Plaintiff 1 and one other (Attorneys Lee Han-woo et al., Counsel for the plaintiff-appellant)

The head of Seodaemun-gu Seoul Metropolitan Government (Law Firm LLC, Attorneys Kang Seo-young et al., Counsel for the defendant-appellant)

Hong City Housing Reconstruction and Improvement Project Association (Law Firm Lee, Attorneys Lee Lee-soo et al., Counsel for the plaintiff-appellant)

June 4, 2015

Seoul Administrative Court Decision 2013Guhap30353 decided August 14, 2014

1. Revocation of a judgment of the first instance;

2. On September 17, 2013, the Defendant’s disposition to authorize the establishment of the first house reconstruction project association to establish the first house reconstruction project association is revoked.

3. Of the total litigation cost, the part arising between the plaintiffs and the defendant is borne by the defendant, and the part arising from the participation by the defendant is borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

The reasoning of this court is that the committee of promotion of this case is identical to the corresponding part of the judgment of the first instance except for the corresponding part of the judgment of the second instance (from 12th to 3th 16th eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth e.g

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The reasoning for this Court’s explanation is as follows, and the corresponding part of the judgment of the court of first instance (from 3th to 9th 1th eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth e) is as follows.

The part of the 6th judgment of the first instance court from 16th to 19th judgment is as follows.

[1] At the time of the instant disposition, the Defendant calculated the number of landowners in the instant rearrangement zone as 22, and calculated that the number of owners of land, etc. in the instant rearrangement zone is 132. However, 23 landowners in the instant rearrangement zone and the total number of owners of land, etc. included in the Intervenor Association is 132 and 133.

The part of the first instance court's 6th instance court's 20 to 7th instance court's 1st instance court's 20th instance court's 1th instance

【B ( Address 2 omitted) In the case of land and buildings on its ground, a copy of the resident registration certificate that is not Nonparty 4’s seal impression seal impression is affixed to the written consent, and is null and void. In the case of ( Address 5 omitted, the consent shall be excluded from the number of consenters, since the consent is accompanied by a copy of the resident registration certificate that is not the owner Nonparty 5’s seal impression seal impression, and it is null and void because the copy of the resident registration certificate that

○ The following shall be added to the first sentence of the first instance judgment of the first instance.

( Address 4 omitted) The land is owned by Nonparty 3, Nonparty 6, and Nonparty 7. The land ( Address 5 omitted) is owned by Nonparty 2, Nonparty 7, and Nonparty 6. According to Article 17(1) of the Act on the Improvement of Urban Areas and Dwelling Conditions as amended on February 1, 2012, in order to consent to establish an association, the written consent shall be sealed and signed, and a copy of the identification certificate shall be attached to the resident registration certificate. However, the written consent submitted by Nonparty 6 on each of the above ( Address 4 omitted) and ( Address 5 omitted) shall be signed and sealed, and it is invalid because the written consent submitted by Nonparty 6 is accompanied by a written application for issuance of a resident registration certificate, other than a copy of the identification certificate.

