and Nonparty 14 (100/250 shares) shared by Nonparty 6, who acquired shares of 150/250 from July 31, 2015.

③ On March 21, 2018, Nonparty 6 transferred the ownership of land to Nonparty 15 within the instant business area (number 2 omitted) and Nonparty 15 prepared a written consent to establish an association on the said (number 2 omitted) land.

(C) Comprehensively taking into account the facts recognized as above and the purport of the entire pleadings, namely, ① Nonparty 6 was not a co-owner of the land located within the business area of this case at the time of the establishment of the association around February 7, 201, and ② Nonparty 6 prepared a written consent for the establishment of the association on February 7, 2011, stating the said land (number 3 omitted). ③ The portion of “land” stated in the written consent for the establishment of the association dated February 7, 2011 (number 3 omitted) appears to have been ex post facto stated on the land (number 3 omitted) after acquiring co-ownership shares on July 31, 2015; ④ Nonparty 6’s co-owner’s consent to the establishment of the association of this case (number 3 omitted), but Nonparty 2 omitted the said land’s consent to the establishment of the association; ⑤ Nonparty 2, who prepared a separate consent for the establishment of the association on the land (number 2015 omitted).

2) Regarding the number of the owners of land, etc. (i.e., division) recognized at the time of the instant authorization disposition

A) As to the additional assertion by two owners of state-owned and public land

According to Article 33(1)5 of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions, regarding the method of calculating the number of consenters of the owners of land, etc., the owner of land, etc. shall calculate the state-owned or public land as the owner of the land, etc., so it is reasonable to calculate the property management authority based on the property management authority, and according to the written evidence Nos. 15 and 16, the current state of state-owned or public land in the project area of this case and the property management authority are as listed below. Thus, the plaintiff's assertion on other premise is not acceptable (number No. 4 omitted).

The land category of the owner of the land contained in the main sentence shall be ○○-dong, Geum-dong, 314-23 Do, 315-24 Do, 398 Do, 516-1 Do, 549-1 Do, 549-1 Do, 107-4 Do, 107-1 Do, 561- Do, 905-1 Do, 905-1 Do, 905-23, 915-23, 00 Do, 917-2 Do, 917-2 Do, 920 Do, 920 Do, 920 Do, 217-27 Do, 27 Do, 427 Do, Busan Metropolitan City-5 Do, 107 Do, 207 Do, 727 dong-27 dong, Busan Metropolitan City (Do 927 Do Do 97 Do.

B) As to the assertion that nine persons whose whereabouts are unknown should be included in the number of owners of land, etc.

(1) Article 35(2) of the Urban Improvement Act provides that a committee for promotion of a redevelopment project shall obtain the consent of at least 3/4 of the owners of a plot of land, etc. and at least 1/2 of the land size. Meanwhile, Article 33(1)4 of the Enforcement Decree of the Urban Improvement Act provides that “If the address is not indicated as the owner at the time of entry, and is different from the current address, the number of the owners of a plot of land, etc. or the number of co-owners whose whereabouts are unknown (hereinafter referred to as “persons whose whereabouts are unknown”) shall be excluded.” This purport is to facilitate the progress of a redevelopment project by excluding the owners of a plot of land or buildings, for which it is difficult to verify the consent of the promotion committee for the establishment of a housing reconstruction project or the establishment of an association, etc. However, if the whereabouts are not confirmed solely on the ground that some of the owners of a plot of land or buildings are disposed of without being reflected in the name of the owner of a plot of land or a building, the whereabouts of which is unknown can be excluded from 20.

(2) In light of the above legal principles, in full view of the purport of Gap evidence Nos. 46, 49, Eul evidence No. 18 and Eul evidence No. 18 as to the instant case, the supplementary intervenor returned the land within the instant project area after having been issued a certified copy of each register and land cadastre to confirm the whereabouts of the land owner, and making efforts to confirm the existence and whereabouts of each owner, such as sending postal services several times to the land owner’s public address, the supplementary intervenor appears to be excluded from the number of owners of land, etc.

