(영문) 서울고등법원 2017.10. 31. 선고 2016나2084673 제28민사부 판결

The decision of the first instance court is revoked. In the first instance court, it is confirmed that the application for collective land substitution made by the CJ (hereinafter referred to as the "family member of this case") on the real estate listed in the annexed Table 1 (hereinafter referred to as the "real estate of this case") is null and void. In the first instance, it is confirmed that the application for collective land substitution as stated in the primary claim was withdrawn by the plaintiff on October 27, 2015 from the request for the withdrawal of collective land substitution application made by the defendant on October 27, 2015.

Reasons

1. Basic facts

This Court's explanation is the same as the corresponding part of the judgment of the court of first instance, except where it is necessary to specify the number next to the "including each number" of No. 7 of the judgment of the court of first instance, No. 15 of the judgment of the court of first instance, since it is the same as the corresponding part of the judgment of the court of first instance.

2. Determination on the defense prior to the merits

A. The defendant's main defense

1) Summary of defense of violation of jurisdiction

The defendant is an urban development project partnership under the Urban Development Act, which is an urban development project partnership under the public law, and the lawsuit against the defendant, who is an urban development project partnership, disputes the validity, etc. of a collective land substitution application against the defendant is about the legal relationship under public law, which directly affects the illegality of the administrative disposition according to the result of the lawsuit, due to the lawsuit concerning the existence or validity of procedural requirements leading to the preparation of the land substitution plan and the designation of land substitution plan or the disposition of land substitution in accordance with the land substitution plan, or the disposition of land substitution. The lawsuit concerning such legal relationship under public law falls under the substantive party lawsuit under Article 3 subparagraph 2 of the Administrative Litigation Act. Therefore, the lawsuit in this case is exclusively an administrative court having jurisdiction over the defendant's location, and it shall be transferred to the competent court. However, since the lawsuit in this case is clearly dismissed for the following reasons, the lawsuit in this case shall be dismissed.

2) Summary of defense that no legal interest exists

The Defendant is prepared to prepare a replotting plan while promoting the instant urban development project;

As such, the Plaintiff’s application for collective land substitution does not affect the legal status of the Plaintiff even before the land owner receives the application for collective land substitution from the land owner. Since the rights and obligations of the land owner, etc. are changed due to the designation of land substitution or the disposition of land substitution, the Plaintiff may file an appeal against the aforementioned disposition on the ground of illegality in filing the application for collective land substitution. As such, the lawsuit seeking confirmation of invalidity, etc. of the instant disposition is unlawful as it does not

B.1 Determination on the defense of the violation of jurisdiction

A lawsuit against a reconstruction association, which is an administrative body, disputes the validity, etc. of the resolution of the general meeting of the association on the management and disposal plan is related to the legal relationship under public law, which directly affects the illegality of administrative disposition according to the result of the lawsuit (see, e.g., Supreme Court en banc Decision 2007Da2428, Sept. 17, 2009). Meanwhile, just because the redevelopment association under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents is a public law person, the legal relationship on the appointment, dismissal, etc. between the redevelopment association, the partnership head, or the partnership executives under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents falls under the legal relationship under public law, or the legal relationship on the appointment, dismissal, etc. between the redevelopment association head, partnership head, or partnership executives cannot be deemed as falling under the legal relationship under public law. Thus, the legal relationship on the appointment, appointment, etc. between the redevelopment association head, partnership head, or partnership executives cannot be deemed as falling under the legal relationship under public law.

Examining the following circumstances in light of the above legal principles, the instant lawsuit seeking confirmation of invalidity of the expression of collective land substitution application against the Defendant, a partner of an urban development project, cannot be deemed as constituting a party litigation under public law. Accordingly, the Defendant’s defense is without merit.

A) Even if a landowner applied for a collective land substitution, an urban development project association is not obligated to designate a collective land substitution to the landowner, but can designate a collective land substitution as prescribed by the rules, the articles of association, or the implementation rules for the land planned for the purpose of constructing a collective building on which the land for which the landowner does not apply for a collective land substitution is allowed, as well as for the land which is planned for the purpose of constructing a collective building on the land for which the landowner does not apply for a collective land substitution. Therefore, it is difficult to view that a lawsuit claiming the effect of a collective land substitution by a landowner is a lawsuit on whether a lawsuit falls under an administrative disposition, or whether there exists or not the procedural requirements leading to the periodic land substitution or the land substitution disposition, which directly affects the illegality of the administrative disposition, depending on the outcome of the lawsuit.

