Where a new management and disposal plan is formulated to substantially alter the main parts of the management and disposal plan and authorization is obtained from the head of the Si/Gun, whether the first management and disposal plan becomes invalid (affirmative in principle)

Article 48 (1) 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)

Supreme Court en banc Decision 2011Du6400 Decided March 22, 2012 (Gong2012Sang, 682)

See Attached List of Plaintiffs (Law Firm Rzlelele, Attorneys Kim Jae-spon et al., Counsel for the plaintiff-appellant)

Overcheon-Gongju Housing Reconstruction and Improvement Project Association (Attorney Hong-ju et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2017Nu37453 decided September 21, 2017

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

Judgment ex officio is made.

1. According to Article 48(1) 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 Act”), in cases where a project implementer intends to modify, suspend, or abolish a management and disposal plan as well as to revise, suspend, or abolish a plan, the project implementer shall obtain authorization from the head of a Si/Gun including the design for parcelling-out, address and name of a person subject to parcelling-out, estimated amount of a site or structure scheduled for parcelling-out by a person subject to parcelling-out, details of the previous land or structure and the date of announcement of authorization for project implementation based on the current status of the application for parcelling-out; the estimated amount and timing of the rearrangement project cost; the details of rights other than the ownership of the previous land or structure; the details and appraised amount of rights of tenants other than the ownership of the person subject to parcelling-out; and other rights related to rearrangement projects shall be reported to the head of a Si

In light of the contents, form, purport, etc. of the provisions related to the former Act on the Improvement of Urban Areas, where a new management and disposal plan is formulated to substantially modify the main parts of the original management and disposal plan, unlike the case of amending the original management and disposal plan, and the initial management and disposal plan is approved by the head of the Si/Gun, the original management and disposal plan shall be deemed null and void (see Supreme Court Decisions 2010Du19799, Feb. 10, 201; 201Du6400, Mar. 22, 2012).

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) In order to supplement the defects of the instant management and disposition plan, on September 10, 2017, the Defendant, at the general meeting of partners on September 10, 2017, deemed that the same members of the association, who are the owners of the instant shopping district, have made a “investment” among the previous assets of 1,294 members, the share of the site used for reconstruction of the instant apartment among the previous assets of 1,294 members, and made a resolution to revise the management and disposition plan of this case by re-calculated the development gains, the proportional rate, the amount of rights, the amount of contributions of the association members, and

(2) In comparison with the instant management and disposition plan, the development gains of the apartment project portion were reduced to 7,704,960,000 won, while the development gains of the apartment project portion were increased to the same amount, the proportional ratio of the apartment project portion was reduced to 116.77% and 115.89%, while the proportional ratio of the apartment project portion was reduced to 118.37% and 146.58%, the proportion ratio of the apartment project portion was increased to 140.44% and the free share ratio of the apartment project portion was reduced to 139.39%, and the free share ratio of the apartment project portion was increased from 139.39% to 286.81%.

(3) After the lower court rendered a judgment dismissing an appeal to the effect that the instant management and disposition plan was unlawful, it rendered a disposition to revise the revised management and disposition plan newly formulated on November 14, 2017 at the Defendant’s request.

(4) The Defendant asserted that the interest in dispute over the instant management and disposition plan was extinguished due to the modification of the above management and disposition plan, and submitted relevant data to the Supreme Court.

3. Examining these factual relations in accordance with the legal principles as seen earlier, if the Defendant modified the management and disposition plan following the resolution of the general meeting and obtained authorization for modification from the excessive market, and if the modified management and disposition plan constitutes a new management and disposition plan since it actually changes the main parts of the management and disposition plan of this case as alleged by the Defendant, barring any special circumstance, the instant management and disposition plan of this case is merely a previous legal relationship that has already lost its validity, and there is no legal interest to seek nullification or revocation thereof, and accordingly, the instant

Therefore, as alleged by the defendant, it is necessary to review whether the management and disposal plan of this case has no legal interest in dispute over its validity as it loses its validity due to the modified disposition after the closing of argument in the court below.

4. Therefore, without examining the grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: Omitted

Justices Min You-sook (Presiding Justice)