Non-party 1206, non-party 16, non-party 16, non-party 17, non-party 257, non-party 17, no resident registration number on the register of land and the land register (number 6 omitted), no resident registration number on the register of land and the land register (number 7 omitted) 306, non-party 7, non-party 4307, non-party 18, non-party 20 (number 8 omitted), non-party 544, non-party 21 (number 9 omitted), no resident registration number on the register of land and the land register (number 614, non-party 22 (number 10 omitted), no resident registration number on the register of land and the land register (number 11 omitted) no resident registration number on the register of land and the land register No. 8382,834,854, non-party 24, non-party 770 (number 11, omitted)

As to this, the Plaintiff asserted that Nonparty 7 and Nonparty 8 can easily find the inheritor through Nonparty 8’s transcript and the complete certificate of Nonparty 8’s registration (No. 50-1). However, the above complete registration certificate against Nonparty 8 is about ○○-dong (No. 14 omitted), which is not the land within the instant business area, and it cannot be deemed that the establishment promotion committee or the administrative agency is obligated to additionally investigate the evidence, such as a certified copy, a certified copy, and a certified copy of the real estate register outside the instant business area, in addition to the materials revealed through a certified copy, land cadastre, etc.

Therefore, it is legitimate that the defendant excludes the nine owners of land, etc. from the number of owners of land, so this part of the plaintiff's assertion cannot be accepted.

(3) As to the Intervenor’s assertion that eight additional persons should be included in the number of owners of land, etc.

(A) The supplementary intervenor asserts that even now the number of owners of land, etc. should be excluded from the number of owners of land, etc., since the supplementary intervenor sent several registered mail to the address entered in eight public registers as indicated below, but all mail was returned, and there has been no other way to confirm other addresses.

Evidence Nos. 1172, Nonparty 25 (Land Number 15 omitted), and Nos. 19, 2272, Nonparty 26 (Land Number 16 omitted), and Nos. 20, 3458, 27 (Land Number 17 omitted) and 4624, Nonparty 28 (Land Number 18 omitted), Dong-dong Nos. 22, 5714, Nonparty 29 (Land Number 19 omitted) and 23, Dong-dong Nos. 23, 6756, Nonparty 30 (Land Number 20 omitted) and Nos. 24, 783, 31 (Land Number 21 omitted) and 25, 284, 25, and 265, Dong-dong No. 29, 229 (Land Number 19 omitted).

(B) However, each land cadastre (the reference material submitted by the Plaintiff as of April 14, 2020) owned by the above eight persons is indicated only on the date of birth among resident registration numbers, but the fact that the back of resident registration numbers are not indicated on the land cadastre is merely for not disclosing the entire resident registration numbers to the outside, and the competent authority managing the land cadastre is aware of the back of resident registration numbers, and the defendant who is the competent authority managing each of the above land cadastre can easily be confirmed even on the back of the resident registration numbers of the above owners, so it cannot be identified as the owner of each of the above land as an unknown person. Accordingly, this part of the allegation by the Intervenor cannot be accepted.

3) Sub-decisions

At the time of the instant authorization disposition, the Defendant calculated the number of owners of land, etc. as 940 and the number of consenters 713 and determined that the consent rate for establishment of an association was about 75.85%. However, as seen earlier, if the consent rate is calculated again by excluding one person from the number of consenters, the number of owners of land, etc. shall be 940 and the number of consenters 712, and the consent rate shall be approximately 75.74%. Accordingly, the Plaintiff’s assertion that the instant authorization disposition was unlawful is not accepted, and the Intervenor’s assertion that the number of consenters should be added is no further determined.

(d) Whether a residents' general meeting exists concerning the change of a project implementation plan;

The reasoning for this part of the judgment of the court of first instance is the same as that of the second L of the judgment of the court of first instance (from 11th to 12th of the judgment of the court of first instance). Thus, this part of the judgment is cited in accordance with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

(e) Whether the duty to provide information, such as estimated contributions, is fulfilled;

1) Facts of recognition

The following facts are not disputed between the parties, or may be acknowledged by Gap evidence of 13 to 17, Eul evidence of 8 to 13, Eul evidence of 3, 5, 17 (including the number number; hereinafter the same shall apply), and the testimony of non-party 33 of this court witness of this court by integrating the purpose of the whole pleadings.