B) If it is interpreted differently, the expression of intent of a collective land substitution application should be asserted as an unlawful cause for the land substitution, which is the public interest and collective legal nature of an urban development project, in that the landowner who disputes the expression of intent of a collective land substitution application is bound to dispute the designated land substitution application or the land substitution disposition, and thus, cannot resolve the dispute promptly. In addition, from the standpoint of other land owners or an urban development project association, if the dispute over the validity of a collective land substitution application is cited and the land substitution disposition or the land substitution disposition is unlawful, it is inconsistent with the public interest and collective legal nature of an urban development project in that it is necessary to newly prepare a land substitution plan and again make a land substitution disposition or a land substitution disposition.

C) The “litigation” under the latter part of Article 3 subparag. 2 of the Administrative Litigation Act is an action in relation to other legal relations under public law and refers to the actual party litigation. However, a landowner’s collective land substitution application is an unilateral declaration of intent against an urban development project association, and it cannot be deemed that the legal relationship under public law is formed, such as where an urban development project association explicitly expresses its intent to designate a collective land substitution to the relevant land owner (only there is possibility that a land owner may be designated as a collective land substitution). Therefore, allowing an urban development project association to file a lawsuit against the land owner for the invalidation of the declaration of intent of collective land substitution application as a party litigation under public law (if a party lawsuit is allowed under public law, a dispute over the declaration of intent, such as various applications to an administrative agency, becomes an area of a party litigation in public law). Rather, a legal dispute over the validity of a landowner’s collective land substitution application appears to be a part of a lawsuit under civil law, and such dispute is reasonable in view of the nature of a dispute arising from civil litigation.

2) Determination as to the defense that there is no interest in a lawsuit

In light of the following circumstances, which can be acknowledged by comprehensively taking account of the facts and the purport of the entire arguments as seen earlier, the application for collective land substitution in this case resulted in present apprehensions and risks in the Plaintiff’s legal status, and the Plaintiff need to immediately confirm the legal relationship by the action for confirmation of invalidation, etc. in order to remove this, and it also becomes the most effective and appropriate means. Therefore, the Defendant’s defense is groundless for the benefit of confirmation.

A) The former Enforcement Rule of the Urban Development Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 428 on December 30, 201)

Article 27 (6) of the Act provides that "A project implementer may designate a land planned for the purpose of constructing a building to which the Act on Ownership and Management of Condominium Buildings is applied in accordance with a land use plan under Article 5 (1) 7 of the Act, as a group upon application by the land owner, in accordance with the rules, articles of incorporation, or implementation rules." The former Urban Development Service Guidelines (established by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 2009-349, Aug. 21, 2009; hereinafter the same shall apply) delegated by the project implementer provides that "the proposer or project implementer shall give written notice to the land owner within the development zone within a period of 60 days prior to the formulation of the development plan so that the land owner may apply for the designation of a group of land," and "the implementer may select a group of land subject to the designation according to the method of land substitution where the area applied for under the provisions of 4-3-2."

Article 27 (9) of the current Enforcement Rule of the Urban Development Act provides that "the implementer may designate a substitute lot for the land planned for the purpose of constructing a building falling under the Act on Ownership and Management of Condominium Buildings at the request of two or more landowners," and the Urban Development Business Guidelines delegated under paragraph (14) of the same Article provides for collective replotting in Chapter 3 and provides for collective replotting in Chapter 4-3-2, "the implementer shall notify in writing the landowner within the development zone of such designation within a fixed period of not more than 60 days before the preparation of the replotting plan so that the landowner may apply for the designation of collective replotting and shall receive the application" and 4-3-3.

B) As above, the Urban Development Act requires land owners to make collective land substitution upon application.

It is reasonable to view that the Urban Development Act is an exception to the principle of ‘individual land substitution' as stipulated by the Ordinance of the Ministry of Land, Infrastructure and Transport so that the landowner's consent can be obtained in the way of applying for collective land substitution.

