[1] The validity of a rebuilding resolution which does not specify matters concerning the apportionment of rebuilding cost (=negative)

[2] Whether the establishment of the association affects the internal relationship between the housing association and the association members (negative)

[3] The case affirming the judgment of the court below which held that a resolution of a general meeting held by a person who is not the president of the association without following the procedure stipulated in the rules of the existing reconstruction association is invalid due to defects in the convocation procedure where a separate reconstruction promotion committee is established and a new association is established despite the existence of authorization to establish the association

[1] According to Article 47 (2) of the Multi-Unit Residential Building Act, a resolution for rebuilding shall be adopted by a majority of 4/5 or more of the sectional owners and voting rights. According to Article 47 (3) and (4) of the Multi-Unitial Building Act, when a resolution for rebuilding is adopted, matters concerning the removal of the building and the allocation of expenses incurred in the construction of the new building and matters concerning the ownership of sectional ownership of the new building shall be determined, and such matters shall not be determined in accordance with the principle of equity among sectional owners. The matters concerning the apportionment of rebuilding expenses shall be the basis for selecting whether the sectional owners should participate in rebuilding, or sell the sectional ownership at the market price and not participate in the rebuilding. The most important and essential part of the contents of the resolution for rebuilding is the most important and essential part of the contents of the rebuilding, and the rebuilding resolution shall be null and void unless special circumstances exist.

[2] An act of approving the establishment of a housing association is a supplementary act that supplements the basic act subject to the authorization to complete the legal effect, and its validity is at issue depending on the existence of such authorization does not affect the internal relationship between the housing association and the association members in relation to the public law related to the former Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 2003).

[3] The case affirming the judgment of the court below that the resolution of the general meeting held by a person who is not the president of the association without following the procedure stipulated in the rules of the existing reconstruction association is null and void due to defects in the convocation procedure where a separate reconstruction promotion committee is formed and a new association is established despite the existence of authorization for the establishment of the association

[1] Article 47 of the Multi-Unit Residential Building Act / [2] Article 44(1) of the former Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 2003) (see current Article 32(1) of the Housing Act), Articles 40 and 71 of the Civil Act, Article 44(1) of the former Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 2003) (see current Article 32(1) of the Housing Act)

[1] Supreme Court Decision 98Da15996 delivered on June 26, 1998 (Gong1998Ha, 1998) Supreme Court Decision 2001Da77819 delivered on March 15, 2002 (Gong2002Sang, 896) / [2] Supreme Court Order 2002Da12 delivered on March 11, 2002 (Gong2002Sang, 1203)

Plaintiff (Attorney Tae-tae et al., Counsel for the plaintiff-appellant)

○○ Jeju Industrial Complex Reconstruction Association (Attorneys Kim Jae-in et al., Counsel for the plaintiff-appellant)

Daejeon High Court Decision 2002Na7860 delivered on January 7, 2004

The appeal is dismissed. The costs of appeal are assessed against the defendant.

1. Regarding ground of appeal No. 1

According to Article 47(2) of the Multi-Unit Residential Building Act, a resolution for rebuilding shall be adopted by a majority of 4/5 or more of both sectional owners and voting rights. According to Article 47(3) and (4) of the Multi-Unitial Building Act, when a resolution for rebuilding is adopted, matters concerning the removal of the building and the apportionment of expenses incurred in the construction of the new building and matters concerning the ownership of sectional ownership of the new building shall be determined. Such matters shall not be determined in accordance with the principle of equity among sectional owners. The matters concerning the apportionment of rebuilding expenses shall be the basis for determining whether each sectional owner should participate in rebuilding while bearing reasonable expenses, or whether the sectional owner will sell sectional ownership, etc. at the market price and choose not to participate in rebuilding. The most important and essential part of the contents of the resolution for rebuilding is the most important and essential part of the contents of the resolution for rebuilding at the stage of the rebuilding implementation, and the apportionment or calculation basis shall be determined and the rebuilding resolution which has not been determined shall be null and void unless there are special circumstances (see Supreme Court Decision 98Da19797, Jun. 26, 26, 1998, 2098).

