(영문) 수원지방법원 2020.2.6. 선고 2019구합63578 판결

1. The part of the management and disposition plan approved by the Defendant on June 12, 2019, which determined the Plaintiff as a cash clearing, shall be revoked.

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

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. The defendant is the housing redevelopment improvement project association established to implement the housing redevelopment improvement project (hereinafter referred to as the "maintenance project in this case") in the first place of a square registry of the area of 145,485 square registry of Guang City and 462 parcel of land, and the plaintiff is the owner of the land, etc. who owns two houses of the Doang-si D's red tide slive roof (hereinafter referred to as the "real estate in this case").

B. The Defendant was authorized to implement the project on April 11, 2018 from the Gosking market.

C. On April 24, 2018, the Defendant publicly announced the period for application for parcelling-out to the period from April 25, 2018 to June 8, 2018, and publicly announced the application for parcelling-out to the period from June 25, 2018, and publicly announced the extension of the period for application for parcelling-out to the period from May 30, 2018 to June 8, 2018.

D. On June 12, 2019, the Defendant obtained authorization of the management and disposition plan (hereinafter “instant management and disposition plan”) from the head of Eunpyeong-gu, the head of the Gu (hereinafter “the head of the Gu”).

E. The instant management and disposition plan is classified by the Plaintiff as the subject of cash settlement.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, 3, Gap evidence 4-1, 2, and Gap evidence 5, the purport of the whole pleadings

2. Whether the management and disposal plan of this case is legitimate

A. The plaintiff's assertion

According to Article 7(2) of the Articles of the Defendant Union’s articles of incorporation, the Defendant shall notify individual members of the matters concerning their rights and duties by registered mail, and where registered mail is returned, additional mail shall be issued only once. However, even though registered mail of the extension notice of the period for application for parcelling-out has been returned to the Plaintiff, the Defendant did not send additional mail. Accordingly, the part of the instant management and disposition plan that the Plaintiff was designated as the object of cash settlement is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

1) On April 24, 2018, the Defendant sent a notice of application for parcelling-out (from April 25, 2018 to May 29, 2018) by registered mail at the Manyang-gu, Ma, and 3 floors, where the Plaintiff’s domicile indicated in the instant real estate registry was known, which is the Plaintiff’s domicile. The notice was returned on April 27, 2018, and the Defendant sent it again by mail on May 2, 2018.

2) On June 8, 2018, the Defendant sent a notice of extension of the period for application for parcelling-out to the above address by registered mail to extend the period for application for parcelling-out by June 8, 2018, and this also returned on June 4, 2018, but the Defendant did not issue a notice of extension of the period for application for parcelling-out by ordinary mail.

3) On May 28, 2018, the Defendant published a notice for extension of the period of application for parcelling-out in the Internet bulletin board of the association, May 29, 2018, and in the F newspaper.

4) Meanwhile, on October 19, 2017, the Plaintiff transferred the instant real estate to the seat of the instant real estate (G, 2nd floor of the road name address).

4) As to the methods of notifying and announcing matters concerning rights and obligations and the rights and obligations of members, the Defendant’s articles of incorporation determines as follows:

Article 7 (Methods of Notice and Public Notice of Matters concerning Rights and Obligations) (1) A cooperative shall faithfully notify and publicly announce matters concerning the rights and obligations of its members (including changes; hereinafter the same shall apply) to its members and interested parties.2 The method of notice and public announcement referred to in paragraph (1) shall be as follows, except as otherwise provided for in this articles of association:

[Ground of recognition] Facts without dispute, Gap evidence 5, 6 evidence, Eul evidence 1 to 6, the purport of the whole pleadings

D. Determination

Article 72(1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents provides that "the project implementer shall notify the owner of the land, etc. of the period for application for parcelling-out within 120 days from the date the project implementation is announced. The procedure for notification of the period for application for parcelling-out under the above provision is to guarantee the owner of the land, etc. within the redevelopment area an opportunity for application for parcelling-out, and it is necessary to establish a management and disposal plan under Article 74(1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents. The redevelopment project implementer, who is the project implementer, shall be notified of the application for parcelling-out under the provisions of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents and the articles of association of the redevelopment project association established by the delegation of the Act.

Furthermore, pursuant to the delegation of Article 40(1)17 of the Urban Improvement Act and Article 38 subparag. 8 of the Enforcement Decree of the Act on the Maintenance of Urban Areas and Residential Environments, the Defendant’s articles of association, under Article 7(2)1 and 4 of the same Act, shall individually notify the union members of the matters concerning the rights and obligations of the union members by registered mail. If a registered mail is returned due to an unknown address or a refusal to receive the registered mail, it shall be sent by regular mail only once, and in such a case, the registered mail shall be deemed to have been notified on the date the registered mail was sent. The above articles of association shall be deemed to mean to recognize the validity of the said notification by sending the matters concerning the rights and obligations of the union members by registered mail at a lawful service place, such as the address of the union members (see Supreme Court Decision 2011Du2446, Nov. 13, 2014).

Considering the aforementioned legal principles and the facts acknowledged earlier and the purport of the entire pleadings, the part of the instant management and disposal plan, which determined the Plaintiff as the subject of cash settlement, is unlawful by failing to give the Plaintiff a legitimate notice of guidance on the procedures for application for parcelling-out, contrary to the Urban Improvement Act and the provisions of the Defendant’s Articles of Incorporation established by delegation.

(1) The period for application for parcelling-out extended under the proviso to Article 72 (2) of the Urban Improvement Act shall also fall under the period for application for parcelling-out as prescribed by Article 72 (1) 3 of the same Act, and the opportunity for application for parcelling-out shall also be guaranteed as much as the extended period for application for parcelling-out, and an extension of the period for application for parcelling-out shall be made as changes in the rights and obligations of the members prescribed by

(2) According to Article 72(1) of the Urban Improvement Act, a project implementer shall notify the owners of lands, etc. of the outlined details of charges, period for application for parcelling-out, and other matters prescribed by Presidential Decree, and publicly notify the details of sites or structures subject to parcelling-out in a daily newspaper published in the relevant area. As such, a project implementer is obligated to lawfully implement both notification and public announcement to the owners of lands, etc., and the public announcement is lawful, and cannot be deemed to have

③ Article 10(3) of the Defendant’s articles of incorporation provides that a partner shall bear any disadvantage arising therefrom if he/she fails to report the change of address. However, given that the notification of the application for parcelling-out to the owner of land, etc. is a very important procedure for the owner of the land, etc. to lose ownership of the land, etc. in the redevelopment project implemented compulsorily regardless of the intent of the owner of the land, etc., the decision of the application for parcelling-out should not be omitted. Thus, even if the Plaintiff neglected to report the change of address, it shall be deemed that the notification was made only by additional mail after the return of registered mail

① Ultimately, the Defendant’s failure to send additional notices to the Plaintiff by ordinary mail even though the notice of extension of the period for application for parcelling-out was returned to the Plaintiff is not properly guaranteed the Plaintiff’s right to choose whether to apply for parcelling-out and the procedure for the Plaintiff’s exercise of property rights, and its notification is not effective. Therefore, the Defendant violated the essential procedures for

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.