[1] Whether a reconstruction association under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents can exercise its right to demand sale without a peremptory notice as to whether the reconstruction association can participate in reconstruction (affirmative)

[2] The meaning of "seller" under Article 48 (6) of the Act on the Ownership and Management of Aggregate Buildings

[1] According to Article 39 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents and Article 48 (1) of the Act on the Ownership and Management of Aggregate Buildings, a rebuilding project implementer shall demand that the partnership participate in the reconstruction only with the consent of the partnership establishment, and the "owner of land, etc. who is qualified as a partner of the reconstruction project" under Article 2 subparagraph 9 (b) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents. Thus, since "owner of land, etc. and its appurtenant land located within the rearrangement zone" is "owner of a building and its appurtenant land located within the rearrangement zone", it is impossible for a person who owns land or a building only within the rearrangement zone to become a partner from the beginning to participate in the reconstruction, and therefore, even under Article 39 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the peremptory notice of

[2] Article 48(6) of the Act on the Ownership and Management of Aggregate Buildings protects the owner of real estate in a rearrangement zone who does not participate in reconstruction, so if the causes for the housing reconstruction project implementer to commence the long-term demolition construction are mainly attributable to the seller, it is difficult to expect the seller's fulfillment of the seller's obligation (such as transfer of real estate ownership and delivery) under the principle of equity in the event the housing reconstruction project implementer fails to pay or receive the registration of ownership transfer from the seller without proving the market price of the real estate, that is, the market price of the real estate, or fails to accept the registration of ownership transfer, despite the fact that the housing reconstruction project implementer has entered into a sales contract despite the fact that the market price of the real estate was established, and at the same time, the housing reconstruction project implementer can deposit the purchase price equivalent to the market price after actively proving the market price of the real estate and commence the removal construction by acquiring the possession and ownership of the real estate through disposal of the land, transfer of ownership and transfer of real estate.

[1] Article 48 of the Act on the Ownership and Management of Aggregate Buildings, Article 16 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents / [2] Article 48 of the Act on the Ownership and Management of Aggregate Buildings

Seoul High Court Decision 201Na14488 delivered on May 2, 201

Defendant (Law Firm Asung, Attorneys Kim Jin-kin et al., Counsel for defendant-appellant)

October 18, 2007

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall receive KRW 759,390,000 from the plaintiff at the same time, and shall implement the procedure for the registration of ownership transfer for each real estate listed in the separate sheet No. 1 to the plaintiff on the date of delivery of a copy of the complaint of this case, and deliver the above real estate.

1. Facts of recognition;

The following facts can be acknowledged in consideration of the evidence Nos. 1 through 4-3, 7-1, 8 through 10, 14, 15, 18-1 and 2, and the fact inquiry results with respect to the Daegu Jung-gu Office of this Court.

A. The Plaintiff is a cooperative that obtained authorization from the head of Daegu-gu on February 21, 2005 from the head of the Gu on February 21, 2005 pursuant to Article 16 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Do Acts”), and obtained authorization for the establishment of a housing reconstruction project on November 4, 2005 from the owners of housing, commercial buildings, and land on the ground of 12,575 square meters (hereinafter “instant rearrangement zone”).

B. At the time of authorization for the establishment of the above reconstruction association, the land subject to the project in the rearrangement zone in this case is 12,575 square meters in total, and 86 owners. The number of the owners who agreed to the said reconstruction project exceeds 4/5 of the total number of owners as 70 persons, and the total area of the land owned by the owners who agreed to the reconstruction project exceeds 9,824 square meters in total, and exceeds 2/3 of the total area of the rearrangement zone in this case.

C. The Defendant, as the owner of each land listed in the separate sheet No. 1 (hereinafter collectively referred to as “instant real estate”) in the instant rearrangement zone, did not consent to the said reconstruction project.

D. Accordingly, on May 13, 2005, the Plaintiff sent a written peremptory notice to the Defendant in accordance with Article 48 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter “the Aggregate Buildings Act”) which applies mutatis mutandis pursuant to Article 39 of the Do Government Act (hereinafter “the Act”) to reply to whether the Plaintiff would participate in reconstruction following the rebuilding resolution (hereinafter “the peremptory notice of this case”).

E. The defendant did not reply to the consent of the above reconstruction project within two months from the date of receipt of the notice of this case. The plaintiff filed the lawsuit of this case on September 8, 2005, stating that he shall exercise the right to demand sale under Article 39 of the Do administration Act, and the copy of the complaint of this case was served on the defendant on October 10, 2005.

2. Relevant statutes;

Attached Table 2 is as indicated in the "relevant Acts and subordinate statutes".

3. The parties' assertion and judgment

A. The plaintiff's assertion and judgment

As a result of the Plaintiff’s lawful exercise of the right to demand sale under relevant statutes, such as the Do Government Act and the Multi-Family Building Act, the Plaintiff and the Defendant concluded a sales contract for the instant real estate. Therefore, the Defendant asserted that the Plaintiff had a duty to pay the price to the Plaintiff and to transfer the ownership of the instant real estate while receiving the payment from the Plaintiff

In light of the above facts, the plaintiff's exercise of the right to demand sale is in accordance with the requirements and procedures prescribed in Article 48 of the Multi-Family Building Act, which is applied mutatis mutandis by Article 39 of the Do governor Act, and thus, the plaintiff and the defendant entered into a sale contract with the amount equivalent to the market price of the real estate of this case on October 10, 2005, which is the date of delivery of a copy of the complaint of this case (hereinafter "sale of this case"). Thus, the defendant is obligated to pay the plaintiff the price equivalent to the market price of this case, and to transfer the ownership of this case to the plaintiff, and deliver the real estate of this case to the plaintiff, barring special circumstances.

