[1] Whether the defects of the re-building resolution at the time of the re-building resolution can be cured if some of the members who did not participate in the re-building meet the quorum by supporting the re-building resolution (negative)

[2] In a case where a new rebuilding resolution was adopted due to defects in the previous rebuilding resolution, the method of exercising the right to demand sale according to the resolution

[1] The right to claim sale by a sectional owner, etc. under Article 48 of the Multi-Unit Residential Building Act arises only when a resolution for rebuilding is made effective. Thus, if a resolution for rebuilding fails to meet the quorum under Article 47 (2) of the Multi-Unitial Building Act, the right to claim sale cannot be exercised, and even if a part of the members who did not participate in rebuilding during the lawsuit following the exercise of the right to claim sale satisfies the quorum by consenting to the rebuilding resolution, the previous rebuilding resolution that is corrected and null and void is not retroactively valid.

[2] In a case where a new rebuilding resolution was made due to defects in the previous rebuilding resolution, the right to claim sale according to such resolution shall lose its effect if it is not exercised within two months from the expiration date of the period of reply, and it shall not be deemed that the lawsuit for the exercise of the right to claim sale is pending, and it shall not be deemed that the lawsuit for the exercise of the right to claim sale is pending.

[1] Article 47 (1) and (2), and Article 48 of the Multi-Unit Residential Building Act / [2] Article 48 (2) and (4) of the Multi-unit Residential Building Act

[1] Supreme Court Decision 200Da24061 delivered on November 10, 200 (Gong2001Sang, 12) / [2] Supreme Court Decision 2000Da11621 delivered on June 27, 200 (Gong2000Ha, 1757) Supreme Court Decision 200Da22812 delivered on September 24, 2002

tin 1-dong Jeju Apartment Rebuilding Housing Association (Attorney Kim-ro, Counsel for the plaintiff-appellant)

Defendant

Seoul High Court Decision 97Na59496 delivered on January 4, 2000

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

1. Summary of the judgment of the court below

After compiling the adopted evidence, the court below found the facts as stated in its reasoning. (i) The rebuilding resolution dated May 28, 1995 and the main claim exercising the right to demand sale based on the peremptory notice dated November 29, 1996 against the defendant, who is the non-resident of rebuilding association, was approved by 31 out of 40 co-owners of the three buildings belonging to the defendant before the above peremptory notice which is the premise of exercising the right to demand sale of the plaintiff association, and this does not reach 4/5 of the total sectional owners of the three buildings. The above peremptory notice or its exercise of the right to demand sale based on it was unlawful because it was 97.197 months after the above peremptory notice was issued, and it was reasonable for the defendant to have the right to demand sale based on it, which was 97.7 times after the expiration of 97.197 co-owners of the building, which was the result that the plaintiff's right to demand sale had not been recovered from the original rebuilding resolution.

2. Judgment on the grounds for appeal

Since the right to demand sale by the sectional owners, etc. under Article 48 of the Multi-Unit Residential Building Act arises only when a resolution for rebuilding is made effective, if the resolution for rebuilding fails to meet the quorum under Article 47 (2) of the Multi-Unitial Building Act, the right to demand sale cannot be exercised since the resolution for rebuilding cannot be deemed valid (see Supreme Court Decision 2000Da24061 delivered on November 10, 200), and even if a part of the witness to the rebuilding during the lawsuit following the exercise of the right to demand sale satisfies the quorum by consenting to the resolution for rebuilding, the previous resolution for rebuilding that is null and void due to the cure of the defect of the quorum shall not be retroactively valid.

In addition, where a new rebuilding resolution is made due to defects in the previous rebuilding resolution, the right to demand sale in accordance with such resolution shall lose its effect if it is not exercised within the period of exercise within 2 months from the expiration date of the reply period after demanding the sectional owner or successor who did not agree with the rebuilding resolution pursuant to Article 48 (2) and (4) of the same Act, to demand sale in accordance with the new resolution (see Supreme Court Decision 2000Da11621 delivered on June 27, 200), and it shall not be deemed that the lawsuit for the exercise of the right to demand sale is pending (see Supreme Court Decision 200Da11621 delivered on June 27, 200).

According to the facts and records established by the court below, even if the lawsuit of this case was instituted on April 9, 1997 and a copy of the complaint was served on the defendant on July 19, 199, and only 31 persons who were sectional owners of the three buildings to which the defendant belongs agreed to the rebuilding resolution, but only 38 persons among those who agreed to the rebuilding for an additional period between June 19, 197 and June 197 were to agree to the rebuilding. Accordingly, the plaintiff union notified the defendant as to whether to participate in the rebuilding again on July 8, 1997. On the other hand, the preliminary claim of this case with the purport that the right to demand sale under a new peremptory notice was not valid for the first time after the expiration of the period for exercising the right to demand sale from 97 new sectional owners, and it can only be viewed that the new period for exercising the right to demand sale was valid for the first time after the lapse of the period for exercising the right to demand sale under the new peremptory notice, even if it were not valid for the new period for sale.

Nevertheless, the judgment of the court below which accepted the preliminary claim in light of the legal principles as to the right to demand sale under the Multi-Unit Building Act, which affected the conclusion of the judgment, based on the fact that the defendant did not reply to the new peremptory notice and the period expired, the defect in the exercise of the right to demand sale in accordance with the first rebuilding resolution of the plaintiff union by the method of delivering a copy of the complaint in this case was cured, and that the contract was concluded between the plaintiff union and the defendant as of September 8, 1997. The allegation in the grounds of appeal pointing this out is justified.

3. Therefore, without examining the remaining grounds of appeal, the part against the defendant among the judgment below against the defendant is reversed, and that part of 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.

Justices Cho Cho-Un (Presiding Justice)