[1] Property ownership relationship of a reconstruction association under the former Housing Construction Promotion Act and the method of managing and disposing of its property

[2] The case holding that the above agreement is null and void in the absence of a resolution of a general meeting of a reconstruction association without a separate articles of association or regulations as to the collective ownership owned by a reconstruction association since the act of the president of a reconstruction association made an agreement that a specific partner shall make compensation for increase in the actual area or more than the actual area, unlike other association members, for the site in which he made an investment

[1] Articles 275 and 276(1) of the Civil Act, Article 3 subparag. 9 of the former Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 2003) (see current Article 2 subparag. 9 of the Housing Act), and Article 44 (see current Article 32 of the Housing Act) / [2] Articles 105, 275, and 276(1) of the Civil Act

[1] Supreme Court Decision 2000Da10246 delivered on May 29, 2001 (Gong2001Ha, 1459) Supreme Court Decision 2002Da64780 Delivered on July 22, 2003 (Gong2003Ha, 1775)

[Judgment of the court below]

Defendant Reconstruction Housing Association (Attorneys Seo-dilution et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2003Na2576 delivered on July 21, 2004

The part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to the Seoul High Court. The plaintiff's supplementary appeal is dismissed.

The Defendant’s grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed) and the Plaintiff’s grounds of incidental appeal are examined in order.

1. Judgment on the Defendant’s grounds of appeal

A. As to the existence of an agreement to pay compensation

Examining the reasoning of the judgment below in light of the records, the court below was just in finding the indirect facts as stated in its reasoning after compiling the adopted evidence, and based on this, the court below held that the non-party, the head of the whole association of the defendant, made an agreement that the plaintiff would make an increase in the amount above the actual area of the invested site in the process of soliciting the plaintiff to join the association (hereinafter "agreement of this case"), and there is no error of law such as misconception of facts against the rules of evidence

B. As to the validity of the instant agreement

(1) According to the reasoning of the judgment below, the court below held that the agreement of this case constitutes management and disposal of the defendant's property collectively owned by the defendant, and thus null and void since it did not go through the general meeting resolution of the defendant, the above non-party's act of entering into the agreement of this case with the plaintiff is merely an act of management and disposal of collective ownership owned by the defendant, which is a non-corporate group, and merely an act of bearing simple debt obligations, and thus, even if the agreement of this case

(2) However, we cannot agree with the above judgment of the court below.

A reconstruction association established under the Housing Construction Promotion Act constitutes a non-corporate association under the Civil Act; it shall comply with the articles of incorporation or regulations concerning the management and disposition of collective ownership; and shall follow the resolution of the general meeting of members unless the articles of incorporation or regulations stipulate otherwise; therefore, the management and disposition of collective ownership without the resolution of the general meeting of members shall be null and void unless the articles of incorporation or regulations stipulate otherwise; and in this context, the management and disposition of collective ownership shall not include simple acts of bearing obligations, but shall include both acts of disposal of legal and private performance and acts of use and improvement concerning collective ownership (see Supreme Court Decision 2002Da64780 delivered on July 22, 2003).

However, according to the records, the agreement of this case can be acknowledged that the plaintiff would make an increase in the actual area or more, unlike other union members, in relation to the land in which the plaintiff made an investment. Accordingly, this purport does not differ from the purport that the plaintiff would recognize and make an increase in the total property of the association formed by the investment of the union members more than other union members, or that the result of the implementation of a reconstruction project would be distributed more than other union members than the other union members. Furthermore, in order to implement the agreement of this case, the management and disposition plan that reflects the agreement of this case should be finalized. Since the management and disposition plan is a plan that disposes of the property owned by the defendant or jointly owned by the defendant, the act of entering into the agreement of this case cannot be deemed as the management and disposition of the property in common owned by the defendant.

Therefore, since the defendant does not have any separate articles of association or regulations concerning the management and disposition of collective ownership, and it is clear that the defendant's general meeting did not have a prior or ex post consent to the agreement of this case, the agreement of this case is null and void. However, the court below erred in the misapprehension of legal principles concerning the management and disposition of collective ownership by determining that the act of entering into the agreement of this case is merely a mere act of bearing obligations and it cannot be deemed null and void even if there is no resolution of the general meeting of the defendant, which affected the conclusion of the judgment. Thus, the ground for appeal

2. Judgment on the ground of incidental appeal by the Plaintiff

As seen earlier, since the agreement of this case is null and void because there is no resolution of the general meeting of the defendant, the plaintiff has no right to receive settlement money exceeding the amount recognized by the court below pursuant to the agreement of this case null and void.

Therefore, the court below's rejection of part of the plaintiff's primary claim is inadequate, but its reasoning is therefore justified, and there is no error in the misapprehension of facts against the rules of evidence that affected the conclusion of the judgment, or in the misapprehension of legal principles as to the interpretation of the agreement or confession of this case.

3. Conclusion

Therefore, the part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to the court below for a new trial and determination. The plaintiff's supplementary appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)