A) Selection of the Intervenor’s assistant management entity, etc.

① At the fourth promotion committee meeting held on March 30, 2006, the supplementary intervenor selected the management entity specialized in the rearrangement project and the management entity specialized in the rearrangement project as an architect office, respectively. As seen above, although the management entity specialized in the rearrangement project and the certified architect office were selected, some of the promoters asserted that the selection process of the management entity specialized in the rearrangement project and the certified architect office is problematic, and that the service company should be re-designated. On February 13, 2007, the supplementary intervenor held a meeting of the promotion committee meeting on February 13, 2007, and voting on the re-selected of the voting result was all dismissed.

② On April 15, 2007, the Intervenor convened a residents’ general meeting in order to obtain ratification of the resident’s general meeting regarding the selection of the service company. The above resident general meeting decided to select the Doe Engineering as a specialized management businessman and to delegate the conclusion of the contract to the promotion committee. Accordingly, the Intervenor entered into a special management service contract with the Gae Development around June 5, 2007. A subsidy intervenor convened a resident general meeting on December 7, 2007 to obtain ratification of the service contract entered into as above, but the resident general meeting was not held due to the lack of gender.

③ Around October 2009, Nonparty 34, who was the promoters, filed a lawsuit against the Intervenor seeking confirmation of invalidity of the resolution of the residents’ general meeting (the Busan District Court 2009Gahap22054) on April 15, 2007. On December 10, 2010, the above court rendered a judgment dismissing Nonparty 34’s claim. Nonparty 34 filed an appeal (the Busan High Court 201Na399) and the final appeal (Supreme Court 2012Da41908) against the said judgment. However, the above judgment became final and conclusive on July 2012, 2012 by dismissing both the above appeal and the final appeal.

④ On October 8, 2015, a general meeting of residents was held again, and around June 5, 2007, the selection of a specialized management businessman for rearrangement projects and the confirmation of contracts (Article 7 items) were passed.

B)Operation of the estimated contributions-related website of Busan Metropolitan City;

① Following the amendment by Act No. 11293 on February 1, 2012, Article 112 of the Urban Improvement Act (amended by Presidential Decree No. 2443, Mar. 23, 2013) provides that “The Promotion Committee shall provide the owners of lands, etc. with the estimated information prescribed by Presidential Decree, such as contributions, before obtaining the consent necessary for establishing an association.” The said provision was enforced from February 2, 2013. Article 27-2 of the former Enforcement Decree of the Urban Improvement Act (amended by Presidential Decree No. 24443, Mar. 23, 2013) provides that “Information prescribed by Presidential Decree” refers to the information prescribed by municipal ordinance of a City/Do in relation to the estimate and calculation of contributions by owners of lands, etc. under subparagraph 1 and the basis for calculation of calculation of estimated contributions, and calculation of presumed contributions.”

② Following delegation by the Enforcement Decree, the former Busan Metropolitan City Ordinance on the Improvement of Urban Areas and Residential Environments (amended by Ordinance No. 5462, Nov. 2, 2016; hereinafter “instant Ordinance”) was amended by Ordinance No. 5061, Sept. 17, 2014 pursuant to the said Enforcement Decree, Article 46 of the said Ordinance provides that “The Mayor may establish an information system through which the promotion committee or the association can calculate the outlined project cost, etc.” (paragraph (1)). If the chairperson of the promotion committee or the partnership’s executives intend to obtain consent to the owners of land, etc. regarding the project cost from the establishment of the first management and disposal plan to the date of the first establishment of the management and disposal plan from the establishment of the association, they shall enter necessary data, such as the improvement plan, in the information system under paragraph (1), and allow the owners of land, etc. to verify the outlined contribution, etc. (2).

