Plaintiff 1 and two others (Attorneys Choi Young-seok et al., Counsel for the plaintiff-appellant)

king New Zealand District Housing Redevelopment and Improvement Project Association (Law Firm Han & Han, Attorneys Park Il-young et al., Counsel for the plaintiff-appellant)

January 20, 2009

1. The part of the management and disposal plan authorized by the head of Seongdong-gu Seoul Metropolitan Government on July 31, 2008 that the defendant determined the plaintiffs as joint buyers shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

The following facts may be acknowledged by integrating the descriptions of evidence Nos. 1-1, 2, and 2-1, 2, 3, 3, 4, 1-1 through 4, 6-1, 2, and 7, and the whole purport of oral arguments.

A. On August 4, 2005, the Mayor of Seongdong-gu Seoul Special Metropolitan City designated and publicly announced as a rearrangement zone in Zone II of the Special Planning Zone II in the Class I district unit planning of the Seongdong-gu New Town (Seoul Metropolitan Government Number 1 omitted; hereinafter referred to as the “instant rearrangement zone”) as a district unit planning zone in the Seoul Special Planning Zone II (hereinafter referred to as the “Do Government Act”), which was publicly announced by the head of Seongdong-gu Seoul Special Metropolitan City public notice on August 4, 2005, and the Defendant completed the registration of incorporation of the housing redevelopment project in the instant rearrangement zone with the purpose of implementing the housing redevelopment project (hereinafter referred to as the “instant housing redevelopment project”).

B. On June 13, 1990, Plaintiff 2 newly constructed a multi-family house on the second floor of the sloping roof (sub-story, first floor, second floor, 80.8 square meters, each of 80.8 square meters; hereinafter “instant building”) on the ground in Seongdong-gu Seoul Metropolitan Government, the head of Seongdong-gu Seoul Metropolitan Government (hereinafter “instant land”) with a building permit granted from the head of Seongdong-gu Seoul Metropolitan Government on 1990, and entered the multi-family house in the general building register on January 28, 1991. Plaintiff 1 purchased each of the instant land and buildings from Plaintiff 2 on October 20, 202, and Plaintiff 3 obtained from Plaintiff 2 on October 26, 2002 each of the instant land and buildings, and completed the registration of co-ownership share based on co-ownership shares.

C. The Plaintiffs, based on the registration of co-ownership, applied for the conciliation prior to the filing of a lawsuit as a co-owned property partition case No. 2003No. 12, the Seoul District Court’s Dong Branch. Accordingly, on March 17, 2003, the said court prepared a protocol of conciliation with the following contents (including the contents determined or corrected on May 16, 2003).

1. The instant building is owned by Plaintiff 3 for the land of 80.88 square meters on the first floor; the second floor of 80.88 square meters is owned by Plaintiff 2; the land of 80.88 square meters on the second floor is owned by Plaintiff 1; and it is classified by each floor.

2. With respect to the land size of 80.88 square meters among the instant buildings, Plaintiff 2, in the name of Plaintiff 3, and Plaintiff 1, in relation to the land size of 80.88 square meters among the instant buildings, shall implement the procedures for the registration of transfer of ownership based on the settlement prior to the settlement on March 17, 2003, respectively.

3. On March 17, 2003, Plaintiff 2 entered into the registration procedure for transfer of ownership based on the settlement prior to the filing of the suit on March 17, 2003 with respect to each one-third portion of the instant land against Plaintiff 1 and 3.

D. Based on the above protocol on July 31, 2003, the plaintiffs were classified as an aggregate building with respect to the building of this case into each floor, and the first floor was divided into Plaintiff 3, Plaintiff 2, and Plaintiff 1, respectively, and Plaintiff 1, respectively.

E. From July 24, 2007 to September 1, 2007, the period for application for parcelling-out, the plaintiffs filed an application with the defendant for parcelling-out to the purport that "the building of this case constitutes multi-household houses with separate registration by each floor, and the building of this case is individually sold to each household," and the defendant established a management and disposal plan which includes the contents of the plaintiffs as one member of the apartment unit, and the head of Seongdong-gu Seoul Metropolitan Government approved the above management and disposal plan on July 22, 2008 (the part corresponding to the plaintiffs in the above management and disposal plan of this case is referred to as "the disposition of this case") on the ground that "the building ledger and the real estate registration injury are different from each other."

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The issue of whether an applicant for parcelling-out is the owner shall be based on the real estate register as of the base date of the management and disposal plan as stipulated in Article 23 subparagraph 4 of the Seoul Special Metropolitan City Ordinance on the Improvement of Urban and Residential Environments. Thus, even though the building of this case has not been converted into multi-household housing on the building ledger, the building of this case is not deemed one house, and in particular, Article 5 of the Addenda of the above Ordinance provides that the right to parcel out by household shall be granted only when the multi-household house is converted into multi-household housing on or before December 30, 203 and the registration of division is completed. Thus, the defendant's assertion demanding that the building ledger and the registration of injury coincide with each other does not have any grounds.

Therefore, the plaintiffs should be granted the right to sell the building of this case for which the registration of ownership transfer was made on each floor. Thus, the disposition of this case which decided the plaintiffs as joint buyers is unlawful.

