2016Du40689 Other (general administration)

A Housing Redevelopment Project Association

B

Seoul High Court Decision 2016Nu33126 Decided May 12, 2016

May 17, 2017

The judgment of the court below is reversed.

The first instance judgment is revoked, and the case is remanded to the Seoul Administrative Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. According to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”), in cases where there is a difference between the price of land or building previously owned by a person who has purchased a site or building and the price of the site or building that has been sold to him/her, a project implementer may collect or pay an amount equivalent to the difference (hereinafter “settlement money”) from the person who has purchased the site or building from him/her (Article 57(1) main sentence), and impose and collect the difference between the proceeds accrued in the course of implementing a rearrangement project and a rearrangement project from the owner of a plot of land or building (Article 61(1)

In addition, if a person who is liable to pay the liquidation money fails to pay it or fails to pay the dues, a project implementer who is not the head of a Si/Gun may entrust the collection to the head of a Si/Gun, and the head of a Si/Gun who is entrusted with the collection may collect the amount equivalent to 4/100 of the collected amount in the same manner as delinquent local taxes are collected, and in such case, the project implementer shall pay the amount equivalent to 4/100 of the collected amount to the head of the relevant Si/Gun (Article 58(1) and Article 61(4) and (5) of the Urban Improvement Act), so long as the Act on the Improvement of Urban Areas provides a simple and economic special relief procedure so that the collection can be entrusted in the same manner as delinquent local taxes are collected (hereinafter referred to as "settlement money, etc.") and the head of a Si/Gun may directly request the head of a Si/Gun to pay the liquidation money by means of a party litigation (see, e.g., Supreme Court Decision 2014Da38584, Apr. 28, 2014).

On the other hand, the requirements for litigation, such as the standing to sue and the benefits to protect rights, shall be examined and determined by the court ex officio, even if the parties do not assert such requirements as ex officio, and where the requirements for litigation are not satisfied after the closing of arguments in the fact-finding court or such defects are cured, they shall also be taken into account in the final appeal (see, e.g., Supreme Court Decision 2010Da8753

2. The lower court determined that the Plaintiff’s lawsuit seeking payment of liquidation money, etc. against the Defendant who is a member of the Seoul Seongbuk-gu Seoul Metropolitan Government Housing Redevelopment Project Group (hereinafter “instant project”) was unlawful on the ground that there was no special remedy procedure, such as the entrustment of collection, and thus, there was no benefit of protection of rights.

3. However, according to the records, the Plaintiff filed a claim with the head of Seongbuk-gu Seoul Metropolitan Government (hereinafter referred to as the “head of the Gu”) on October 6, 2016, which was after the closing of argument in the lower court, to entrust the collection of the settlement money, and the head of the Gu is aware of the fact that he/she did not accept the request for entrustment through the response of the head of the Gu

Examining these facts in light of the legal principles as seen earlier, the head of the Gu is deemed to have refused the entrustment of collection by the Plaintiff and caused special circumstances that interfered with the realization of rights by the entrustment of collection. Therefore, it is reasonable to deem that the Plaintiff may directly claim the payment of liquidation money against the Defendant by means of a party suit under public law

Therefore, the judgment of the court below that judged that all of the plaintiff's claims for dues and settlement money are dismissed is no longer maintained.

4. Therefore, the judgment of the court below is reversed. Since the Supreme Court is sufficient to directly render a judgment, the judgment of the court of first instance is revoked, and the case is remanded to the court of first instance for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The presiding judge shall keep the record of the Justice

Justices Park Jae-hee in charge

Justices Park Young-young

Justices Kim Jae-in