Dong apartment reconstruction and rearrangement project association (Law Firm Inju, Attorneys Kim Do-ho et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm LLC, Attorneys O Min-seok et al., Counsel for defendant-appellant)

September 15, 2006

1. On January 15, 2001, the Defendant (Counterclaim Plaintiff) entered the registration procedure for ownership transfer based on the trust to the Plaintiff (Counterclaim Defendant) on real estate stated in paragraph (2) of the attached list.

2. All of the Defendant-Counterclaim Plaintiff’s counterclaims are dismissed.

3. The costs of lawsuit are assessed against the Defendant-Counterclaim Plaintiff by aggregating the principal lawsuit and the counterclaim.

The main office is as set forth in Paragraph (1).

Counterclaim: It is confirmed that there is no resolution corresponding to Article 47(3) and (4) of the Multi-Unit Residential Building Act, which is necessary to reconstruct an aggregate building and ancillary or welfare facilities on the land listed in the attached list in paragraph (1) of the attached list. It is confirmed that the Plaintiff (Counterclaim Defendant; hereinafter referred to as the “Plaintiff Union”)’s ordinary allocation and drawing of Dong and unit numbers for the Plaintiff’s members on March 22, 2005 are invalid.

1. Basic facts

The following facts are not disputed between the parties, or evidence Nos. 1, 2 (Evidence No. 2 consists of Evidence No. 4-24 and 25-1), 4, 8 (including each number), 9 (Evidence No. 3 is part of Evidence No. 9), 14, 15, 16 (including each number), 17, 24, 29, 30, 31 (including each number), 32, 35 (including evidence No. 7, 15), 35 of the above evidence No. 1) which were written on the premise that the above evidence No. 2 was written on the evidence No. 5, and that the evidence No. 1 and No. 2 were written on the evidence No. 5, and thus, it is difficult for the court to acknowledge that the evidence No. 35 had been recorded on the evidence No. 1 as evidence No. 5, and thus, it is not reasonable for the court to acknowledge the admissibility of evidence as evidence of the above expert witness No. 35.

A. Status of the parties

The plaintiff association is a reconstruction association established for the purpose of removing existing apartment and commercial buildings and rebuilding (hereinafter referred to as the "rebuilding of this case") of 600 units, 163-dong 17 and 12-dong 12 (13-dong 3,000 units, 13-dong 1,520, 14-type 400 households, 17-type 570 households, and 20-type 510 households; hereinafter referred to as "the apartment of this case") and 6,207 among the sectional owners of 208 households, and 6,207 members of the building of this case among those who own the building of this case, and around October 27, 192, the defendant is the owner of the real estate listed in paragraph (2) of the attached Table of this case, who agreed to the re-building of this case, as a comprehensive succession of the deceased on April 21, 202.

(b) Inaugural general meeting and rebuilding resolution;

(1) From 192 to 192, the locked apartment reconstruction promotion committee, the telegraph of the Plaintiff’s association, collected written consent for reconstruction from the sectional owners of the apartment and commercial buildings in this case. On January 15, 1995, in the presence of the 3,087 sectional owners on January 15, 1995, the association’s inaugural general meeting was held to reconstruct the apartment and commercial buildings in this case (hereinafter “re-building resolution of January 15, 1995”) and decided to authorize the rebuilding of the apartment and commercial buildings in this case (hereinafter “re-building resolution of January 15, 1995”), ① approval of the business plan, ② approval of the association’s articles of association (such as the term of office of officers and the quorum for convening the special general meeting, some provisions were amended and resolved differently from the original), ③ approval of the association’s articles of association, and submitted the business plan from the construction companies that intend to participate in

(2) Even after the inaugural general meeting, the Plaintiff Union continued to submit a “written consent on the rebuilding resolution, etc.” (hereinafter “written consent on rebuilding resolution”) to the effect that it consents to rebuilding as agreed from the sectional owners of the instant apartment and commercial building who did not attend the inaugural general meeting, and that the consent rate exceeds 80%, and obtained authorization from the head of Songpa-gu on January 15, 2001 to establish the housing association (However, even though it was recognized that only 4,961 consent was valid at the time of approving the establishment of the association as a matter of the validity of a partial consent at the time of approving the establishment, the Plaintiff continued to obtain authorization on the basis of the consent of 6,207 consent from the head of Songpa-gu on May 19, 2005).