이 사건 추진위원회가 2013. 5. 2. 이 사건 창립총회를 개최하기 이전에 도시정비법 제14조 제3항 , 도시정비법 시행령 제22조의2 제1항 에 따라 도시정비법 제16조 제3항 에 의한 토지 또는 건축물 소유자의 4분의 3 이상 및 토지면적의 3분의 2 이상의 토지소유자의 동의를 얻어야 하고, 위 동의는 모두 유효하여야 한다. 그런데 ㉠ (주소 2 생략) 토지에 관한 소외 4의 동의서, ㉡ (주소 6 생략) 토지에 관한 소외 8, 소외 9, 소외 10, 소외 11의 동의서, ㉢ (주소 7 생략) 토지에 관한 소외 12의 동의서, ㉣ (주소 8 생략) 토지에 관한 소외 13, 소외 14, 소외 15의 동의서, ㉤ (주소 9 생략) 토지에 관한 소외 16, 소외 17, 소외 18, 소외 19의 동의서, ㉥ (주소 10 생략)에 관한 소외 20, 소외 21의 동의서, ㉦ (주소 11 생략) 토지에 관한 소외 22, 소외 23, 소외 24, 소외 25의 동의서, ㉧ (주소 5 생략)에 관한 소외 5의 동의서 등의 경우 그 작성일자가 기재되어 있지 않아 위 각 동의서가 이 사건 창립총회 개최일인 2013. 5. 2. 이전에 제출되었음을 인정할 증거가 없고, ㉨ (주소 13 생략)에 관한 소외 27의 동의서는 이 사건 창립총회 개최일 이후인 2013. 7. 18. 제출되었으므로 위 각 토지에 관한 동의서는 이 사건 창립총회 당시 제출된 동의서에 포함되어서는 안 된다. 따라서 위 9명의 동의서가 이 사건 창립총회 개최일 이전에 유효하게 제출되었음을 전제로 한 이 사건 창립총회는 무효이고, 이에 기한 이 사건 인가처분 역시 그 하자가 있어 취소되어야 한다.】

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

This Court's explanation is the same as the corresponding part of the judgment of the first instance except that the part "9.16%" of the 11th judgment of the court of first instance is "50.11%" of the 50.11% of the 11th judgment of the court of first instance, and therefore, it shall be quoted in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

D. Determination

1) As to the first or fifth argument

This Court's explanation is the same as the corresponding part of the judgment of the court of first instance (from 14th to 21th page), and therefore, this Court's explanation is accepted in accordance with Article 8 (2) of the Administrative Litigation Act, Article 420 of the Civil Procedure Act, and Article 420 of the Civil Procedure Act.

2) As to the fifth argument

This Court's explanation is identical to the corresponding part of the judgment of the first instance except for the dismissal of some contents and addition of some contents as follows. Thus, this Court's explanation is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

○ Parts 4 to 22 of the first instance court's decision No. 21 of the first instance court's decision are as follows.

1) As to the argument

In full view of the purport of the argument in Gap evidence No. 4, the defendant can recognize the fact that at the time of the disposition of this case, 22 landowners, 2 building owners, 108 landowners, etc. in the rearrangement zone at the time of the disposition of this case are calculated by 132 persons (=22 +2 +108 persons).

However, comprehensively taking account of the written evidence Nos. 48 and 49, the following facts are acknowledged: 108 owners of land and buildings in the instant rearrangement zone, 3 owners of State and public land (Korea, Seoul, Seoul, and Seodaemun-gu), 20 landowners, 20 building owners, and 133 owners of land, etc. in the instant rearrangement zone (=108 + 3 + 20 + 20).

The Intervenor Association asserts that when calculating the total number of the owners of land, etc. as Nonparty 1’s whereabouts is unknown, it is lawful to exclude the number of owners of land, etc. from the number of owners of land, etc. under Article 28(1)4 of the Enforcement Decree of the Act on the Maintenance of Urban Areas and Dwelling Conditions for Residents. In full view of the purport of the entire pleadings, the Intervenor Association’s assertion that ( Address 1 omitted) land is owned by three persons, including Nonparty 1, Nonparty 2, and Nonparty 3. However, the Intervenor did not indicate Nonparty 1’s resident registration number in the copy of the register and the forestry register of the land. However, Nonparty 1’s assertion that Nonparty 1’s land owner and Nonparty 8 were not identified as Nonparty 1’s resident registration number in Seoul Western District Court 2014 3095, and Nonparty 1’s land owner and Nonparty 1’s notification of the date for filing a request for ownership transfer registration is not confirmed, and the Plaintiff association’s remaining number of land owners can be found to be determined as the Plaintiff 13.