③ On October 20, 2014, the Defendant sent an official letter to Nonparty 33 (from January 6, 2006 to January 2018, 2018) who was the president of the Promotion Committee, requested the Plaintiff to attend the “Unscheduledd Asset Appraisal and Report Meeting for Rearrangement Project Charges,” which was conducted by Busan Metropolitan City in relation to estimated contributions.

④ Pursuant to the instant Ordinance, the Busan Metropolitan City had operated the Busan Metropolitan City Data System for Estimated Contributions for Rearrangement Projects (hereinafter “instant website”) from January 17, 2015, pursuant to the instant Ordinance.

C) The defendant's cooperation letter, etc. related to the operation of the homepage of this case

① On January 28, 2015, the Defendant sent to the supplementary intervenor a letter of “request for cooperation in building the outlines of business, such as the construction plan for the house redevelopment project in Blue2” with the following contents:

In the head of the Dong-si in Busan City, which is included in the main text, established the "Presumption Contribution Information System" to provide information that can determine the propriety of the project by allowing the landowner to analyze the feasibility of the project at the stage of the promotion committee at the time of the implementation of the urban improvement project and estimate the estimated resident contributions. However, as the construction plan (the plan) used for the evaluation of the last 7 to 8 years has changed rapidly, there is a rapid change in the social circumstances, so more confusion is anticipated at the time of disclosure of the information. In this regard, in order to efficiently manage and provide reliable information, the Busan Metropolitan City Improvement Project Estimate Information System is constructed in compliance with the reality, such as the floor area ratio and the sale plan (the construction designer) and submit the result to the Committee by February 6, 2015.

② On February 4, 2015, the Intervenor sent to the Defendant, “Around February 4, 2015, because the over-building plan reflects the market situation at the time, it is true that it is not practicable in terms of the scale of the house and the selling price, etc., compared with the present situation. As such, even though the Intervenor requested the designer’s side, it is not possible for the designer to prepare a new construction plan in the absence of the payment of the down payment and the design service cost, and the reality of the meeting is also not a situation in which the service order can be separately ordered. Therefore, the Intervenor later sent to the Defendant, “The construction plan is to be prepared in the event of normalization.”

③ On April 10, 2015, the Defendant sent to the Intervenor and the Residents' Self-Governing Center a letter of cooperation with the details of the schedule to allow the residents to read information, including estimated contributions, through the instant website, by actively promoting and cooperatinging to allow them to read information.

④ After June 18, 2015, the Defendant, at least 65 years of age in the instant project zone, had partners aged 65 and older than the instant project under Article 46 of the Busan Metropolitan City Ordinance on the Improvement of Urban Areas and Residential Environments (Building, etc. of Information System under Public Management) make it possible for them to analyze the feasibility of the project at the beginning promotion committee at the time of implementing an urban improvement project in Busan Metropolitan City to provide information capable of assessing the appropriateness of the project, and operated the estimated contributions on the city improvement project at the end of Busan Metropolitan City. The assumed contributions that are disclosed at a time are generally estimated by the summary appraisal method, and are not determined as reference materials provided to satisfy the residents' right to know at the early stage of the project, and are expected to be changed at the later time of regular appraisal and assessment. The assumed contributions that are disclosed at a time to the aged aged 65 or older who is weak to access the information will be used as reference materials for the decision of the owners of land, etc. at the early stage of the improvement project by mail.

2) Determination (Non-performance of the Intervenor’s duty to provide predicted contributions)

A) Upon amendment by Act No. 11293, Feb. 1, 2012, Article 16 of the Act provides that “The Promotion Committee shall provide the owners of land, etc. with the estimated contributions and other information prescribed by Presidential Decree, including estimated contributions, before obtaining the consent necessary for establishing an association.” The aforementioned provision was enacted from February 2, 2013. Article 27-2 of the former Enforcement Decree of the Act (amended by Presidential Decree No. 2443, Mar. 23, 2013) provides that “In principle, the Ministry of Land, Infrastructure and Transport shall provide the owners of land, etc. with the information prescribed by Presidential Decree, such as estimated contributions, before obtaining the consent necessary for establishing an association.” Therefore, it is difficult to expect that the standards for consent to establishing an association under Article 16(6) of the Act should be more accurate than that of the owners of land, etc., to provide the association’s right to consent to the establishment of an association, such as the estimated amount of contributions, and information prescribed by municipal ordinance regarding the establishment of an association.