(c) Enactment and amendment of the articles of association;

(1) Of the Articles of Incorporation of the Plaintiff Union (hereinafter “Inaugural General Meeting Articles of Incorporation”) resolved at the time of the instant rebuilding resolution, the parts relating to the instant case are as follows.

Article 5 (Method of Enforcement)

(1) A project implementation shall invest in land owned by members within the zone, select a specialized construction-registration business operator as a construction business operator, and build appurtenant buildings, such as multi-family housing and welfare facilities, and the joint project owner involved in construction shall be the joint project owner.

Article 12 (Matters to be Resolved at General Meeting) The following matters shall undergo a resolution of the general meeting:

1. Amendment and repeal of the articles of association;

2. Decision on the project execution plan;

3. Formulation and amendment of a management and disposal plan;

Article 13 (Method of Resolution at General Meeting)

(1) A general meeting shall be held by attendance of a majority of members and pass resolutions with the consent of a majority of members present.

Article 21 (Imposition of Expenses)

(1) A cooperative may impose and collect expenses incurred in implementing its projects from members.

(2) The amount of dues shall be imposed fairly according to the ratio of investment shares.

Article 29 (Management and Disposal Plans) The management and disposal of property owned by members of a cooperative shall comply with the following guidelines:

(1) In principle, buildings shall be sold in lots at the ratio of the area of land invested by members.

(2) In principle, one house shall be sold to one member.

(3) The area of a building to be sold in lots after the implementation of a project shall be based on the area of sale in lots (exclusive and co-owned area), and a site shall be sold in lots in co-ownership shares in proportion to the area of apartment.

(4) A house to be sold to members shall be determined on the basis of all equity shares in each type of building, after consultation with participating members according to the details of approval for a project, after approval for a project has been granted.

(5) With respect to any difference between the scale of newly built apartment units and the scale of investments by members, the equity shares that become the vehicles of such size shall be the equity shares, other than the members of the association, shall acquire the amount of surplus earnings disposed of by the association within the time limit determined by the association, and if any reason for receiving such amount exists, the association shall

(6) Determination of Dongs, floors and units of an apartment unit sold by a member shall be made by means of open drawing according to the separate detailed rules, and no objection shall be raised to the results of the drawing.

(7) Project expenses, such as construction expenses raised by participating partners shall be paid by selling buildings such as apartment buildings sold in lots to the association members or by selling them in lots, and it shall be paid as a substitute for a house supply rule, etc. in accordance with a separate agreement.

(9) Apartment houses of general sale except for the disposition of parcelling-out by members shall be sold in general.

(11) After completion of the scale of a project and the procedures for approval, etc., the association shall prepare a management and disposal plan and determine it in accordance with related regulations.

Article 42 (Effect Date) In principle, the articles of association shall be implemented from the date when authorization for establishment is obtained from the competent authority.

(2) After a rebuilding resolution on January 15, 1995, the executive body of the Plaintiff association was partially amended the inaugural general meeting’s articles of association through a resolution of the board of representatives and was required by the head of Songpa-gu to revise the articles of association in accordance with the Standard Rules of the Ministry of Construction and Transportation at the time of obtaining authorization for establishment of the association (hereinafter “amended articles of association”). Thereafter, the executive body of the Plaintiff association proposed an amendment of the articles of association at the special meeting held on February 28, 2004 by amending the articles of association once more, but it was required to obtain the consent of 2,352 out of 3,870 valid voters.