B) As to the argument

(1) Article 17(1) of the Act provides that the method of consent of the owners of land, etc. shall be determined by the method of written consent using a certificate of seal impression and attaching a certificate of seal impression. Upon amendment by Act No. 11293, Feb. 1, 2012, a copy of the identification card is attached instead of the certificate of seal impression, and the written consent shall be sealed and signed in writing. Article 4 of the Addenda provides that the same provision applies from the first time after the enforcement of the Act on the Improvement of Urban Areas and Dwelling Conditions (amended by Act No. 11293, Aug. 2, 2012). Therefore, if consent is obtained from the owners of land, etc. before August 2, 2012, the method of written consent using a certificate of seal impression should be attached, and if consent is obtained from the owners of land, etc. after August 2, 2012, it shall be deemed that the method of consent by the owners of land, etc. and the copy of a written consent by the signature.

In full view of the written evidence Nos. 51 and 71 as to the instant case and the testimony of Nonparty 4 and Nonparty 5, the following facts are acknowledged: (a) the consent submitted by Nonparty 4, the owner of the land, submitted by Nonparty 4, signed with Nonparty 4; (b) the copy of Nonparty 4’s resident registration certificate was attached; (c) Nonparty 5’s obstacle and signature were affixed to the consent submitted by Nonparty 5, the owner of the land; and (d) Nonparty 4 and Nonparty 5 were attached with the copy of Nonparty 5’s resident registration certificate; and (e) Nonparty 5’s written consent form (Evidence No. 51 and evidence No. 71) was attached to the instant promotion committee around March 2013; and (e) Nonparty 4 and Nonparty 5 signed the written consent form of Nonparty 4 and Nonparty 5’s written consent from Nonparty 5, respectively; and therefore, (e) Nonparty 4 and Nonparty 5’s written consent form applied to the consent form of the Plaintiff’s consent on August 231, 201, 201.

The part of the first instance court's 25th 21th to 26th 4th eth eth ethic is as follows.

(E) As to the Plaintiff’s assertion

In full view of the purport of the arguments in Gap's evidence Nos. 4, 48, 49, and evidence Nos. 64-1 through 3, the defendant calculated the number of landowners excluding the state-owned and public land owners, and calculated the number of consenters 10. The number of landowners excluding the state-owned and public land owners is 20, and the number of consenters excluding the state-owned and public land owners is 11, among the co-owners of each land ( Address 14 omitted), and ( Address 15 omitted) the non-party 30 among the co-owners of each land is not submitted a written consent. According to the above facts, the defendant's disposition of this case in this case is without merit, the non-party 28, the non-party 29, the non-party 30 among the co-owners of each land, and the non-party 30 of the non-party 15 omitted.

H) As to the argument

In full view of the overall purport of the pleadings in the statement No. 65, No. 65, and No. 4, Nonparty 32, the owner of the land, is recognized as having submitted a written consent accompanied by the certificate of seal imprint affixed to the Promotion Committee of this case as of March 25, 201 and the certificate of seal imprint issued on the same day. Thus, the defendant's measures calculated as the consent holder of Nonparty 32 are lawful, and the plaintiffs' assertion in this part is without merit).

○ The following shall be added to the fourth sentence of the first instance court Decision 26:

(i) As to the argument

The purport of requiring the consent of the owners of land and others to establish a redevelopment association under the former Urban Improvement Act (amended by Act No. 8785 of Dec. 21, 2007), and submission of written consent to the competent administrative agency at the time of applying for authorization to establish a redevelopment association is to prevent disputes between related persons who may arise regarding the consent by clarifying the consent of owners of land and others, and further to prevent unnecessary administrative power from being consumed by the consent requirement of the redevelopment association only by the consent submitted at the time of applying for authorization to establish a redevelopment association. Accordingly, the administrative agency, upon receipt of an application for authorization to establish a redevelopment association, shall arbitrarily process a copy of the written consent, such as a signature and seal affixed by the former Enforcement Decree of the Act on the Maintenance of Urban Areas (amended by Presidential Decree No. 21171 of Dec. 17, 2008; see Article 26(1) of the Act on the Maintenance of Urban Areas and Dwelling Conditions (amended by Presidential Decree No. 2010 of Dec. 17, 2008).

