Plaintiff (Attorney Kim Dong-jin, Counsel for the plaintiff-appellant)

Head of Dongdaemun-gu Seoul Metropolitan Government

The Promotion Committee for the Establishment of the Housing Redevelopment and Improvement Project Association (Law Firm Squa, Attorneys Kim Jong-tae et al., Counsel for defendant-appellant)

may 23, 2006

Seoul Administrative Court Decision 2004Guhap34858 delivered on October 6, 2005

1. Revocation of a judgment of the first instance;

2. The instant lawsuit shall be dismissed.

3. The total cost of the lawsuit shall be borne by the plaintiff (appointed party).

The judgment of the first instance shall be revoked. The defendant revoked the approval disposition made by the third intervenor on June 23, 2004 against the promotion committee for the establishment of the Housing Redevelopment and Improvement Project Cooperatives (hereinafter referred to as the "Creditor's promotion committee").

1. Basic facts

A. On January 28, 2003, the Seoul Special Metropolitan City established a basic housing redevelopment plan in accordance with the former Urban Redevelopment Act in 1999 and ordered the head of each Gu/Si office of Seoul Special Metropolitan City to identify the area subject to the above basic plan and to conduct a basic investigation in order to revise the above basic plan in 2003. On February 12, 2003, the Defendant established a basic plan for the improvement of the basic plan and instructed each Dong office to conduct a self-inspection and inform the residents of the plan.

B. On March 14, 2003, Nonparty 1, the chairperson of the committee of promoters, submitted to the Defendant a public notice requesting the Defendant to reflect the 76 Dong-dong, Dongdaemun-gu and 148 Dong-dong, Dongdaemun-gu (hereinafter “instant project site”) in the basic plan, along with a survey report on the area subject to housing redevelopment. On March 21, 2003, the Defendant submitted a basic survey report for the re-establishment of the basic plan, including the above project site.

C. From December 20, 2003 to January 3, 2004, Seoul Special Metropolitan City (hereinafter “Seoul Special Metropolitan City”) conducted a public inspection of the basic plan for residents, and confirmed the basic plan for improvement on June 23, 2004 through the procedure of deliberation by the Seoul Special Metropolitan City Urban Planning Committee.

D. On the other hand, on December 30, 2003, Nonparty 1 applied for the approval of the Intervenor's promotion committee to the Defendant, and the Plaintiff (appointed party; hereinafter referred to as the "Plaintiff") applied for the approval on (tentative name) on the 31st of the same month, the 29-1 District Association Establishment Promotion Committee (hereinafter referred to as the "Liture Promotion Committee").

E. At the time of the application for each of the above applications filed by Nonparty 1 and the Plaintiff, the instant project object was an area where the redevelopment master plan under the former Urban Redevelopment Act was not established, and the Seoul Special Metropolitan City had established the master plan at that time. As such, the Defendant decided on January 29, 2004 to withhold the treatment of each of the above applications until the above master plan is finalized, and notified the parties.

F. On June 23, 2004, as the Seoul Special Metropolitan City's basic plan for the maintenance including the instant project site became final and conclusive, the defendant reviewed the above application for approval and rendered an approval disposition against the intervenor's application for approval (hereinafter "the instant disposition"), and the plaintiff's application for approval of the promotion committee for objection to the plaintiff's application for approval was rejected on the ground that the legal requirements for consent were not significantly satisfied.

[Reasons for Recognition] Facts without dispute, Gap evidence 5, Gap evidence 6-1, 2, 3, Gap evidence 7-1, 2, Eul evidence 1 to 12, and the purport of the whole pleadings

2. The plaintiff's assertion

The plaintiff and the designated parties sought revocation of the disposition of this case against the defendant on the ground that the disposition of this case was erroneous as below in the status that they are residents who are the owners of land, buildings, etc. within the business area of this case.

A. Article 9 of the Addenda to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the "Urban Areas and Dwelling Conditions for Residents") (amended by Act No. 6852, Dec. 30, 2002; hereinafter referred to as the "Supplementary to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents") provides that "if a promotion committee organized before June 30, 2003 obtains approval by no later than December 31, 2003 with the consent of not less than 1/2 of the owners of lands, etc., the promotion committee shall be deemed a promotion committee under this Act." In relation to the application of the above transitional measures, 3-1 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the "Urban Maintenance and Improvement Act") provides that "the consent submitted at the time of filing an application for approval of the promotion committee with the consent of the promotion committee prior to the enforcement date of the Act on the Establishment of Cooperatives may be substituted."