B) Meanwhile, in an appeal suit seeking the revocation of an administrative disposition, there is a burden of proof as to whether the pertinent disposition is lawful (see Supreme Court Decision 2006Du12937, Jan. 12, 2007, etc.) to the defendant, who is the disposition agency asserting the relevant disposition.

C) On February 2, 2013, when this Act enters into force, the Defendant and the Intervenor provided the owners of land, etc. with estimated contributions and other information prior to obtaining consent of the establishment of the association. Under the premise that the instant authorization disposition was lawful and specific, the Defendant and the Intervenor asserted that the amendment was made at the time of the amendment of the said Act and subordinate statutes, “A new appraisal corporation and its branch office (hereinafter “new appraisal corporation”) of Busan (hereinafter “instant appraisal services contract”) in relation to estimated contributions amounting to KRW 10,00,000,000,000 for service charges of KRW 10,000,000,000,000,000 from January 2, 2013, 2013, it is difficult to recognize the Intervenor’s assertion that it was in violation of the Act and subordinate statutes, including the 6th, written statement of each owner of land, etc.’s estimated contributions and the 10th,000,0000,000.

D) Rather, in light of the relevant Acts and subordinate statutes and the purport of imposing the duty to provide predicted contributions, etc., the evidence revealed as seen earlier and the overall purport of the statements and arguments stated in Gap’s evidence Nos. 15 through 18, 32 through 37 through 40, etc., the supplementary participant cannot be deemed to have provided the owners of lands, etc. with information, such as estimated contributions, prescribed in the said Acts and subordinate statutes, before obtaining consent necessary for the establishment of the association after the enforcement of Article 16(6) of the former Act. It is difficult to view that the supplementary participant fulfilled the duty to provide information, such as the presumed contributions, solely on the information posted on the website of this case by Busan Metropolitan City after January 2, 2015.

(1) The question about the authenticity of the instant appraisal service contract and the statement of individual estimated contributions

① Around January 2013, the appraisal service contract of this case was written between Ghana and a new appraisal corporation selected as a specialized management businessman of a rearrangement project. Around 2013, promoters, including Nonparty 33, Vice-Chairperson 35, Non-Party 36, and Non-Party 37, were prepared and submitted a confirmation statement that there was no fact that the appraisal service contract of this case was prepared (Evidence 15). Nevertheless, only the defendant and the supplementary intervenor asserted that the written appraisal service contract of this case was prepared, they did not submit an appraisal statement or service report, etc. according to the appraisal service contract of this case. The individual estimate charge statement of this case submitted by the supplementary intervenor (Evidence 4-2, B, and 10 and 16) is not written in the estimate of the appraised price for each land owner of land, etc., the estimated financial plan (amount of revenue, estimated total amount of revenue, estimated total amount of revenue, proportional ratio), the estimate of the estimated total amount of revenue from each association member (the estimate of the previous appraisal service plan).

② Around June 5, 2007, an intervenor entered into a contract for specialized management of rearrangement projects with AB, and convened a residents’ general meeting on December 7, 2007 to obtain ratification of the said contract, but due to lack of gender, holding a residents’ general meeting was no longer possible due to lack of gender. After the dispute was brought about by July 2012 regarding the selection, etc. of a management entity specialized in rearrangement projects inside the Intervenors. At around October 8, 2015, the Intervenor, after the settlement of the dispute, held a residents’ general meeting to “the selection of a management entity specialized in rearrangement projects and the ratification of the contract (the agenda item 7)” was resolved. From around 2012 to the end of 2015, the office of the promotion committee appears to have entered into a new contract for specialized management of rearrangement projects, including the designation of a management entity specialized in rearrangement projects, and it is difficult for Nonparty 2 and Nonparty 3 to conclude a new contract for appraisal and assessment services with the promotion committee at around 2013.