In light of the above legislative intent of the application for collective land substitution, it is interpreted that an urban development project implementer, such as the defendant, has the duty to designate collective land substitution only to the land owner who applied for collective land substitution (i.e., the duty to not designate collective land substitution to the land owner who did not apply for collective land substitution).

C) Article 39(2) of the Defendant’s Articles of incorporation provides that “If the construction of multi-family housing is not smooth due to the delay between landowners, a project implementer shall make land that does not consent with the consent of at least 2/3 of the collective land substitution area by demarcated land and the consent of at least 1/2 of the number of landowners shall be made smooth in using the land by changing the land from the designated location of the land substitution to the settlement of money.” This provision provides that “If a collective land substitution plan is formulated following a collective land substitution application or after an administrative disposition is issued, the land owner who received a collective land substitution is not an individual land substitution, and in reality, where a collective land substitution is completed, not an individual land substitution is sold to a multi-family housing project implementer due to the economic burden of the implementation of a multi-family housing project, and is placed in a position similar to a money liquidation agent who is not subject to

D) As such, the Defendant’s application for collective land substitution is bound by the application and the application is determined differently as to whether individual land substitution should be made to the interested parties or not, and whether land substitution should be made in any way among individual land substitutions and collective land substitutions at the land entry place is a big legal relationship.

In addition, the land owner who has filed a collective land substitution application at the stage of designation of a land substitution or a land substitution disposition under the Urban Development Act cannot be allowed to make an individual land substitution at will (However, as seen earlier, if the area of rights of applicants for collective land substitution exceeds the area of land subject to collective land substitution, the area of rights can be selected in order of high area of land subject to collective land substitution, so that a collective land substitution application is not received

E) Under the interpretation of the current law, a land substitution plan itself is not deemed to be a disposition. Even if a project implementer conducts a land substitution plan after completion of construction for the whole of a land substitution plan and takes effect once a land substitution plan becomes effective, the land substitution plan does not become null and void as a matter of course, so the entire land substitution plan does not necessarily become null and void even after the final and conclusive land substitution for other parts. However, if there is an error in a land substitution plan, only a part of the land substitution plan shall be removed, unless it is re-issued from the beginning, and there is no way to determine the existence of legal relationship or seek compensation for damages in accordance with civil procedures on the ground that there is an error in a land substitution plan, and there is no legal interest in seeking revocation or nullification of part of the land substitution plan (see, e.g., Supreme Court Decisions 84Nu446, Apr. 23, 198; 8Nu2557, Sept. 25, 190; 91Nu1728, Jun. 26, 1992).

3. Judgment as to the main claim

A. The plaintiff's assertion

1) There is a procedural defect that does not go through the resolution of the general assembly of the instant clan

For the following reasons, the application for collective land substitution in this case is null and void due to procedural defects, etc. in the resolution of the general assembly of the clan.

A) The instant collective land substitution application was made without the resolution of the general meeting of the clan with respect to the instant real estate, which is the collective property of the clan.

B) It cannot be deemed that there was a legitimate resolution since the resolution on the "land development consent" adopted at the general meeting of the clan of this case on June 6, 2007 by the general meeting of the clan of this case did not obtain the consent of a majority of the quorum.

C) Since L caused the instant collective land substitution application to an individual who is not the representative of the instant species, it cannot be deemed that the instant clan applied for collective land substitution.

2) The Defendant already sold the land subject to collective land substitution so that collective land substitution is impossible.

For the following reasons, it was impossible for the Defendant to make collective land substitution to the Plaintiff, and the instant collective land substitution application is null and void.

A) In general, an urban development project cooperative imposes conditions on the purport that “a collective housing project implementer shall apply for collective land substitution under the condition that the project implementer consents to sale or joint execution,” in receipt of an application for collective land substitution from the landowner. However, the Defendant did not add the above conditions upon receipt of the instant collective land substitution application. As such, the Defendant is obliged to grant collective land substitution so that collective land applicants may directly construct multi-family housing.

However, as in the instant purchase and sale reservation, the Defendant has already sold the land for common housing within the instant urban development project zone and is running apartment bamboo projects by the buyers. Accordingly, it is impossible for the Defendant, including the Plaintiff, to collectively substitute land as a multi-family housing site, so the instant collective land substitution application is null and void.