B. In light of the purport of Article 13(1) and (2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions, the above Act does not stipulate, but the promotion committee including the chairperson of the promotion committee should be the owner of land, etc. The residents' general meeting held on May 24, 2003, which was held by the intervenor promotion committee, was convened by Nonparty 1 as the promotion committee chairperson. Since Nonparty 1 was not only at the time of the above general meeting call, but also at the time of the general meeting, the above residents' general meeting does not have the validity, and the minutes submitted at the time of application for approval by the promotion committee cannot be deemed as "documents proving the appointment of members" under Article 3-2 of the Act on the Establishment of the promotion committee for the maintenance and improvement of Urban Areas and Dwelling Conditions. The intervenor included 26 persons without ownership of the land subject to the implementation of the project in this case among the members of the promotion committee, and the defendant examined the registration of ownership transfer as to the land ownership transfer as to the non-party 3.27. 20.

C. The owners of land, etc. of the instant land subject to the project in the process of formulating the Master Plan for Urban and Residential Environment Rearrangement has decreased by approximately 40 persons due to boundary changes, and thus, the number of owners of land, etc. was 1,004 in the written approval of the Intervenor Promotion Committee. Meanwhile, the written application for approval by the Intervenor Promotion Committee was written with the size of 89,513.5m in the area of the project subject to the project, and the number of consenters was 465, respectively, but the written approval issued by the Defendant issued by the Defendant was insufficient to investigate the written application for approval, including the following: the size of the project subject area is 94,74.1m in the area of the project subject to the project, and the number of consenters is 554.

D. Article 9 of the Addenda to the Urban Redevelopment Act provides that the existing promotion committee shall meet the requirements for consent under Article 13(2) of this Rule, and Article 13(2) of this Rule provides that "at least five members, including the chairperson, with the consent of at least one half of the owners of land, etc., shall be organized, and the methods and procedures prescribed by the Ordinance of the Ministry of Construction and Transportation shall be followed." Since there are many differences in the requirements for consent under the former Urban Redevelopment Act and the contents of the newly enacted Urban Redevelopment Act, as the requirements for approval of the promotion committee under Article 9 of the Addenda to the above Act, the consent to establish an association, namely, the consent to establish an association under Article 13(2), the chairperson of the promotion committee of the association, and new forms of written consent meeting the requirements for the consent on the composition of executive officers shall have been requisitioned from at least 1/2 of the owners of land, etc., and the consent on the establishment of the association shall not be included in the old written consent.

E. The Intervenor obtained a written consent (hereinafter “new consent”) with only 225 copies of the new consent form, which was made in the form of the consent form publicly notified by the Minister of Construction and Transportation, in which all the executives and all the members of the Promotion Committee should be entered daily, by omitting both the chairperson and the officer name group itself, and omitting all the composition of the Promotion Committee in a separate form. The Intervenor drafted 225 new consent form, which was made in the form of 25 form, which was made without intentionally indicating the list of all the promoters, such as the chairperson and the executive officers who rejected the owners of land, etc. to the owners of land, etc., and did not intentionally indicate the list of all the promoters, including the chairperson and the executive officers, etc., which was made in the form of the new consent form publicly notified by the Minister of Construction and Transportation, and modified the new consent form with the total number of 25 written consent to put them into the above Chapter 2. Therefore, the new consent form does not have any effect as a legitimate consent form.

F. Among the previous written consent on which the instant disposition was based, there were 11 cases among those made between July 1, 2003 and December 31, 2003. Among the new written consent, 39 cases include those made after December 30, 2003 by the Intervenor submitted the written application for approval for the establishment of the promotion committee. Thus, the above 50 cases were excluded from the number of consenters, but the Defendant included them in the number of consenters.

G. It is apparent that the existing promotion committee, which had been constituted and operated before June 30, 2003 with the “documents proving the selection of members” under Article 6 subparag. 4 of the Enforcement Rule of the Urban Improvement Act, should attach the minutes of the resident general meeting to the application for approval. However, in addition to the minutes of the resident general meeting, in addition to the minutes of the resident general meeting, the “written consent of the owners of land, etc.” under Article 6 subparag. 2 of the Enforcement Rule was required to be submitted together with the “written consent of the owners of land, etc.”