③ Also, even if the Defendant sent to the Intervenor around January 28, 2015, the construction plan used for the assessment of assets on the homepage of this case was extremely low in reality and at the time of disclosure of information, the more confusion is anticipated. As to the public notice stating that the Promotion Committee shall obtain cooperation from service companies (construction designer) by region and submit the construction plan, such as floor area ratio and unit size, to February 6, 2015 after completing construction in accordance with the reality, and submission of the construction plan, such as floor area ratio and unit size, to the Defendant by February 6, 2015, the supplementary intervenor was not realized when compared to the present market situation at the time. In light of the fact that the supplementary intervenor’s construction plan reflects the market situation at the time of the time, and the party’s request based on it was also difficult for the designer to prepare the new construction plan or new appraisal and assessment service contract at the time of the request of the 2nd appraisal and assessment service contractor, it cannot be deemed that the 1nd appraisal and assessment service contract was not prepared.

④ According to the statements and images of evidence Nos. 8 and 9, at the time, the committee of promoters stated in the standard form for establishing the association in addition to obtaining consent to establish the association from the owners of land, etc. as follows, and affixed the unmanned seal of the owners of land, etc. (No. 9 and No. 8) on the next side, the evidence No. 9 and No. 8 stated that the information under Article 35 (8) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents is recognized

A person shall be appointed.

그러나 앞서 본 사정들과 조합설립에 동의할 때 표준동의서에 기재된 내용만으로는 정비사업 참여에 따른 개략적인 비용분담액을 예측하는 데에 어려움이 있어 토지등소유자가 정비사업으로 부담하게 될 비용을 보다 정확하게 예측할 수 있도록 하기 위하여 도시정비법령에서 추진위원회에게 조합설립동의를 받기 전 추정분담금 등 정보제공의무가 있다고 규정하고 있음에도 보조참가인이 사용한 위 조합설립표준동의서에는 ‘신축건축물의 설계개요’와 ‘공사비 등 정비사업에 드는 비용’이 기재되고 ‘분양대상자별 분담금 추산방법(예시)으로 ’분양대상자별 분담금 추산액 = 분양예정인 대지 및 건축물의 추산액 - (분양대상자별 종전의 토지 및 건축물의 가격 × 비례율, 비례율 = (사업완료 후의 대지 및 건축물의 총 수입 - 총사업비)/종전의 토지 및 건축물의 총 가액‘이라고 기재되어 있을 뿐 토지등소유자들의 종전 자산의 가치 산정 근거, 방법이나 추정가액 등 개별 추정분담금을 알 수 있는 내용은 전혀 기재되어 있지 않은 점, 추진위원회에 여러 가지 문제를 제기해왔던 선정자 소외 34, 소외 38이 2015. 2. 6.경 피고에게 위와 같은 동의서 부기 등과 관련하여 민원을 제기하였고 이에 대한 회신으로 피고가 2015. 2. 17. ‘추진위원회가 동의서를 받고 있는 사항은 도시 및 주거환경정비법 제16조 제6항 에 따라 조합설립에 필요한 동의를 받기 전 추정분담금 등에 대한 정보를 토지등소유자에게 제공하도록 되어 있는 규정에 따른 사항으로서 보조참가인이 자체적으로 제공하고 있는 것으로 판단된다’고 회신하였으나, 앞서 본 바와 같이 당시 추진위원회는 2012년경부터 2015년 말경까지 자금 사정이 매우 어려워 사무실이 사실상 폐쇄상태에 있었고 피고가 2015. 1. 28.경 보조참가인에게 이 사건 홈페이지에 게시할 추정분담금 등 산출을 위한 현실에 맞는 건축계획(안) 등 자료를 제출해 줄 것을 요청하였으나, 추진위원회는 2015. 2. 4.경 피고에게 ‘자금난 등의 어려움으로 새로운 건축계획(안)을 마련할 수 있는 상황이 되지 못하므로, 추후 새로운 건축계획(안)을 새로이 마련할 것이다.’라는 답변만을 하였을 뿐 이 사건 감정평가용역계약서나 그 결과물이라는 이 사건 개별추정분담금 내역서에 관하여 언급하거나 자료를 제출하지 않았으며, 당시 추진위원회 위원장 직무를 수행하였던 소외 33도 이 법원에 증인으로 출석하여 자신이 위원장으로 있던 2018. 1.경까지는 인적ㆍ물적 자원의 부족으로 토지등소유자들에게 추정분담금 등 정보를 제공하지 않았다고 진술한 점 등에 비추어 보면, 토지등소유자들이 조합설립동의서에 부기된 ‘ 도시 및 주거환경정비법 제16조 제6항 에 따른 정보를 제공받았음’ 옆에 날인한 사실만으로는 조합설립동의를 받기 전에 보조참가인이 추정분담금 등 정보를 제공한 것으로 보기 어렵다[원고는 소외 39, 소외 40, 소외 41 등의 최초 조합설립동의서 작성당시 날인된 무인과 위 부기 사항 옆의 무인이 상이하다는 문서감정서(갑 제32호증)를 제출하였고, 위 소외 39, 소외 40은 보조참가인의 현 조합장과 전 조합장을 상대로 사문서위조 등 혐의로 경찰에 고소하였다고 주장한다(갑 제34호증). 이에 대하여 보조참가인은 ’원고의 사감정 결과를 그대로 신뢰할 수도 없고, 백번 양보하여 일부 지장이 일치하지 않는다고 하여 이 사건 추진위원회가 추정분담금 정보를 제공하지 않았음이 입증되는 것도 아닙니다.‘라고만 주장하였다(2019. 11. 6.자 준비서면)].