(3) Although the inaugural general meeting’s articles of incorporation did not have any provision on the duty to register the trust of a building owned by a cooperative member, Article 42(1) of the amended articles of incorporation provides that a cooperative member shall register the real estate owned by a cooperative member in a rebuilding project district as a trust by the date determined by the cooperative’s association for the purpose of protecting the rights and promoting

(d) Modification of design contents;

(1) In most of the sectional owners of the instant apartment, most of the instant apartment units wanted to be allocated a large size of the new building. The Plaintiff’s association (or the reconstruction promotion committee) confirmed that all the members wishing prior to the inaugural general meeting can be allocated at least 33 square meters of apartment units. As indicated in the table in paragraph (2) below, the notice distributed at the time of the inaugural general meeting and the design stated in the rebuilding resolution submitted by the Plaintiff association on July 19, 2003 were consistent with this.

(2) However, on September 25, 2000, Seoul announced the Seoul Metropolitan Government master plan for the development of the Cheongdam, Doro, and sericultural apartment zone, and demanded the Plaintiff’s association to limit the usage rate and increase the ratio of the mandatory construction of small-sized square meters. Ultimately, the Plaintiff’s association obtained business approval on June 23, 2003 based on the somewhat modified design content as indicated below.

본문내 포함된 표 ？ 1995. 1. 15. 창립총회 당시 2003년경 동의서 2003. 6. 23. 사업승인안 용적율 364% 284.97% 280.68% 세대구성 평형 세대수 평형 세대수 평형 세대수 ？ ？ ？ ？ 16 344 25 4,000 24 700 26 1,044 33 3,371 34 3,950 32,33 4,260 38 400 38 1,100 ？ ？ 43 2,229 44 1,000 45 642 ？ ？ 54 430 52 574 계 10,504 계 7,180 계 6,864 26평 이하 분양받게 되는 기존 조합원 수 0 0 524세대

E. Holding of the General Meeting of March 5, 2005

(1) On March 5, 2005, the Plaintiff Union held a general meeting to make a resolution on the following matters: (a) the case of approval for the contract for construction works; (b) the case of approval for the management and disposal plan (draft); (c) the case of approval for the change of executive officers; and (d) 4,539 (531 direct participants, 4,008 written resolution) among the 5,415 members (4,199 members, 1,216 members, and 4,199 members) (hereinafter “instant management and disposal plan resolution”). On the other hand, in the six-party agreement to which the Defendant belongs, 19 of the 30 members (30 direct participants and 16 members of the written resolution) were approved.

(2) From the general meeting to July 22, 2005, the Plaintiff Union requested a written resolution (hereinafter “the instant additional written resolution”) stating that it consents to the above management and disposal (hereinafter “the instant additional written resolution”) again from 1,033 members (the Plaintiff asserted that 1,036 members were the Plaintiff, but 3 members were the person who submitted the written resolution at the time of the general meeting) excluding those who participated in the written resolution at the time of the instant management and disposal plan resolution. In the case of six consent to which the Defendant belongs, seven members, excluding the previous written resolution, expressed an additional consent.

(3) Of the contents of the management and disposal plan decided by the Assembly on March 5, 2005, the main parts related to the instant case are as follows.

Article 4 (Standards for Previous Assets)

(1) The standards for 13 square units within a project implementation district, 3,00 households, 13 square units, 14 square units, 400 square units, 17 square units, 570 units, and 20 square units shall be calculated by taking an arithmetic mean of the values appraised by two certified appraisal and assessment institutions under Article 44 (2) of the Articles of Incorporation of the Cooperative and Article 19 of the Public Notice of Values and Appraisal of Lands, etc. Act.

(2) An arithmetic mean mean of appraisal corporations;

2,565,352,80,000 won, 2,564,680,60,600,000 won, which is the numerical mean of the numerical mean of the certified public appraisal corporations of the countries of the appraisal corporations classified in the main sentence; and 565,016,70,000 won

Article 5 (Calculation of Value of Rights)

The value of each person subject to parcelling-out, which serves as the basis for parcelling-out of sites and construction facilities for members, shall be calculated as follows:

1) The value of rights of members shall be the average value of the previous assets appraised at the proportion that reflects the development gains accrued from a reconstruction project.

* Amount of right = Assets of previous association members (amount obtained by averaging the values of land and buildings) ¡¿ proportional ratio;

* Ratio = Ratio = Ratio of allocating pure development gains generated from a reconstruction project to partners in a balanced manner.