In this case, comprehensively taking account of the purport of the entire arguments in the statement Nos. 48 and 49, and Nos. 72-1 and 2, the following facts are acknowledged: (a) land is owned by Nonparty 3, Nonparty 6, and Nonparty 7; (b) land is owned by Nonparty 2, Nonparty 7, and Nonparty 6; (c) no representative member appointment appointment appointment is made between the consenters on each of the above ( Address 4 omitted) and ( Address 5 omitted); and (d) Nonparty 6 did not affix a signature and seal on each of the above ( Address 4 omitted) and each of the above ( Address 5 omitted) consent forms and forms submitted by the owners of land, etc. before establishing the association. In full view of the above recognized facts and the legal principles on the consent forms and forms submitted by the owners of land, etc., Nonparty 6 arbitrarily omitted the consent forms on each of the above ( Address 4 omitted and address 5 omitted); and thus, the Plaintiffs’ consent to the establishment of the association cannot be deemed null and void.

(j) As to the argument

갑 제51호증, 갑 제52호증의 2 내지 5, 갑 제53호증의 2 내지 4, 갑 제54호증의 2 내지 4, 갑 제57호증의 1 내지 3, 갑 제58호증의 2 내지 4, 갑 제71, 73호증, 을나 제1호증의 기재에 변론 전체의 취지를 종합하면, (주소 2 생략), (주소 6 생략), (주소 7 생략), (주소 8 생략), (주소 9 생략), (주소 10 생략), (주소 11 생략), (주소 5 생략)의 각 토지에 관한 각 동의서에 소외 9, 소외 25를 제외한 나머지 토지등소유자들은 날짜를 기재하지 아니한 사실, 그러나 이 사건 창립총회 참석자 명부에 ㉠ (주소 2 생략) 토지에 관하여 소외 4가 조합설립에 동의하였고, 창립총회에 동의서를 제출하였으며, 창립총회에 직접 참석한 것으로 기재되어 있는 사실, ㉡ (주소 6 생략) 토지에 관하여 소외 8이 대표자로 선임되었고, 조합설립에 동의하였으며, 창립총회에 동의서를 제출하였고, 창립총회에 직접 참석한 것으로 기재되어 있는 사실, ㉢ (주소 7 생략) 토지에 관하여 소외 12가 조합설립에 동의하였고, 창립총회에 동의서를 제출한 것으로 기재되어 있는 사실, ㉣ (주소 8 생략) 토지에 관하여 소외 13이 대표로 선출되었고, 조합설립에 동의한 것으로 기재되어 있는 사실, ㉤ (주소 9 생략) 토지에 관하여 소외 16이 대표로 선출되었고, 조합설립에 동의하였으며, 창립총회에 동의서를 제출한 것으로 기재되어 있는 사실, ㉥ (주소 10 생략)에 관하여 소외 20이 조합설립에 동의하였고, 창립총회에 동의서를 제출한 것으로 기재되어 있는 사실, ㉦ (주소 11 생략) 토지에 관하여 소외 22가 대표로 선출되었고, 조합설립에 동의하였으며, 창립총회에 동의서를 제출한 것으로 기재되어 있는 사실, ㉧ (주소 5 생략)에 관하여 소외 5가 조합설립에 동의한 것으로 기재되어 있는 사실, 한편, (주소 10 생략) 토지에 관하여 소외 20이 대표자로 선출된 사실 등을 인정할 수 있다. 위 인정사실에 의하면 (주소 2 생략), (주소 6 생략), (주소 7 생략), (주소 8 생략), (주소 9 생략), (주소 10 생략), (주소 11 생략), (주소 5 생략)의 각 토지에 관하여 그 토지등소유자인 소외 4, 소외 8, 소외 12, 소외 13, 소외 16, 소외 20, 소외 22, 소외 5 등이 대표 또는 단독소유자로서 이 사건 창립총회 이전에 조합설립에 동의한 것으로 봄이 타당하므로 이 부분에 관한 원고들의 주장은 이유 없고, 다만, 갑 제14호증의 기재에 의하면, (주소 13 생략)에 관한 소외 27의 동의서가 이 사건 창립총회 개최일 이후인 2013. 7. 18. 제출되었음을 인정할 수 있으나, 뒤에서 보는 바와 같이 이 사건 인가처분이 동의율 산정의 위법을 이유로 취소되는 이상 이 사건 창립총회 개최의 무효 여부는 따로 판단하지 아니한다.