B) Since land allotted by the authorities in recompense for development outlay is determined through the procedure of preparation and authorization of a land substitution plan, sale of land allotted by the authorities in recompense for development outlay can also be conducted after the land substitution plan is authorized and the land substitution is designated. The Defendant violated the Urban Development Act and subordinate statutes before the land substitution plan is authorized. Accordingly, the instant

C) Since the Defendant sold multi-family housing land to be designated as a collective land substitution as well as land secured by the recompense for development outlay, it became impossible to collectively substitute land, the instant collective land substitution application is null and void.

3) A significant change occurs in the development plan of the urban development project of this case

Since a significant change occurred in the land size of multi-family housing in the instant urban development company development plan due to the instant general meeting resolution following the application for collective land substitution, the previous development plan is null and void. Accordingly, the application for collective land substitution is null and void.

B. Determination

1) Whether there is a procedural defect in the process without the resolution of the general meeting of a clan

A) First, we examine whether the instant real estate was applied for collective land substitution without a resolution of the general assembly of the clans.

(1) The term "management and disposal of collective property" under Articles 275 and 276 (1) of the Civil Act refers to legal and factual acts concerning collective ownership property itself, and acts of use and improvement. Thus, simple act of bearing debts shall not be deemed an act of management and disposal of collective ownership (see, e.g., Supreme Court en banc Decision 2004Da60072, 60089, Apr. 19, 2007). Meanwhile, since the property owned by a clan belongs to collective ownership of members of the clan, if it is stipulated in the clan regulations, it shall be followed, and unless there is a clan regulations regarding such acts, it shall not be deemed that the management and disposal of collective ownership is a disposition of collective ownership.

Since the resolution of the general meeting is required, even though the disposition of clan properties by the representative of a clan is deemed null and void without going through such procedures (see, e.g., Supreme Court Decision 2000Da22881, Oct. 27, 2000).

(2) Facts of recognition

In full view of Gap's evidence 2, Eul's evidence 1, 9, and 10 evidence and the purport of the whole arguments, the articles of association of the clan of this case (Article 23) shall be subject to the resolution of the general meeting to dispose of the property of the clan. The clan of this case presented the agenda concerning "B district and V land development consent" at the general meeting of the clan held on June 6, 2007, and 59 members present at the meeting of 62 clans present at the meeting and decided with the consent of 31 members present at the meeting. The clan of this case shall be confirmed to the purport that the above 3rd general meeting of the clan of November 25, 207 is not against the above 10th general meeting of the clan, i.e., the contents of the agenda decided by the 10th general meeting of the clan, i.e., the consent to promote an urban development project, and, if sold, the articles of association of this case (Article 20 (1) 1) shall be deemed to have been entrusted to the 10th general meeting of this case.

There is no other reflective evidence.

(3) As seen earlier, it is interpreted that an urban development project implementer is obligated to designate a collective land substitution only to the landowners who have applied for collective land substitution (i.e., the obligation not to designate a collective land substitution for land owners who have not applied for collective land substitution). In reality, in the event that a collective land substitution is conducted rather than a separate land substitution, a collective land owner, who is an individual land owner, sells a collective housing project to a collective housing project implementer a share of land that he/she received collective land substitution due to economic burden, etc., and thereby is placed in a position similar to a financial liquidation person who has not received a replotting disposition. As such, in light of the fact that an urban development project implementer is bound by a collective land substitution application and is subject to a collective land substitution application, it is determined differently whether one land owner should make an individual land substitution or a collective land substitution depending on the existence of an application for collective land substitution, and from the land owner’s standpoint, it is necessary to adopt a resolution at a clan general meeting of this case in accordance with the regulations of this case.

The following facts or circumstances revealed from the facts and evidence as seen earlier, i.e., ① the general meeting of the clan on June 6, 2007, when the consent to the urban development project was reached, explained the purport of the agenda that the land of the clan was actually sold, and ② the board of directors of June 3, 2010, at the meeting of the board of directors of the Council of June 3, 2010, L may, upon the application for collective replotting as an agenda, receive substitute land as an apartment site and sell the apartment construction while carrying out the apartment construction project. The individual replotting cannot be processed later, and therefore, it cannot be resolved at the meeting of July 25, 2007, and therefore, even if the resolution was passed at the meeting of the clan on July 25, 2007, the case of collective replotting application for collective replotting is presented in a way that is further confirmed.