The proportional rate = (the total estimated total income after the completion of the project - the total project cost / the total income before the end) x 100

2) Details of calculation of proportional rates

The proportional rate (99.31%) = (3,803,716,876,00 won - 1,256,398,147,00 won / 2,565,016,70,000 won) x 100

(iii) determine the amount of rights;

The proportional rate shall be applied on the basis of the arithmetic average of the previous appraisal values by ordinary appraisal corporations and national appraisal corporations.

※ 13평형(구) 산술평균금액 372,464,000원 × 99.31% ≒ 369,894,000원

※ 13평형(신) 산술평균금액 412,514,000원 × 99.31% ≒ 409,668,000원

※ 15평형 산술평균금액 425,178,000원 × 99.31% ≒ 422,244,000원

※ 17평형 산술평균금액 554,352,000원 × 99.31% ≒ 550,527,000원

※ 20평형 산술평균금액 655,980,000원 × 99.31% ≒ 651,454,000원

Article 6 (Sale of New Construction Buildings)

(b) Sale price;

(1) Sale by cooperative members: The amount shall be the arithmetic mean of the appraised values received by requesting an appraisal corporation based on Articles 48 and 57 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents and Public Notice of Values

(2) General sale: An association which is an implementer shall be separately determined in consideration of the market prices in neighboring areas.

Article 7 (Standards for Sale of Building Facilities)

1) Multi-family housing for sale to members is subject to the following criteria:

(1) In principle, housing units to be newly built according to the membership application form for parcelling-out shall be sold, but one house shall be supplied to one member: Provided, That rental housing units of a rental business operator under the Rental Housing Act, official residence owned by the State or a local government, and an employee accommodation owned by a corporation may be supplied as much as the number of previous housing units.

(ii) the standards for the allocation of flats, Dongs and headings;

(1) The allocation of a flat punishment shall take precedence over the application for parcelling-out.

(2) Where competition occurs according to desired deliberation, the punishment shall be determined first in the order of maximum amount of entitlement.

(3) A cooperative member who wishes to have one floor by the grade of each sale in lots shall be preferentially allocated, and if there is any competition, it shall be determined by lot: Provided, That the principle of subparagraph B shall be applied preferentially.

(4) A member who has fallen from a decision on the sale of one network may participate in the allocation of two networked levels, but shall be allocated in accordance with the following standards: Provided, That subparagraph (i), (ii), (3) shall be applied preferentially:

* 20 square members

Where an application is filed for one parcel network at the time of application for parcelling-out in the form of 52,45, 33, 32, 26, and 16 of the table contained in the main sentence, it shall be preferentially allocated: Provided, That when an application for a 26 square and 16 square network is filed, the Dong and Dong may be designated and allocated.

* Members of 17 square, 14 square, 13 square, 13 square (Gu);

(2) Where an association member of the 2nd unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit

Article 9 (Contributions to Members)

(1) Cooperative members' charges = Sale price (sale price of an apartment unit sold in lots) - Amount of rights (see calculation of the price of rights under Article 5).

(2) Cooperative members' contributions shall be prepared on the basis of the total revenue and expenditure, which may be somewhat increased or decreased depending on changes in overall matters, and shall be settled at the time of liquidation of the cooperative, if any increase or decrease occurs.

Article 11 (Liquidation)

(a) Liquidation: Where there is liquidation money after completion of a project, it shall be paid to the members at the time of dissolution in proportion to the previous rights, and other liquidations shall be settled according to the area for sale;

(b) Methods for paying charges: Relevant Acts and subordinate statutes, such as Article 26 (Payment of Occupancy Charges) of the Rules on Housing Supply, etc., and general practices shall apply to the methods for paying charges, as the amount exceeding the amount of rights of each partner by the association's ownership, as expenses under Article 35, by the association's articles of association.

(f) Status of promoting reconstruction;

At present, the apartment and commercial buildings of this case are under construction after almost demolition has been completed, and the Plaintiff Union received the application for parcelling-out from April 7, 2005 and entered into a contract for parcelling-out with the Plaintiff Union on December 23, 2005, 5,982 (9.7%) from among the 6,000 members who are the sectional owners of the apartment of this case, as of December 23, 2005.