(k) Whether the State (Ministry of Land, Transport and Maritime Affairs) consents

The Intervenor Union asserts that the consent should be recognized because the state does not explicitly express objection to the land ( Address 16 omitted) and ( Address 17 omitted) within the rearrangement zone in this case owned by the State (Ministry of Land, Transport and Maritime Affairs).

In light of the fact that the State and local governments are granted various public authority and roles in relation to the implementation of rearrangement projects and that the competent government and local governments are obliged to support rearrangement projects and to cooperate in the implementation of projects for the realization of public welfare, etc., if a local government representing the competent government and the competent government which authorized the establishment of the relevant rearrangement project association owns land in the rearrangement zone, the local government can be deemed to have consented to the establishment of the relevant rearrangement project association through the disposition of authorization to establish the association. In addition, if the State or local government, as the representative of the rearrangement zone, owns State or public land in the rearrangement zone, through consultation procedures, etc. during the process of consultation from the formulation of the master plan for rearrangement and the designation of the rearrangement zone to the specific disposition of authorization to establish the rearrangement zone, if the State or local government did not explicitly express or oppose the relevant rearrangement project itself or the project implementation by the relevant rearrangement project association, it shall be deemed that the State or local government consented to the establishment of the relevant rearrangement project association by the authorization of the competent

The State (Ministry of Land, Transport and Maritime Affairs) may be deemed to have consented to the establishment of an intervenor association, on the ground that no reason exists to deem that the State owned each land in the health zone, ( Address 16 omitted), ( Address 17 omitted), and ( Address 17 omitted) explicitly expressed or opposed the project promotion by the intervenor association up to the disposition of the instant authorization to establish the intervenor association. Accordingly, the State (Ministry of Land, Transport and Maritime Affairs) shall accept the assertion of the intervenor association, and shall add one person from the number of consenters calculated at the

○ Parts 5 to 9 of the first instance court Decision No. 26 are as follows.

(l) Whether the agreement rate is satisfied for the establishment of a housing reconstruction association

As seen earlier, the Defendant calculated that 101 of the owners of land or buildings within the rearrangement zone at the time of the instant disposition is the consent of 132 owners of land or buildings within the rearrangement zone. However, as seen earlier, 101 owners of land, etc. within the rearrangement zone of this case, including the State (Ministry of Land, Transport and Maritime Affairs), with the exception of Nonparty 26 and Nonparty 62 among the 101 persons deemed to be the consent of the Defendant, 9 persons (=101 - 3 persons + 1) have agreed, and the consent ratio is merely 74.43%. Accordingly, the consent ratio is merely 74.43%.

3) Sub-determination

Ultimately, in filing an application for approving the establishment of an intervenor association with the Defendant, the Intervenor did not obtain the consent of at least 75% of the owners of the land, etc., which is necessary for establishing an association under Article 16(3) of the Urban Improvement Act, but the Defendant erred in calculating the consent rate, thereby allowing the Intervenor’s association to be deemed as meeting the requirements for establishing an association under the Urban Improvement Act, and thus, the instant disposition was unlawful.

3. Conclusion

Therefore, the plaintiffs' claims shall be accepted with due reason, and the judgment of the court of first instance is unfair with different conclusions, so the appeal of the plaintiffs shall be accepted, and the judgment of the court of first instance shall be revoked, and the disposition of this case shall be revoked as per Disposition.

[Attachment]

Judges fixed-type (Presiding Judge) and Gangnam-gu, Gangnam-gu