[1] Whether safety diagnosis under Article 44-3 (1) of the Housing Construction Promotion Act is an element for exercising the right to demand sale under Article 48 of the Multi-Unit Residential Building Act (negative)

[2] The degree of determination on the apportionment of rebuilding expenses in the resolution for reconstruction

[1] Article 44-3 (1) of the amended Housing Construction Promotion Act (Act No. 6250 of Jan. 28, 2000) provides that "in case where the owners of old and poor housing intend to remove the housing concerned and construct the housing on the removed site, they shall file an application for a safety inspection with the Mayor, etc." However, there is no ground to deem the safety inspection necessary as a requirement for exercising the right to demand sale under Article 48 of the Multi-Family Building Construction Promotion Act. Therefore, the safety inspection conducted under the former Act is null and void because there is no transitional provision in the amended Act of the Housing Construction Promotion Act, and therefore, even if the reconstruction association did not perform a new safety inspection but passed a reconstruction resolution and exercised the right to demand sale against the members of the reconstruction association, the establishment of the right to demand sale against the members of the reconstruction association cannot be denied on the sole

[2] According to Article 47 (3) of the Multi-Unit Residential Building Act, when a resolution for reconstruction is adopted, matters concerning the apportionment of expenses incurred in the removal of the building and construction of the new building and matters concerning the attribution of sectional ownership of the new building shall be determined. The matters concerning the apportionment of rebuilding expenses are the criteria for selecting whether the sectional owners will participate in the reconstruction while paying reasonable expenses, whether the sectional owners will sell sectional ownership, etc. in accordance with the market price and not participate in the reconstruction. Therefore, it is sufficient to set the standards for calculation of the apportionment or calculation to the extent that it may not be agreed again at the stage of rebuilding implementation

[1] Article 44-3 (1) of the Housing Construction Promotion Act, Article 48 of the Multi-Unit Residential Building Act / [2] Article 47 (3) of the Multi-Unit

[2] Supreme Court Decision 98Da15996 delivered on June 26, 1998 (Gong1998Ha, 1998)

Jeon federation Rebuilding Housing Association (Attorney Han-jin, Counsel for the plaintiff-appellant)

Defendant 1 and 10 others (Attorney Kim Young-chul, Counsel for the defendant-appellant)

Supreme Court Decision 2000Da24061 Delivered on November 10, 2000

Seoul High Court Decision 2000Na59557 delivered on October 31, 2001

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

1. Regarding ground of appeal No. 1

Article 44-3 (1) of the amended Housing Construction Promotion Act (Act No. 6250) provides that "When the owners of old and poor housing intend to remove the housing in question and construct the housing on the land which they removed, they shall file an application for a safety inspection with the Mayor, etc." However, there is no ground to deem the safety inspection to be necessary as a requirement for exercising the right to demand sale under Article 48 of the Aggregate Buildings Act. Thus, the safety inspection conducted under the former Act is null and void since there is no transitional provision in the amended Housing Construction Promotion Act as alleged by the Defendants, and even if the Plaintiff did not implement a new safety inspection but passed a reconstruction resolution and exercised the right to demand sale against the Defendants, the judgment of the court below to the same purport is justifiable, and there is no error in the misapprehension of legal principles as to the Housing Construction Promotion Act or the omission of judgment.

2. Regarding ground of appeal No. 2

According to Article 47 (3) of the Aggregate Buildings Act, matters concerning the removal of a building and the apportionment of expenses incurred in constructing a new building and matters concerning the reversion of sectional ownership of a new building shall be determined. The matters concerning the apportionment of expenses for the reconstruction are the criteria for selecting whether a sectional owner will participate in the reconstruction by bearing a reasonable expense, or whether a sectional owner will sell sectional ownership, etc. and not participate in the reconstruction at the market price. Thus, it is sufficient to set the basis for calculating the apportionment or calculation to the extent that it would not reach an agreement on the apportionment of expenses again at the stage of rebuilding implementation (see Supreme Court Decision 98Da15996, Jun. 26, 1998).

According to the reasoning of the judgment below, the court below held an extraordinary general meeting on July 12, 2001 and recognized the fact that the plaintiff union resolved to reconstruct by determining the outline of the design of the new building, estimated amount of expenses incurred in the removal of the building and construction of the new building, apportionment of the above expenses, ownership of the sectional ownership of the new building, etc., and based on the premise that the above rebuilding resolution is valid, the above rebuilding resolution is judged valid, and therefore, it can be known that the court below confirmed the defendants' obligation to honor the real estate and to register ownership transfer according to the exercise of the plaintiff union's right to demand sale. In light of the records and the above legal principles, the above fact-finding and the judgment of the court below are insufficient in its reasoning, but it is just in its conclusion, and there is no error

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)