2. Summary of the parties' arguments

The Plaintiff Union, a member of the Plaintiff Union, asserts that the Defendant is obligated to make a trust registration on the real estate listed in paragraph (2) of the attached Table No. 2 in accordance with its articles of association, and seeks the Defendant to implement the registration procedure for

In regard to this, the defendant asserts that there is no resolution on the matters stipulated in Article 47 (3) and (4) of the Multi-Unit Building Act (the "multi-unit Building Act"), which is necessary for rebuilding aggregate buildings and accessory and welfare facilities on the land stated in the attached list paragraph (1) of the attached list, and that there is no resolution on the matters stipulated in Article 47 (3) and (4) of the Multi-unit Building Act (the "multi-unit Building Act"), and that there is no resolution on the matters stipulated in Article 47 (3) and (4) of the Multi-unit Building Act, which is effective for the defendant, and that there is no resolution on the matters stipulated in Article 47 (3) and (4

3. Judgment on the claim for confirmation of non-existence of rebuilding resolution under the Aggregate Buildings Act among counterclaims

(a) Transfer of the General Assembly on March 5, 2005;

(1) The parties' assertion

The defendant argues that the rebuilding resolution was not a resolution on the cost sharing and the ownership of sectional ownership at the general meeting of January 15, 1995 and at the general meeting of February 28, 2004, the plaintiff union did not adopt a resolution on the outline of the construction of the new building, the ownership of sectional ownership, and the ownership of sectional ownership under Article 47 (3) of the Multi-unit Building Act. Accordingly, the plaintiff union determined the outline of the construction of the new building, the ownership ownership, and the ownership sharing of sectional ownership at the general meeting of January 15, 1995 in the business plan, the general meeting of January 15, 1995, and the written consent of the general meeting of January 15, 1995 as the most specific method as soon as possible at the early stage of reconstruction.

(2) Determination

According to the above facts, it is true that the plaintiff union presented the criteria for sharing the burden of expenses to the union members through the articles of association, written consent, business plan etc. of the inaugural general meeting, and the allotment of sectional ownership. However, in the case of the inaugural general meeting and written consent for reconstruction, it is difficult to recognize that the standards are too abstract so that the sectional owners can determine whether to participate in reconstruction. In the case of the business plan, the construction company merely presented the reconstruction cost that it should share and accordingly, it cannot be deemed to be included in the contents of the resolution. In addition, there is no data to recognize that the contents of the resolution for reconstruction were presented to the sectional owners who submitted the written consent for reconstruction, and there is no other evidence to support that there was a resolution on the apportionment of expenses and the reversion of sectional ownership at the general meeting of January 15, 195 and the general meeting of February 28, 2004 as of February 5, 2005, there is no resolution on the resolution stipulated in Article 47(3) and (4) of the Act.

B. After the General Assembly of March 5, 2005

(1) In full view of the purport of the entire argument in the part E of the above 1- E, the instant management and disposition plan of this case, based on the amended design content, can be acknowledged as having set forth detailed criteria for the burden of union members, deliberation, and allocation of the same number, and the defendant asserts that the instant management and disposition plan resolution of this case also fails to meet the requirements as a new reconstruction resolution, and thus, is null and void.

(2) As to the violation of the special quorum provision

(A) The parties' assertion

The defendant asserts that the management and disposal plan resolution of this case, which was adopted at the meeting of March 5, 2005 at the meeting of January 15, 1995, and the rebuilding resolution of February 28, 2004, is a resolution on matters concerning the cost sharing and the reversion of sectional ownership. Thus, the defendant asserts that the management and disposal plan resolution of this case does not meet the above special quorum, even though it is necessary to make a resolution with the consent of at least 4/5 of the number of union members and at least 2/3 of each building by applying the quorum requirement at the time of rebuilding resolution.