B. Defendant’s assertion and judgment

(1) Invalidity of establishment resolution

In order to establish a housing reconstruction project association, the Defendant requires the consent of at least 4/5 of the size of land in the rearrangement zone as prescribed by Article 16(2) of the Do Government Act. However, in relation to the Plaintiff’s establishment resolution, the total area of land in the rearrangement zone in this case, among the total area of 12,575 square meters in relation to voting rights, is 9,824 square meters and the consent ratio is about 78.12% and lacks the above requirements. Thus, the above resolution is null and void, and the authorization to establish the Plaintiff in Daegu is also unlawful.

Article 16 (3) of the Do Government Act provides that "an area which is not a housing complex" shall obtain consent from owners of at least 2/3 of the size of land in an area which is not a housing complex, in relation to the requirements for the establishment resolution of a housing reconstruction project. Thus, if the whole improvement area of a reconstruction project corresponds to an area which is not a housing complex, it shall be determined whether the whole improvement area of the reconstruction project meets the quorum for rebuilding resolution pursuant to paragraph (2) of the same Article, not paragraph (2) of the same Article, and paragraph (3) of the same Article. According to the result of the fact-finding of the Daegu-gu Office of this Court, it is recognized that the improvement area of this case constitutes an area which is not a housing complex, and the total area of land owned by the owners of the above reconstruction project exceeds 2/3 of the whole area of the rearrangement zone of this case. Thus, the resolution of the plaintiff's establishment is valid under the above Do

(2) The assertion of deficiency in the requirements for the claim for sale

The defendant asserts that, since the notice of this case does not contain the contents of rebuilding resolution, the above notice does not meet the requirements stipulated in Article 48 of the Multi-Family Building Act which is applied mutatis mutandis by Article 39 of the Do governor Act, and the plaintiff's right to demand sale based thereon is also unlawful.

According to Article 39 of the Do Government Act, Article 48 (1) of the Do Government Act, Article 39 of the Do Government Act, and Article 48 (1) of the Do Government Act, the implementer of the reconstruction project shall notify the defendant to respond to whether to participate in the reconstruction only with the consent to the establishment of the association. According to Article 2 subparagraph 9 (b) of the Do Government Act, since "owner of land, etc." who is qualified as a partner of the reconstruction project is "owner of a building and its appurtenant land located within the rearrangement zone", it is impossible for a person who owns land or a building within the rearrangement zone to be a partner since he/she is not qualified from the beginning to participate in the reconstruction. Therefore, even under Article 39 of the Do Government Act, it is unnecessary that the defendant does not own only the land in the rearrangement zone in this case and is not entitled to participate in the reconstruction project. Accordingly, the plaintiff can immediately exercise his/her right to demand sale without the need to notify the defendant as to whether to participate in the reconstruction.

(3) Claim for the claim for redemption

The defendant, even if the sales contract of this case was established by the plaintiff's exercise of the right to demand sale, has exercised the right to demand redemption under Article 48 (6) of the Aggregate Buildings Act against the plaintiff, and therefore, the defendant cannot respond to the plaintiff'

The meaning of "seller" under Article 48 (6) of the Multi-Family Building Act is "person who has completed a sales contract" or "person who has entered into a sales contract" or "person who has entered into a sales contract", and since Article 48 (6) of the Multi-Family Building Act protects the real estate owner in a rearrangement zone that has not participated in reconstruction, the reason why the housing reconstruction project implementer has not commenced a long-term demolition construction should be interpreted favorably to the seller if the housing reconstruction project implementer is mainly responsible for the cause of the housing reconstruction project implementer's failure to commence a long-term demolition construction, such as the market price of the real estate without proving the purchase price, or to receive a registration of transfer of ownership from the seller, it is difficult to expect the seller's fulfillment of the seller's obligation under the principle of equity. In light of the fact that the housing reconstruction project is established by actively proving the market price of the real estate and, at the same time, it can be seen that the "person who has entered into a sales contract" under Article 48 (6) of the Multi-Family Building Act is "person who has completed a sales Contract".

As seen earlier, the fact that the sales contract of this case was concluded on October 10, 2005 by the Plaintiff’s request for sale and purchase constitutes “seller” under Article 48(6) of the Multi-Family Building Act. The fact that the Plaintiff did not commence at all the removal works on the building in the rearrangement zone until October 11, 2007 after the lapse of two years from the rebuilding consent date does not conflict between the parties, and the Plaintiff did not pay appraisal fees after filing an application for appraisal to prove the market price of the real estate in this case on January 5, 2006, and did not pay appraisal fees to the Plaintiff on the second date for pleading ( June 21, 2007) and delayed the lawsuit of this case for more than one year, and the Defendant did not receive the Plaintiff’s claim for redemption from the Plaintiff pursuant to Article 48(6) of the Multi-Family Building Act as to the fifth date for pleading ( October 18, 2007). Thus, the Plaintiff did not have any obligation to claim redemption as to the Plaintiff’s real estate in this case.

However, even if the Plaintiff is transferred the ownership of the instant real estate on the ground of the instant sale, it is again obligated to transfer the ownership to the Defendant on the ground of the said repurchase. Thus, the Plaintiff’s claim against the Defendant for the performance of the instant sale would cause the Defendant to repeat and bear an ambiguous procedure, and thus, it is not permissible in light of the principle of trust and good faith. Therefore, the Defendant’s defense has merit, and the Plaintiff’s assertion is therefore groundless

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Jin Sung-chul (Presiding Judge)