In full view of the fact that the purpose of the agenda was explained, the general meeting of the clan of this case on November 25, 2007, the general secretary X decided to dispose of the real estate of this case while conducting an urban development project, and it is reasonable to view that the delegated board of directors decided to dispose of the land of this case without any resolution of the general meeting, and the plaintiff's assertion that the above request for collective substitution of land of this case was made without any other premise is without merit.

B) Next, we examine whether the quorum of the general meeting of the clan of this case was met on June 6, 2007.

The term "members in the class of attendance who are the basis for determining the quorum" means all the members present at the original general meeting, not all the members who remain in the meeting place at the time of the resolution at issue. As such, the members who voluntarily left the meeting place during the meeting does not include the members (see Supreme Court Decision 2000Da56037, Jul. 27, 2001).

On June 6, 2007, the clan of this case presented the agenda of "B" and "the consent to the development of land of the clan in the district and the urban development project district of the V district" at the general meeting of the clans held on June 6, 2007, and 59 persons who were remaining in the meeting place among 62 members present at the time were voting and resolved with the consent of 31 persons.

As seen earlier, according to the statement in Eul evidence No. 1, the articles of this case's clan (Article 18 (1)) can be recognized that the resolution method of a general meeting provides that "the consent of at least 1/2 of the total number of the members present" is "the consent of at least 59 members present at the meeting place". Since only 59 members present at the meeting place at the above resolution and 31 members present at the above meeting place agree, the resolution on the above agenda is satisfied with the consent of at least 1/2 of the total number of the members present at the meeting place. Therefore, the plaintiff's assertion on this part is without merit.

C) Finally, I examine whether L makes a request for collective land substitution of this case to an individual who is not the representative of the clan of this case.

According to the statement in Eul evidence No. 1, the application for collective land substitution (No. 1-1) of this case is recognized as having only L's name, but the clan of this case delegated L, the representative of this case, to L, the submission of the collective land substitution application of this case, i.e., the fact that L is delegated to L's submission of the collective land substitution application of this case. Since L's real estate is owned by the clan of this case, L cannot dispose of the real estate of this case as an individual who is not the representative of the clan of this case, and L cannot dispose of the real estate of this case as an individual who is not the representative of the clan of this case, it cannot be deemed as having applied for collective land substitution of this case. Thus, the plaintiff's assertion that the clan of this case cannot be deemed as having applied for collective land substitution of this case is without merit.

2) Whether the Defendant already sold the land subject to collective land substitution and thus collective land substitution became impossible

A) Whether land subject to collective land substitution is sold in whole

Article 34 (1) of the Urban Development Act provides that "the implementer shall exchange certain land for the purposes set out in the rules, articles of incorporation, implementation rules or implementation plan to cover expenses incurred in an urban development project."

Article 34 (2) of the same Act provides that "A person may set some of them as a land secured for the recompense of development outlay and appropriate it for expenses incurred in urban development projects" and Article 34 (2) of the same Act provides that "the Governor of a Special Self-Governing Province, the Mayor, the head of a Gun, or the head of a Gu may designate some of the land secured for the recompense of development outlay of development outlay under the Housing Act as a group in the same area where it

According to the above provisions of the Urban Development Act, the defendant, an urban development project implementer, can designate apartment land as a land allotted by the authorities in recompense for development outlay (so-called "groups in recompense for development recompense"), and the collective land substitution and the collective land substitution lands are mixed to those who applied for collective land substitution such as the plaintiff.

As seen earlier, the Defendant intended to sell part of the land allotted by the Defendant in recompense for development outlay, etc. through the instant promise to sell it to Daz. However, it cannot be readily concluded that all of the land subject to collective land substitution, including the Plaintiff, was sold to the applicants for collective land substitution including the Plaintiff [the land for collective housing within the instant urban development project zone is 232,663 square meters or 220,163 square meters, whereas the land for collective housing within the instant urban development project zone is 76,195.08 square meters (i.e., 64,625.0 square meters in regional housing association + 11,570 square meters in multi-Korean housing association].