With respect to this, the Plaintiff Union prescribed the matters concerning the establishment and modification of the management and disposal plan in the articles of association of the Plaintiff Union as the resolution of the general meeting, and the general meeting holds with attendance of a majority of the members and makes a resolution with the consent of a majority of the members present. Thus, the instant management and disposal plan resolution is valid only for satisfying the quorum requirements. Even in the case of requiring a special quorum for household affairs, even if the consent rate at the general meeting as of March 5, 2005 and the consent rate at the instant additional written resolution, it can be deemed to meet the special quorum. Accordingly, the instant management and disposal plan resolution is valid.

(B) Determination

In order to ensure the equity among the members of the association in cases where a resolution is adopted at the general meeting of members without determining matters concerning the apportionment of expenses for reconstruction in the course of implementing the reconstruction, it is reasonable to interpret that the resolution by the majority of not less than 2/3 of the sectional owners and voting rights for each building and not less than 4/5 of the entire sectional owners and voting rights by applying mutatis mutandis the quorum at the time of resolution for reconstruction (see Supreme Court Decision 98Da15996, Jun. 26, 1998, etc.) is necessary (see Supreme Court Decision 98Da15996, Jan. 15, 1995 and the resolution by the reconstruction as of Feb. 28, 2004 did not properly determine the apportionment of expenses and the reversion of sectional ownership rights. Unless there is any assertion or proof as to the fact that the resolution was made prior to the resolution by the management and disposal plan of this case, the resolution of this case is necessary by the majority of the sectional owners and not less than 2/3/4 of the entire voting rights.

However, in the resolution for re-building, in light of the fact that the consent for re-building cannot be easily determined by the sectional owners, and that in the case of re-building through the establishment of a re-building association, in practice, even if the written consent is not enforced, it is not necessarily limited to the first resolution at the meeting of the management body. Even if the first meeting of the management body did not meet the quorum necessary for re-building, if the members of the re-building association meet the quorum by separately submitting a written consent to the re-building in the process of the re-building promotion, then the re-building resolution is valid separately from the resolution at the meeting of the management body (see, e.g., Supreme Court Decisions 2003Da5545, Jun. 24, 2005; 208Da17572, Aug. 20, 199).

As seen earlier, although the general meeting of March 5, 2005 is 6,208, 4,539 of the total sectional owners (531 members, 4,008 members), if the defendant belongs, only 19 of the total sectional owners (16 members) did not meet the special quorum requirements by consenting to the management and disposal plan (19 of the total number of 30 members, 7 members (6 members) of the 1,033 members of the 20th general meeting (7 members of the 5th general meeting) who were not present at the 5th general meeting, it is recognized that the above additional resolution was not prepared at least 1,033 members of the 5th general meeting, and that there was no possibility that some of the members of the 20th general meeting were present at the 5th general meeting to be present at the 5th general meeting, and that there was no overlap between the 4,008 members of the 20th general meeting and the 5th general meeting resolution.

(3) As to the violation of the principle of equity

(A) The parties' assertion

(1) In assessing the previous assets of its members, the Defendant calculated the value of the previous assets by simply calculating the arithmetic mean of the appraised value of the sites and buildings of two appraisal corporations, which is the method stipulated in the articles of incorporation, by calculating the amount of development gains per square meter of the site, which is the method stipulated in the articles of incorporation, and multiplying the amount of the previous assets of its members by the shares of the site owned by its members. The previous assets of its members who have a small square type are excessively small and large amounts of assets, and the previous assets of its members are assessed as excessively large amounts of assets, which would result in a significant difference in the valuation of the previous assets compared to the difference in the shares of the site owned by its members who have a large square type of land, as stipulated in the articles of incorporation of the inaugural general meeting of this case, the value of the buildings is reduced by the said valuation value of the owners of the 13 square type of buildings, and thus, it goes against the principle of equity, ② in allocating the new buildings according to the order of equity among the owners of the new buildings, which would have been excessively allocated to the size of the new buildings.