(2) The nature of the information posted on the homepage of the instant case

① On January 17, 2015, Busan Metropolitan City was newly established on September 17, 2014, pursuant to Article 46(1) of the instant Ordinance, operated the instant website, which is an information system in which the promotion committee or the association can calculate the outlined project cost, etc. (Article 46(1)). According to Article 46(2) and (3) of the instant Ordinance, the chairperson of the promotion committee was obligated to enter the necessary data, such as the improvement plan, in conformity with the project cost to obtain consent from the owners of land, etc., so that the chairperson of the promotion committee can verify the outlined project cost, etc. (Article 46(1) of the instant Ordinance. However, at the time of October 20, 2014, Nonparty 33, the chairperson of the promotion committee, at the time of Busan Metropolitan City, did not know of the provisions on the commencement of the pre-determined asset appraisal service for rearrangement projects implemented by the Busan Metropolitan City, but did not submit any opinion, such as the expense at the time of the promotion committee, etc.

② In light of the purport of the Act and subordinate statutes stipulating the duty to provide information, such as estimated contributions, before obtaining consent to establish an association, to ensure that the owners of land, etc. can predict the cost to be borne by the rearrangement project more accurately, and to reduce ex post facto disputes regarding the establishment of an association, the time when the promotion committee demands consent to establish an association has not been designated as the pre-establishment stage, and the accurate construction costs cannot be calculated, even if the project implementation plan was not finalized, the cost to be borne by the owners of land, etc. should be estimated within an objective and reasonable scope consistent with the reality. However, as seen earlier, the individual estimate contributions, etc. of the owners of land, etc. in the project area of this case posted on the homepage of this case were written as reference materials for the determination of propriety of the project and the decision-making process from 00 to 2008,000, which are the initial stage of the rearrangement project, and thus, it is difficult to view that the participants of land, etc. were entitled to an estimate of 200,000, supra.

