In case where there is a defect in the establishment of a reconstruction association which is a basic act or the legal nature of authorization for establishment of a reconstruction association, whether there is a legal interest in filing a lawsuit to nullify or nullify the cancellation or invalidity of the disposition of authorization by the supervisory authority on the ground of the failure or invalidity of a basic act

As prescribed by the Housing Construction Promotion Act, the authorization for establishment of a reconstruction association in the competent market, etc. is only a supplement to supplement the act of building a reconstruction association for reconstruction and to complete its legal effect. Therefore, if there is any defect in the act of establishing the association which is the basis of the authorization, the establishment of the association, which is a basic act, shall not be deemed valid even if there is such authorization. Therefore, if there is a defect only in the authorization disposition which is a legitimate and effective supplement but a supplementary act, the cancellation or invalidity of the authorization can be sought. However, if there is a defect in the establishment of the association which is a basic act, it shall not be said that there is a legal interest to seek the cancellation or invalidity of the authorization disposition by the supervisory authority on the ground of the failure or invalidity of the basic act.

Article 44 (1) of the Housing Construction Promotion Act, Article 1 of the Administrative Litigation Act / [general] Article 12, Article 35 of the Administrative Litigation Act

Supreme Court Decision 86Nu152 delivered on August 18, 1987 (Gong1987, 1472), Supreme Court Decision 90Nu1557 delivered on June 14, 1991 (Gong1991, 1939), Supreme Court Decision 92Nu15482 delivered on April 23, 1993 (Gong1993Ha, 1576), Supreme Court Decision 93Nu2753 delivered on October 14, 1994 (Gong194Ha, 302), Supreme Court Decision 95Nu738 delivered on December 12, 1995 (Gong196, 412)

Plaintiff

Ansan-si Market

The Housing Association for Re-building of tinwater 1 Dong main apartment

Seoul High Court Decision 98Nu1146 delivered on December 29, 1998

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

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

citing the reasoning of the judgment of the court of first instance, approval for establishment of a reconstruction association of the competent market, etc. pursuant to the Housing Construction Promotion Act is merely a supplement to complete its legal effect by supplementing the acts of establishing a reconstruction association conducted for reconstruction, so if there is any defect in its basic act of establishing the association, it shall not be deemed effective as an act of establishing the association, even if there is authorization. Therefore, if the basic act is lawful and effective, but there is a defect only in the approval disposition which is a supplementary act, the cancellation or invalidity of the approval can be sought. However, if there is a defect in the establishment of the association which is a basic act, it shall not be deemed that there is a legal interest to seek cancellation or invalidity of the approval disposition of the supervisory authority on the ground of the failure or invalidity of the basic act, and it shall not be deemed that there is a conflict in the legal reasoning of the judgment of the court below as to the act of establishing the housing association, and it shall not be justified in the misapprehension of legal principles as to the plaintiff's request for nullification of the basic act of establishing the housing association, and it cannot be accepted.

Therefore, the appeal of this case is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Seo-sung (Presiding Justice)