In this regard, the plaintiff union asserts that the management and disposal plan of this case is not against the principle of equity, since it sets the allocation standards for new buildings in accordance with the criteria stipulated in the Seoul Metropolitan Government Ordinance

(B) Determination

Therefore, matters concerning the apportionment of rebuilding expenses and the attribution of sectional ownership should be decided by the members of the association. However, unless there are special circumstances, the internal regulations of the association such as the articles of association or resolution of a juristic person or an unincorporated association such as the plaintiff's association shall be valid unless they violate compulsory laws or violate good morals and other social order (see Supreme Court Decisions 91Da29026 delivered on November 24, 1992, Supreme Court Decisions 2001Da78980 delivered on April 26, 2002, etc.). However, even when the reconstruction association determines matters concerning the apportionment of rebuilding expenses and the attribution of sectional ownership, it is not necessary to invalidate such resolution on the grounds of minor equality by applying the formal ex officio principle of equity, but it shall be determined that the contents are considerably contrary to the conditions for the reconstruction project and the limitation of construction related construction works, the technical limit of the members of the association and the unreasonable disadvantage in the rebuilding project, and it shall be determined that it is null and void by the majority of the association members.

As to the instant case, the method of calculating the value of the previous apartment in proportion to the size of each sectional owner’s housing site cannot be deemed to accord with equity in assessing the value of each sectional owner’s previous apartment site. There is no evidence to deem that the appraisal result of each appraisal corporation unreasonably decided on the apartment site without any ground; ② priority is given to the reconstruction of a large number of members in the ordinary allocation of a new building, and it is not reasonable to give preferential treatment to the reconstruction of the building site; ③ The size of the new building is not necessarily proportional to the size or value of the new building; ③ It is difficult to deem that the instant management and disposal plan to be contrary to equity if the size of the new building site or the price of the new building is to be apportioned in a reasonable way, and it is unreasonable to determine the price of the apartment building to be apportioned by the members of the association as the arithmetic average of the appraised value of the two appraisal corporations; thus, it is not necessary to reasonably determine the size of the previous apartment site and the price of the new building to be distributed to the members of the association with a large amount of money obtained by deducting the rights of the previous apartment site.

(4) As to the violation of the proviso of Article 47 (1) of the Aggregate Buildings Act

The defendant asserts that the management and disposal plan resolution of this case is null and void, since there are sectional owners who had been allocated 26 square meters prior to the establishment of the resolution of this case's management and disposal plan, the plaintiff union should obtain the consent of 26 ordinary sectional owners pursuant to the proviso of Article 47 (1) of the Aggregate Buildings Act. The plaintiff union did not have obtained such consent.

The proviso of Article 47 (1) of the Aggregate Buildings Act provides that "if the contents of reconstruction have a special effect on the sectional owners of another building in the complex, the consent of those sectional owners shall be obtained." Here, "co-owners of another building in the complex" refers to the sectional owners of another building who did not participate in the reconstruction within the same housing complex (see Supreme Court Decision 2003Da55455 delivered on June 24, 2005), and it does not mean the sectional owners who participated in the reconstruction such as the defendant, so the above argument by the defendant is without merit.

C. Sub-committee

Therefore, even before March 5, 2005, there was no resolution on Article 47 (3) and (4) of the Aggregate Buildings Act, but as long as the resolution on the management and disposal plan of this case containing the contents of Article 47 (3) and (4) of the Aggregate Buildings Act was made effective on July 22, 2005 with a quorum, the defendant's claim of this case seeking confirmation of non-existence of rebuilding resolution under the Aggregate Buildings Act is without merit.

4. Determination on the part on the ordinary allocation among counterclaims, and on the claim to nullify the invalidity of the drawing of Dong/Dongs.

Since the management and disposal plan of this case is null and void, the defendant asserts that it is null and void in terms of the ordinary allocation on March 22, 2005 and the drawing of Dong and Dong, but the fact that the management and disposal plan of this case was effective around July 22, 2005 is as seen earlier, so the defendant's above assertion is without merit.