B) Whether the instant trade reservation was null and void

(1) The facts that the Defendant is an implementer of an urban development project, which implements a project using a replotting method, are as seen earlier, and the facts constituting a project proprietor as provided in each item of subparagraph 7 of Article 2 of the former Housing Act (amended by Act No. 13782, Jan. 19, 2016) may be recognized either as either there is no dispute between the parties or as a whole purport of the pleading in the recognition, and 4,534 households (multi-unit houses) to be constructed within the urban development project zone of this case, which are scheduled to be located within the urban development project zone of this case.

The fact that a household (i.e., 1,530 households + 2,646 households) is a national housing size (the exclusive use area of 85 square meters or less) is as seen earlier.

(2) Article 26(1) of the former Housing Act (amended by Act No. 14344, Dec. 2, 2016) provides that "where a project operator under the Housing Act requests an urban development project operator (referring to an urban development project operator who implements the project by the replotting method under the Urban Development Act; hereafter the same shall apply in this Article) to sell land allotted by the authorities in recompense for development outlay to use it as a site for national housing, such urban development project operator may sell the land preferentially to the project operator within the limit of 1/2 of the total area of the land allotted by the authorities in recompense for development recompense, as prescribed by Presidential Decree." Article 26(2) of the same Act provides that "in cases of paragraph (1), if the project operator requests the sale of land allotted by the authorities in recompense for development recompense for development recompense for development outlay before formulating a replotting plan under Article 28 of the Urban Development

In full view of the above Housing Act and the above provisions of the Urban Development Act, a project proprietor under the Housing Act may request an urban development project implementor, who implements a project using replotting method, to designate multi-family housing sites as a collective land development recompense area and sell them preferentially, and in such case, the urban development project implementor shall designate a collective land development recompense area in the

(3) Therefore, the NNN Housing Association and D&C, a project undertaker under the Housing Act, seeking to construct national housing scale collective housing, may demand the Defendant, who is the implementer of an urban development project, to designate a collective land substitution plan and sell the land secured by the State prior to the establishment of the land substitution plan to the Defendant who is the implementer of an urban development project, with priority in selling the land to them. In such case, the Defendant

Ultimately, the instant reservation may be deemed to result in the designation of land allotted by the collective authorities and the demand for preferential sale prior to the establishment of the said Housing Act and the Urban Development Act. In addition, the instant reservation may be deemed to result in the demand for preferential sale

Even if the purchase and sale reservation is in violation of the Urban Development Act, it is difficult to find logical reasons that the application for land substitution in this case becomes invalid due to such violation.

C) Whether land for apartment housing other than land allotted by the authorities in recompense for development outlay has been sold

According to the statements in Gap evidence Nos. 13 and 15, the defendant can recognize that the defendant sent to the land owner within the urban development project area of this case who filed an application for collective replotting on June 22, 2016 the official door "Daar C&3, who is the implementer, has completed the purchase of Daar Pable land, and to purchase the land owned by the Nable National Assembly member who filed an application for joint housing site substitution for Rable block in order to purchase the land for the smooth progress of the project."

In light of the above publication of official document, the Plaintiff seems to have asserted that the Defendant sold the previous land, other than the land allotted by the authorities in recompense for development outlay. However, in light of the language and text of the above official document, the purport of the above official document is to encourage the construction project implementer of multi-family housing, who applied for collective land substitution, to sell the previous land to the land owners who applied for collective land substitution as shown in the Plaintiff, and it is difficult to deem that the Defendant sold the land for multi-family housing (the Plaintiff’s purchase of the instant land from the clan of this case that applied for collective land substitution from the clan of this case cannot be deemed unlawful or invalid even if Dan C&C purchased

D) Whether an application for collective land substitution becomes invalid where collective land substitution becomes impossible

As seen earlier, an urban development project implementer, such as the Defendant, is interpreted to have the duty to designate a collective land substitution only to the land owners who have applied for collective land substitution (i.e., the duty to not designate a collective land substitution for land owners who have not applied for collective land substitution), and a group of land owners.

It can not be said that all landowners who have applied for land substitution have the duty to provide collective land substitution.

Therefore, it is difficult to readily conclude that a collective land substitution application becomes null and void immediately due to the fact that a collective land substitution application becomes impossible for some of the land owners who applied for collective land substitution.