(b) the relevant regulations;

Maintenance and Improvement of Urban Areas

Article 2 (Definitions)

The definitions of terms used in this Act shall be as follows:

9. The term “owner of land, etc.” means:

(a) In cases of a residential environment improvement project, housing redevelopment project, or urban environment rearrangement project, the owners or superficies of land or buildings located in a rearrangement zone;

Article 19 (Qualifications, etc. for Association Members)

(1) Members of a rearrangement project (excluding the rearrangement project implemented by the head of Si/Gun or the Korea Housing Corporation, etc.) shall be landowners, etc. (in the case of a housing reconstruction project, limited to the persons who have consented to the housing reconstruction project), but when the ownership and superficies of land or structures and superficies belong to several co-ownerships,

The Seoul Special Metropolitan City Ordinance on the Improvement of Urban and Residential Environments (amended by Ordinance No. 4550 of July 30, 2007)

Article 23 (Standards, etc. for Management and Disposal of Housing Redevelopment and Urban Environment Improvement Projects)

3. The size of the previous building shall be based on the building ledger for each building owned as of the base date of the management and disposal plan, but the area of the building constructed in violation of the Acts and subordinate statutes shall be excluded: Provided, That where the articles of association, etc. are separately determined, it may

4. Ownership of previous land, etc. shall be governed by the register of real estate (in cases of conversion of the project implementation method, the certificate of planned land substitution) as of the base date of the management and disposal plan: Provided, That in cases of existing unauthorized buildings, it shall be based on the existing unauthorized building verification center issued by the

Article 24 (Those, etc. Eligible for Sale of Housing Redevelopment Projects)

(1) Persons eligible for parcelling-out of multi-family housing constructed through a housing redevelopment project under Article 52 (1) 3 of the Decree shall be the owners of lands, etc. falling under any of the following subparagraphs as of the base

1. A person who owns a house (including an existing unauthorized building and a building actually used for residence) among the previous buildings;

(2) Where it falls under one of the following subparagraphs, several applicants for parcelling-out shall be regarded as one parcel out:

1. Where a detached house or multi-family house has been converted into a multi-household house after completion of the building;

3. Where several persons own one house or one parcel of land: Provided, That the same shall not apply to those persons whose share area of land prior to December 30, 2003 is in excess of the size as provided in subparagraph 1 of Article 25 of the Building Bylaws.

The Addenda

Article 5 (Transitional Measures for Sale)

Notwithstanding the provisions of Article 24 (2) 1, with respect to the house, the division registration of which has been completed by converting the exclusive or multi-family house into a multi-household house before December 30, 2003, a house with an exclusive area of not more than 60 square meters may be supplied, or rental house within the rearrangement zone may be supplied, and where the total area of residence of multi-household house exceeds 60 square meters, the provisions of

C. Determination

(1) According to the provisions of subparagraph 9 (a) of Article 2 and each subparagraph of Article 19 (1) of the Do Government Act, a partner of a rearrangement project shall be the owner or superficies of the land or building located in the rearrangement zone, but if the ownership and superficies of the land or building belong to two or more co-ownerships, one member representing such several persons shall be appointed.

In addition, Article 24 (1) 1 of the Seoul Special Metropolitan City Ordinance on the Improvement of Urban and Residential Environments (amended by Ordinance No. 4550 of July 30, 2007; hereinafter the "Ordinance of this case") provides that a person eligible for parcelling-out of multi-family housing constructed under a housing redevelopment project shall be a person who owns a house (existing unauthorized buildings and buildings actually used for residence) among the previous buildings as of the expiration date of the period for application for parcelling-out as of the management and disposal plan, among applicants for parcelling-out, and Article 24 (2) 1 of the same Ordinance provides that where a multi-family house is converted into a multi-household house after the completion of a building, several applicants for parcelling-out shall be deemed a person eligible for parcelling-out, and Article 5 of the Addenda (amended by Ordinance No. 4167 of December 30, 2003) of the same Ordinance provides that multi-household housing shall be converted into a multi-household house or multi-household housing before December 30, 2003.

(2) On April 31, 2003, the plaintiffs filed a separate registration by dividing the buildings of this case, which are real estate, into each floor, according to the protocol of protocol of protocol, but the fact that the building ledger is not converted into multi-family housing, but still registered in the general house ledger is still registered in the general house ledger (in order for the plaintiffs to register each building of this case on the collective building ledger, it is necessary to file an application for conversion into the building ledger with the head of Sungdong-gu Seoul Metropolitan Government and obtain permission in accordance with each provision of the Building Act and the regulations on the entry and management of the building ledger). As such, in cases where the indication of the registry and the registration on the register are inconsistent, the actual matters other than the legal relationship should be entered in the register (see Supreme Court Decision 94Da4615, Jun. 16, 1995; Supreme Court Decision 2000Da130, Jun. 16, 1995). The purport of the Addenda provision of this case is that the multi-household house should be converted into two or multi-household after completion.

Therefore, inasmuch as the Plaintiffs completed the registration of division by classifying the instant building into multi-household houses before December 30, 2003, the instant disposition against the Plaintiffs as co-owners on the ground that multi-family houses on the building ledger have not been converted into multi-household houses is unlawful.

3. Conclusion

Therefore, the plaintiffs' claim of this case is justified and it is so decided as per Disposition.

Judge Jeong Ho-sung (Presiding Judge)