H. Where the number of promoters (23) applied for the approval of the promotion committee in the state of 1/10 of the owners of land, etc., the participant should obtain the consent of the majority of the owners of land, etc. to increase the promotion committee. However, in order to omit the consent procedure of the owners of land, etc. to 7 promoters additionally increased other than 23 promoters elected according to the resolution of the resident general meeting without validity, the participant voluntarily prepared the list of the promotion committee members in Chapter 2 and added them to the new consent. The new consent list of the promotion committee presented to the owners of land, etc. was not existed from the beginning. Even if the participant shows the list to the owners of land, etc., even if the promotion committee displayed it to the domestic owners of land, etc., the contents presented are different from the list from 2 to 5 pages supplemented in the new consent form, and thus, they were supplemented without the title of the consent form.

3. First, we examine the legitimacy of the instant lawsuit.

A. In a case where a third party, who is not the other party to an administrative disposition, is in violation of the legal interest protected by the law due to the administrative disposition, a legal qualification for a decision of the propriety of the administrative action shall be filed to seek the cancellation or modification of the disposition. However, the legal interest here refers to a case where there is a direct and specific interest protected by the law based on the relevant disposition, and the case where it is merely an indirect, factual,

B. Article 13(2) of the former Urban Redevelopment Act (repealed by Act No. 6852 of Dec. 30, 2002) did not stipulate the redevelopment association establishment promotion committee. However, as residents voluntarily organize and operate the redevelopment association to authorize the establishment of the redevelopment association, there were various corruptions related to the selection of the city project by establishing a committee of promoters, the committee of promoters is established under the Urban Improvement Act newly enacted to clarify the organization of the committee of promoters and the scope of their duties and prevent difficulties and resolve conflicts between residents at the early stage of the project, and to obtain approval from the head of Si/Gun. The former Urban Improvement Act (amended by Act No. 7392 of Mar. 18, 2005); according to Article 15(1) of the Urban Improvement Act; Article 6 of the Enforcement Rule of the same Act, where the redevelopment association is to be established, the committee of promoters and the head of Si/Gun with the consent of at least 1/2 of the landowners of the land, etc., and submit a list of the landowners and its members, including the chairperson and auditors.

C. However, in the case of this case, the plaintiff and the designated parties are dissatisfied with the illegality of the disposition of this case as residents who are the owners of land, buildings, etc. within the project area of this case (hereinafter referred to as "owners of land, etc."). Since the intervenor promotion committee of this case was the participant promotion committee, the plaintiff and the designated parties did not directly receive the disposition of this case. The disposition of this case is an administrative disposition that is beneficial to the participant promotion committee, and the participant promotion committee obtains the approval of establishment with the consent of more than 4/5 of owners of land, etc. within the project area of this case under Article 16 (1) of the Urban Improvement Act, the plaintiff and the designated parties can also be deemed as a disposition beneficial to the disposition of this case. Even if the plaintiff and the designated parties did not consent to the organization of the participant promotion committee of this case, even if they did not consent to the composition of the plaintiff promotion committee after the disposition of this case, it is difficult to view that the defendant's approval of the promotion committee's appointment of the participant of this case's association can not obtain consent to the above 2/3 approval of this case's agreement.

However, where the intervenor has obtained the approval of establishment with the consent of at least 4/5 from the owners of land, etc., the intervenor's rights and obligations related to the affairs performed by the participant's promotion committee shall be comprehensively succeeded to the association authorized (Article 15 (4) of the Urban Improvement Act). However, such interests are not immediately accrued by the disposition of this case, but due to obtaining the approval of establishment with the consent of at least 4/5 of the owners of land, etc., and the plaintiff and the selected parties who did not consent to the composition of the participant promotion committee of this case cannot be deemed to have suffered any disadvantage due to the plaintiff and the selected parties who did not consent to the composition of the participant promotion committee of this case, and even if the plaintiff and the selected parties were to become members of the association to be established in the future, they shall not be deemed to have suffered any disadvantage in the status of independent third parties who are not members of the association to be established in the independent status. Thus, the decision of the participant of this case subject to the resolution of this case shall not be deemed to be a defect of the plaintiff's representative and the land owner of this case.

Therefore, the lawsuit of this case is unlawful since there is no standing to sue to seek cancellation of the disposition of this case, such as that it cannot be deemed that any legal interest has been infringed on by the disposition of this case.

4. Conclusion

Therefore, the plaintiff's lawsuit of this case shall be dismissed, and the judgment of the court of first instance shall be dismissed differently from this conclusion, and it is so decided as per Disposition.

[Attachment List of Appointed]

Justices Kim Jin-jin (Presiding Justice)