3) Whether a significant change occurred in the development plan of the urban development project of this case

A) In cases where a person who designates an urban development zone pursuant to Article 3 of the Urban Development Act prepares and publicly announces a new development plan to substantially alter the major parts of the development plan, the original development plan becomes null and void (see, e.g., Supreme Court Decision 2010Du16219, Sept. 27, 2012). In addition, in light of the details, form, and purport of the Urban Development Act-related provisions, “an alteration of minor matters prescribed by Presidential Decree” under Article 4(4) of the Urban Development Act is not limited to the matters prescribed in each subparagraph of Article 7(1) of the Enforcement Decree of the Urban Development Act, but is not limited to the matters prescribed in each subparagraph of Article 7(1) of the Enforcement Decree of the Urban Development Act, even if the details of the development plan subject to the alteration are not subject to a resolution by the general meeting of the association, it is objectively consistent with the intent of interested parties, such as the association members, etc., and it is reasonable to view it as including the case where there is no decision differently from the changed details (see, etc.).

B) In light of the above legal principles, it is difficult to conclude that the contents of the development plan to be modified by the resolution of the general assembly of this case were a new development plan to substantially alter the main contents of the previous development plan, and thus, the previous development plan became null and void or that the application for collective land substitution in this case was null and void (the resolution of the general assembly of this case is significant).

Even if the development plan is amended, since the development plan was not formulated and publicly announced, it cannot be said that the original development plan has lost its effect.

(1) The reason why the Defendant promoted the modification of the development plan like the instant general assembly resolution is to increase the number of households by relaxing the floor area ratio and height limit of the land for multi-family housing as the planned population in the instant urban development project zone increases, and to additionally establish one elementary school in the area of the reduced land for multi-family housing.

(2) In light of the process leading up to the amendment of the above development plan or the proposal for the amendment thereof, even though the site for multi-family housing was reduced, it may be deemed as objectively consistent with the intent of interested parties, such as members, such as the association members, etc., such as where the floor area ratio and floor height restriction are mitigated due to consideration therefor, and the increase in the value of multi-family housing site is anticipated.

4. Judgment on the conjunctive claim

A. The plaintiff's assertion

For the following reasons, the Plaintiff withdraws the application for collective land substitution of this case by serving a preparatory document as of October 25, 2016, for which the declaration of the withdrawal or withdrawal of the application for collective land substitution of this case was made, and seeks confirmation of the withdrawal thereof.

(i) Changes in circumstances that make it impossible to collectively substitute land arise;

Since the change of circumstances that make it impossible for the Defendant to make collective land substitution in violation of the Urban Development Act, the Defendant may withdraw the application for collective land substitution in this case.

2) A significant change occurs in the development plan of the urban development project of this case

With the resolution of the general assembly of this case, a significant change in the development plan of this case

As such, the Plaintiff may withdraw the application for collective land substitution on the ground of the foregoing change in circumstances.

3) The defendant plans to liquidate money to the plaintiff.

The instant collective land substitution application was made on the premise that the Defendant would cause collective land substitution. However, the Defendant prepared a statement of land substitution (Evidence A No. 7) premised on the settlement of money by stating the indication of land substitution substitution regarding the instant real estate in Q Q, which is not a block or set, as "mergers, not a block or set." Moreover, collective land substitution was impossible as seen earlier. In light of these circumstances, the Defendant ought to consider that the Plaintiff is scheduled to liquidate money, not collective land substitution.

The plaintiff is aware that he will receive collective land substitution and applied for collective land substitution in this case, which was made by mistake of the country, so the plaintiff may withdraw the application for collective land substitution in this case.

B. Determination

1) Whether changes occur in circumstances that make collective land substitution impossible or not

As seen earlier, an urban development project implementer, such as the Defendant, is merely interpreted to have the obligation to designate a collective land substitution only to the land owners who have applied for collective land substitution, and all the land owners who have applied for collective land substitution have the obligation to provide collective land substitution.

Therefore, even if the collective land substitution is impossible for some of the applicants for collective land substitution, it is difficult to conclude that there was a reason to withdraw the collective land substitution application due to changes in circumstances.

2) Whether a significant change occurred in the development plan of the instant urban development project

A) It is difficult to conclude that the content of the development plan to be modified by the resolution of the general assembly of this case is a new development plan to substantially alter the main part of the previous development plan.