5. Determination on the main claim

(a) Occurrence of a duty to register a trust;

As above, as long as the rebuilding resolution has been duly established by the resolution of the instant management and disposition plan, the Defendant, a member of the Plaintiff association, is obligated to cooperate with the Plaintiff for the achievement of the purpose of the reconstruction project of the Plaintiff association. Thus, the Defendant is obligated to implement the procedure for ownership transfer registration based on the trust held on January 15, 2001, when the articles of association of the Plaintiff association became effective with respect to the real estate stated in the attached Table No. 2

B. Defendant’s assertion and judgment

(1) The defendant asserts that the duty to register trust of union members is not stipulated in the articles of incorporation of the inaugural general meeting, but only the amended articles of incorporation, but the amended articles of incorporation does not take effect since they did not go through legitimate procedures to modify the articles of incorporation. Accordingly, the defendant does not bear the duty to register trust against the plaintiff

On January 15, 2001, the articles of association of the Plaintiff’s inaugural general meeting stipulate the duty of investment in kind among the members of the Plaintiff’s association. The Plaintiff’s association is obligated to cooperate with the association’s achievement of the purpose of the reconstruction project. The obligation of investment in kind under the articles of association of the association includes the duty of transferring the land owned by the association for the purpose of trust for the smooth implementation of the reconstruction project. In the case of the sectional owners under the Act on the Ownership and Management of Aggregate Buildings, their right to use the site is subject to the disposition of the section of exclusive ownership and it is impossible to dispose of the right to use the site separately from the said section of exclusive ownership. As such, the association members were the association of all disposal rights, including the removal of the housing portion. Thus, the Plaintiff association members are obligated to take all disposal rights, other than the right to use the housing portion, and even if the association did not establish separate registration obligations under the articles of association, the association members are obligated to take effect on the date when the association’s establishment registration becomes effective (see Supreme Court Decision 987Da39697.

Therefore, regardless of whether the Plaintiff Union had followed the procedure for amending the articles of incorporation that newly provides for the duty to register the trust, the Defendant is obligated to register the trust to the Plaintiff Union according to the articles of incorporation of the inaugural general meeting. Thus, the Defendant’s assertion on the above part is without merit.

(2) The defendant also asserts that the articles of incorporation of the inaugural general meeting does not take effect since the head of Songpa-gu has not obtained approval of the articles of incorporation from the head of the inaugural general meeting. However, considering the overall purport of the pleadings in the statement No. 7, it can be acknowledged that the authorized articles of incorporation also stipulate the same obligation as the articles of incorporation of the inaugural general meeting in Article 5. According to the above facts of recognition, the defendant is obligated to register the trust as the plaintiff's member,

(3) The defendant asserts that, even if the articles of incorporation or the amended articles of incorporation take effect upon the end, the defendant's right shall be calculated by only the share of land, and that all members of the plaintiff's association shall agree to the above articles of incorporation with the knowledge that if at least 33 square meters of apartment buildings located in the existing complex are allocated or are not available, the defendant's failure to comply with the above articles of incorporation on June 19, 2006 due to the delivery of the legal brief as of June 19, 2006, the defendant revoked only the consent of the plaintiff's association about the plaintiff's articles of incorporation, among the expression of intent to consent to the plaintiff's association about July 19, 203, the defendant shall not comply with the above claim

Therefore, as seen earlier, inasmuch as the sectional owners of the apartment and commercial buildings of this case hold a general meeting on January 15, 1995 and elect the president and officers of the association, decide on the draft articles of association and obtain authorization for the establishment of the association, the Plaintiff Union shall be deemed a non-corporate group. If the draft articles of association is resolved at the general meeting of members of the non-corporate group in accordance with the principle of organization law, the resolution of the draft articles of association shall be effective as a matter of course for the members who did not consent to the draft articles of association. Thus, the Defendant’s above assertion is without

C. Sub-committee

Therefore, the defendant, who comprehensively succeeds to the status of the union member from the non-party 28 who joined the plaintiff union before obtaining authorization for establishment, is obligated to implement the procedure for registration of transfer of ownership based on the trust on January 15, 2001, which is the effective date of the articles of association as to the real estate stated in the

6. Conclusion

If so, the plaintiff's claim of the principal lawsuit is justified, and all of the counter-claim claims of the defendant are dismissed. It is so decided as per Disposition.

[Attachment List omitted]

Judges Yoon Sung-won (Presiding Judge)