However, according to the records, there is no evidence to prove that the defendant union established the apportionment or calculation basis to the extent that it does not reach an agreement on the apportionment of expenses at the stage of rebuilding implementation at the time of rebuilding implementation, unless there are special circumstances, it shall be deemed that the above rebuilding resolution has no effect.

However, according to the facts duly confirmed by the court below, it is acknowledged that the residents living in the ○○ Jeju-ro apartment complex (hereinafter "the project area of this case") and about 15,359 of the site of 20 lots of land and about 15,359 constituted the reconstruction promotion committee composed of the representative of the apartment building on September 14, 1995. On June 15, 1996, a general meeting of residents was held to elect the plaintiff as the head of the association and the association was formed to elect the plaintiff as the head of the association, and the association constituted the defendant association to take charge of the reconstruction association by accepting the association regulations, and thereafter, it is recognized that the defendant association constituted the board of representatives and elected the officers such as the deputy head of the association.

On the other hand, although the defendant union did not obtain an authorization to establish the association from Ancheon City after it, the act of authorization is a supplementary act to complete the legal effect by supplementing the basic act subject to it, and its validity is at issue depending on the existence of such authorization. It does not affect the internal relationship between the housing association and its members (Supreme Court Order 2002Da12 Decided March 11, 2002).

Therefore, even if the rebuilding resolution of the defendant union on June 15, 1996 does not meet the requirements under the Multi-Unit Residential Building Act and is null and void, it does not affect the formation of the defendant union and the validity of the agreement itself. Therefore, the ground of appeal No. 1 is without merit.

2. Regarding ground of appeal No. 2

According to the reasoning of the judgment below, as a whole, the plaintiff did not hold an ordinary general meeting and did not appear to convene an extraordinary general meeting, and as a result, it delayed authorization for the establishment of a reconstruction project, the reconstruction promotion committee consisting of the non-party chairperson from July 200 with the center of the apartment autonomous management committee and women's association within the project area, and as the above reconstruction promotion committee received consent for the reconstruction project from not less than 4/5 of the members, the non-party cannot be viewed as being the chairperson of the reconstruction promotion committee on August 27, 2001, and the non-party cannot be seen as holding a new resolution for the extinguishment of the association's establishment of the non-party reconstruction promotion committee as the non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's resolution.

3. As to the fourth ground for appeal

According to the reasoning of the judgment below, the court below held that the defendant union and the ○○ Reconstruction Association, based on the facts duly admitted, are identical to the aggregate building which is the object of the reconstruction project, and their continuity has been maintained formally, and should be deemed to be identical to the purpose of its establishment and its members. In light of the records, the above fact-finding and decision of the court below are justified, and there is no error in the misapprehension of legal principles as alleged.

4. As to the grounds of appeal Nos. 3 and 5

According to the reasoning of the judgment below, even if the resolution of this case was made in the same manner as the defendant union and the ○○ Reconstruction Association were to establish a new association, its substance is the general meeting of the defendant association, which is about the replacement of the president of the association, and the general meeting of the defendant association under the rules of the defendant association provided that the president of the association was convened at the request of at least 1/3 of the union members or the incumbent representatives, but the non-party, who is not the president of the defendant association, issued a notice of convening the rebuilding promotion committee as the chairperson of the reconstruction promotion committee, and made the resolution of this case at the meeting held on September 11, 2001, the above general meeting of the association held in the presence of the non-party cannot be deemed a legitimate special meeting, and therefore the resolution of this case is null and void due to the defect in the convocation procedure. In light of the records, even if the defendant association supported the reconstruction project without obtaining the approval of the establishment after the reconstruction resolution, the allegation in the grounds of appeal cannot be accepted as a whole without the resolution of this case.

5. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Zwon-won (Presiding Justice)