③ On April 10, 2015, the Defendant posted information, such as estimated contributions, through the instant website at Busan Metropolitan City: (a) on or around April 10, 2015, the Intervenor and the Residents' Self-Governing Center sent an official message with the contents of the plan to disclose relevant data, such as estimated contributions, to allow the residents to access the information; (b) around June 18, 2015, the estimated contributions were sent to the members aged 65 years or older in the instant project area by mail; (c) on or around June 18, 2015, it is merely an internal co-operation or notification to some owners of land, etc. of the instant land. Article 46(2) of the instant Ordinance provides that “The Chairperson of the Promotion Committee shall enter necessary data, such as the improvement plan, and the outline contributions, etc. shall be confirmed by the owners of land, etc.; and (d) the owners of land, etc., of the instant land, etc., may directly access the instant website and have access to the instant public announcement on the website, etc.

④ Nonparty 3, who continued to perform the duties of the Chairperson of the Promotion Committee from around 2006 to January 2018, was present at this court as a witness, and was unaware of the fact that the law was amended until the Busan City Education was present at around October 23, 2014, and was not aware of the importance of the duty to provide information, such as estimated contributions before the establishment of the association. The office of the Promotion Committee was in a situation where it is inevitable for the Promotion Committee to close its door from around 2010 to the date of the above education, and it was not a situation where the office of the Promotion Committee to conduct the duties of the Promotion Committee to close its door, and it was not a situation where the office is in fact closed, and it was not a circumstance for calculating estimated contributions. From January 2018, Nonparty 33 did not provide information, such as estimated contributions, due to the lack of human and material resources, and did not inform the owner of land, etc. of the method of posting and verifying the information on the homepage of this case.

⑤ The main text of Article 3 of the former Busan Metropolitan City Ordinance on the Improvement of Urban Areas and Residential Environments (wholly amended by Presidential Decree No. 5462, Jul. 11, 2018) provides that “The Chairperson of the Promotion Committee (in cases of obtaining authorization for the establishment of an association, partnership’s executives) shall enter necessary data, such as the improvement plan (including any changes in the rearrangement plan) and project cost, in the integrated web-site of the improvement project and make it possible for owners of land, etc. to verify the estimated contributions.” However, the proviso provides that “The case where the head of a Si/Gun/Gu can confirm the estimated contributions by entering data and verifying the estimated contributions.” However, the information, such as the estimated contributions, etc. posted on the web-site of this case after November 2, 2016, based on the construction plan of 2007 through 208 [the same type of reference materials calculated on the construction plan of 2007 to 208, 2017.”

3) Sub-decisions

Therefore, the authorization of this case under the premise that the supplementary intervenor fulfilled his duty to provide information, such as estimated contributions, before obtaining the consent of the establishment of the association from the owners of the land, should be revoked.

3. Conclusion

If so, the plaintiff's claim shall be accepted as reasonable. Since the judgment of the court of first instance is unfair with different conclusions, it is so decided as per Disposition by accepting the plaintiff's appeal and cancelling it.

(attached Form omitted)

Judges Park Jong-hun (Presiding Judge) (Presiding Judge)

Article 12-2(1) of the former Ordinance on the Improvement of Urban Areas and Residential Environments (wholly amended by Presidential Decree No. 5788, Jul. 11, 2018) (wholly amended by Presidential Decree No. 5462, Nov. 2, 2016) provides that “Information prescribed by municipal ordinance of a City/Do in relation to the calculation of other estimated charges” under subparagraph 2 of Article 27-2 of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions shall refer to the outlines of business ( Subparagraph 1), the estimated value of the previous assets by the owner of a plot of land, etc. ( Subparagraph 2), the estimated value of the revenues from sale in lots of buildings ( Subparagraph 3), and the estimated value

2) Article 12-2(2) and (3) of the former Ordinance on the Improvement of Urban Areas and Residential Environments in Busan Metropolitan City (wholly amended by Presidential Decree No. 5462, Nov. 2, 2016) (wholly amended by Presidential Decree No. 5788, Jul. 11, 2018) provides that “The Mayor shall build an information system by which estimated charges, etc. can be calculated. The chairperson of the promotion committee shall enter necessary data, such as the improvement plan (including any changes in the maintenance plan) and project costs, into the integrated website of the improvement project and ensure that owners of land, etc. can confirm the estimated charges, etc.: Provided, That the foregoing shall not apply where the head of the Si/Gun/Gu