[1] Legal nature of an administrative agency’s disposition of authorization to establish an association under relevant Acts and subordinate statutes, such as the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, and whether it is permissible to separate the portion of the resolution on the ground of defects in the association establishment resolution, and file

[2] In a case where an administrative agency's disposition of approving the establishment of a housing reconstruction and improvement project association under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents sought confirmation of nullity, etc. of such resolution as a civil lawsuit on the grounds of defects in the association establishment resolution, the case holding that the lawsuit should be transferred to the administrative court, which is the competent court, on the ground that it can be changed into an appeal litigation against the disposition of approving the establishment of an association

[1] A disposition to establish an association by an administrative agency based on relevant Acts and subordinate statutes, such as the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, does not merely have the nature as a supplementary act for establishing an association by private persons, but, if meeting the legal requirements, it has the nature of a sort of authoritative disposition that grants the status as an administrative agent (public corporation) with authority to implement a housing reconstruction project under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents. Furthermore, as seen so far as such, a resolution to establish an association is merely one of the requirements necessary for administrative disposition such as a disposition to establish an association. Thus, if there is a defect in a resolution to establish an association, it is necessary to seek revocation or nullification of the disposition to establish an association by directly filing an appeal litigation on the ground of the defect, and filing a lawsuit to confirm the validity of a resolution to establish an association by removing only the part of the resolution to establish an association

[2] In a case where an administrative agency's disposition of approving the establishment of a housing reconstruction and improvement project association under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents sought confirmation of invalidity, etc. of such resolution as a civil lawsuit on the grounds of defects in the association establishment resolution, the case holding that although there is room to view that the lawsuit falls under an illegal lawsuit without interest in confirmation, it cannot be viewed that the substance of the lawsuit is the purport of disputing the validity of the disposition of approving the establishment of a housing association in light of the previous practical practice, etc., which was viewed as a supplementary act, and that the other party of the lawsuit is a reconstruction association having a status as an administrative body, it is reasonable to view that the lawsuit is related to a juristic act in public law, and that the lawsuit can be changed into an appeal litigation against the disposition of approving the establishment of a housing association

[1] Article 16 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Article 3 subparags. 1, 2, and 4 of the Administrative Litigation Act, Article 250 of the Civil Procedure Act / [2] Article 16 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Article 3 subparags. 1, 2, and 4 of the Administrative Litigation Act, Article 34(1) and Article 2

[1] [2] Supreme Court en banc Decision 2007Da2428 Decided September 17, 2009 (Gong2009Ha, 1648)

Plaintiff 1 and 14 others (Attorneys Kim Jae-chul et al., Counsel for the plaintiff-appellant)

Defendant Housing Reconstruction and Improvement Project Association (Law Firm Square et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2007Na101716 decided July 24, 2008

The judgment of the court of first instance is reversed, and the judgment is revoked. The case is transferred to the Seoul Administrative Court.

We examine the grounds of appeal ex officio prior to judgment.

A housing reconstruction and improvement project association under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the “Urban Improvement Act”) shall be established as a juristic person after obtaining authorization for establishment from the competent administrative agency after meeting the requirements and procedures prescribed by relevant Acts and subordinate statutes, such as obtaining consent to establish an association from the owners, etc. of land and buildings in a rearrangement zone (hereinafter referred to as “project association establishment resolution”). Furthermore, under the supervision of the competent administrative agency, a reconstruction association established following such procedures has the status as an administrative agent performing certain administrative actions within the rearrangement zone under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the “Urban Improvement Act”).

Therefore, it should be viewed that an administrative agency's establishment disposition based on related laws such as the Urban Improvement Act does not merely have the nature as a supplementary act for establishing an association by private persons, but also has the nature of a sort of right disposition that grants the status as an administrative agent (public corporation) with authority to implement a housing reconstruction project under the Urban Improvement Act if it satisfies the legal requirements.

In addition, insofar as the association establishment resolution is seen as above, it is merely one of the requirements required for an administrative disposition such as the disposition of authorization to establish an association. If there is a defect in the association establishment resolution, it is necessary to seek revocation or invalidity confirmation of the disposition of authorization to establish an association by means of an appeal litigation directly on the ground of the defect. Moreover, filing a lawsuit seeking confirmation of the validity of the association establishment resolution by removing only the part of the association establishment resolution separately cannot be the most effective and appropriate means for removal of the Plaintiff’s rights or legal status, barring special circumstances.

However, according to the reasoning of the judgment of the first instance as cited by the court below and the records, the lawsuit of this case was filed on December 20, 2006, after the disposition of approving the establishment of the competent administrative agency on June 12, 2006, which was after the disposition of approving the establishment of the association of this case was taken. Thus, there is room to view that the lawsuit of this case constitutes an illegal lawsuit without interest in confirmation according to the above legal principles.

However, the substance that the plaintiffs want to dispute by the lawsuit in this case is the validity of the association establishment, and it should be done by the method of seeking revocation or invalidity confirmation of the disposition approving the establishment of the association as seen earlier, and it seems that the previous practical practice, which had been viewed as a supplementary act to supplement the establishment approval of the reconstruction association without properly knowing this point, has been selected as a method of seeking invalidity confirmation of the association establishment resolution meeting the requirements. In light of these circumstances, the lawsuit in this case cannot be viewed as the purport of disputing the validity of the disposition approving the establishment of the association. In addition, considering the fact that the other party to the lawsuit in this case is the defendant association who has the status as an administrative agent, it is related to legal relations in public law, and it is reasonable to view that the lawsuit in this case was filed as a party litigation which

Therefore, the lawsuit of this case should have been filed with the Seoul Administrative Court, which is the competent court of the first instance, even though it was tried, and thus, it is erroneous in violation of the exclusive jurisdiction prior to the existence of interest in confirmation. In light of the fact that this case can be changed into an appeal litigation against the disposition of approving the establishment of the association after transfer, it is difficult to see that this case should be transferred to the competent court, because it is not obvious that it would be dismissed as it is illegal even if transferred (see Supreme Court Decisions 95Da28960, May 30, 1997; 2007Da25261, Jul. 24, 2008, etc.).

Therefore, the judgment of the court below is reversed ex officio without examining the grounds of appeal, and the judgment of the court of first instance is revoked and the case is transferred to the competent court. It is so decided as per Disposition by the assent of all participating

Justices Kim Nung-hwan (Presiding Justice)