B) In reality, in an urban development project, the area of multi-family housing site is determined according to the amount of rights of applicants for collective land substitution. Based on such determination, development plans, implementation plans, and land substitution plans are established. As such, where a part of applicants for collective land substitution withdraws it, it would interfere with the establishment and authorization of development plans, implementation plans, and land substitution plans based on them. In such a case, the major procedures for an urban development project connected by many parties are to proceed again. Therefore, it is reasonable to interpret that collective land substitution applications are not always withdrawn prior to the preparation of land substitution plans, but can be withdrawn only where special economic imbalance arises between applicants for collective land substitution and landowners due to the modification of development plans

On the following grounds, it cannot be deemed that there was a special economic imbalance between the Plaintiff and other landowners due to the resolution of the general meeting of this case. Thus, it cannot be deemed that the grounds for withdrawal of the collective land substitution application have occurred.

(1) As seen earlier, although the draft amendment of the development plan pursuant to the resolution of the general meeting of this case reduces the site for multi-family housing, it is reasonable to deem that the value of the multi-family housing site has increased to the extent corresponding thereto due to the mitigation of the floor area ratio of the multi-family housing site site. Therefore, it cannot be said that the special economic imbalance between the applicant for

(2) Article 16 of the Enforcement Rule of the Urban Development Act, which provides for a land substitution plan, provides that land owners shall prepare a land substitution plan according to the value of their rights. Thus, even if the value of a multi-family housing site has been reduced, all land owners’ rights

It shall be reduced, and it shall not be deemed that changes in circumstances have occurred only to the applicants for collective land substitution such as the plaintiff.

3) Whether the Defendant intended to liquidate money to the Plaintiff

For the following reasons, it is difficult to view that the Plaintiff was scheduled to liquidate money, or that the instant collective land substitution request was made in error, and there is no other circumstance to recognize withdrawal.

A) According to the evidence Gap evidence No. 7, the defendant prepared a statement for the calculation of the allocation of substitute land for the land of this case, and stated "merger to Q Q without stating any separate block or set number in the column of land substitution for replotting, it is not enough to view that such statement alone was scheduled to liquidate money.

Rather, according to the statement No. 7-2 and No. 3 of the evidence No. 7-2, even in the column of reserved land for individual land substitution, there is no block or set number, and only a right area is included, and all land for which collective land substitution is applied is designated as a multi-family housing site for Q, merger with S, and merger with S, it is only recognized.

B) As seen earlier, Article 39(2) of the Defendant’s Articles of Incorporation provides for the preparation of a collective land substitution plan pursuant to a collective land substitution application or subsequent administrative disposition, and then the case where the construction of multi-family housing is not smooth due to the conflict of interests between the land owners who received a collective land substitution application. As such, it cannot be interpreted that the Defendant plans to liquidate money or that the said Articles of Incorporation provides for the settlement of money that is not a land substitution in violation of the Urban Development Act.

(C)in reality, in case of collective land substitution which is not individual land substitution, land ownership as individual land ownership;

It is true that people are selling land shares received by collective land substitution due to the economic burden of implementing the apartment house project, etc. to the public housing project implementer, and as a result, in a position similar to the money liquidation who is not subject to the land substitution disposition.

However, the sale of collective land shares above cannot be seen as identical to the settlement of money in accordance with the Urban Development Act and the Act, the nature of the law, and the method of market price determination. Moreover, it cannot be deemed that the Plaintiff can withdraw the collective land substitution application solely on the ground that the provision of the Act derived from the act of collective land substitution application or the actual conditions were attributable to the Plaintiff’s failure to know.

5. Consultations

Therefore, all of the plaintiff's primary and conjunctive claims are dismissed as they are without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

Judges

Judges Lee Jae-won

Judges Hong-gu

Judges Early Priority

Note tin

1) According to the statement of the complaint No. 1-1, the complaint shall be corrected ex officio since the date of application is September 30, 2010, according to the period between June 2010 and July 1, 2010, or evidence No. 1-1.

2) There is a lot of room for receiving liquidation in money as seen earlier. This is different from the case where a person is a person who is liquidated in money by excluding a person subject to replotting (see Articles 30 and 31 of the Urban Development Act; Article 27(5) of the Enforcement Rule of the Urban Development Act).

3) Each of the above evidence appears to be Dan S&C in light of (main) person, but in light of the purport of the entire pleadings.