[1] Legal nature of a lawsuit against a housing reconstruction and improvement project association under the Act on the Maintenance and Improvement of Urban Areas and Residential Environments (=party lawsuit under the Administrative Litigation Act)

[2] Whether a housing reconstruction and improvement project association under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents can seek confirmation of invalidity of the resolution of the general meeting on the management and disposal plan formulated pursuant to Article 48 of the same Act after the competent administrative agency's approval and public notice is given (

[3] The case holding that in a case where a general meeting resolution, etc. on a management and disposal plan is sought against a housing reconstruction and improvement project association after the authorization and public notice of a management and disposal plan, such lawsuit should be deliberated in accordance with the procedures prescribed by the Administrative Litigation Act, since it is a single-class party lawsuit of administrative litigation, and an appropriate exercise of the right to ask for an explanation as to whether to alter the lawsuit as an appeal litigation

[1] Articles 18, 24(3)10, and 48 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents; Article 3 subparag. 2 of the Administrative Litigation Act; Article 250 of the Civil Procedure Act / [2] Articles 24(3)10 and 48 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents; Articles 3 subparag. 2 and 48 of the Administrative Litigation Act; Article 250 of the Civil Procedure Act / [3] Articles 24(3)10 and 48 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents; Articles 3 subparag. 1 and 2, 4, 21, and 42 of the Administrative Litigation Act; Articles 136 and 250 of the Civil Procedure Act

[1] [2] Supreme Court en banc Decision 2007Da2428 Decided September 17, 2009 (Gong2009Ha, 1648) / [1] Supreme Court Decision 2008Da93001 Decided October 15, 2009 (Gong2009Ha, 1832)

Plaintiff 1 and 22 others (Attorney Seo-won, Counsel for the plaintiff-appellant)

Defendant Reconstruction and Improvement Project Association (Law Firm Affiliated, Attorneys Ansan-min et al., Counsel for defendant)

Seoul High Court Decision 2008Na62887 decided November 19, 2008

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal ex officio prior to judgment.

1. A housing reconstruction and improvement project association (hereinafter “renovation project association”) under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”) is a public corporation that implements a housing reconstruction project under the Urban Improvement Act under the supervision of the competent administrative agency (Article 18 of the Urban Improvement Act) and has the status of an administrative agent that performs certain administrative actions within the scope of its purpose as prescribed by law. A management and disposal plan that a reconstruction association establishes under Article 48 of the Urban Improvement Act as an administrative agent pursuant to the status of an administrative agency has a specific and direct influence on the property rights, obligations, etc. of its members by prescribing matters concerning the reversion of rights to a site or building created as a result of the implementation of a rearrangement project, and matters concerning the apportionment of expenses to its members, etc., which constitutes a binding administrative disposition (see, e.g., Supreme Court en banc Decision 94Da31235, Feb. 15, 196; Supreme Court Decision 2005Du1951, Sept. 6, 2007).

However, the management and disposal plan is effective only after the reconstruction association prepares a management and disposal plan based on the current status of application for parcelling-out of the association members, undergo the resolution of the general meeting of association and the public inspection of the owners of the land, etc., through the authorization and public announcement of the competent administrative agency (Article 24(3)10, Article 48(1), and Article 49 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents), and the resolution of the general meeting of association on the management and disposal plan is one of the procedural requirements leading to the administrative disposition called the management

Therefore, 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 legal relations under public law which directly affects the illegality of administrative disposition according to the result of the lawsuit, and thus, it constitutes a party lawsuit under the Administrative Litigation Act.

In addition, such a lawsuit may prevent a defective management and disposal plan from going into effect as an administrative disposition by obtaining a judgment to nullify the invalidity of the illegal resolution of the general assembly and submitting it to the competent administrative agency as data, or by requiring the reconstruction association to submit a new draft of the management and disposal plan to go through a resolution of the general assembly again. In addition, even in a case where the management and disposal plan is authorized and publicly announced despite the judgment to nullify the resolution of the general assembly, a dispute may be resolved promptly by using the judgment to nullify the resolution of the general assembly and the evidence in an appeal litigation disputing the validity of the management and disposal plan as litigation materials. Thus, it is necessary to allow prior to the authorization and public notice of

However, inasmuch as a management and disposition plan becomes effective when the competent administrative agency's approval and ruling on the management and disposition plan becomes effective until the time of the approval and ruling of the management and disposition plan, it is necessary to seek revocation or invalidity confirmation of the management and disposition plan by means of an appeal litigation disputing the validity of the administrative disposition on the grounds of defects in the resolution of the general meeting, and filing a lawsuit seeking confirmation of the validity of the management and disposition plan separately from the procedural requirements leading to the administrative disposition should not be allowed unless there are special circumstances (see Supreme Court en banc Decision 2007Da2428, Sept. 17, 2009).

2. According to the records, the lawsuit in this case was filed on August 17, 2007 after the approval and public notice of the management and disposal plan was issued on December 28, 2006, for seeking confirmation of invalidity of the resolution of the general assembly, etc. on the management and disposal plan, which is merely the procedural requirements of the management and disposal plan, upon the application for modification of the purport of the claim and cause of the claim. Thus, there is room to regard it as an unlawful lawsuit in accordance

However, the substance that the plaintiffs want to dispute by the lawsuit in this case is the validity of the management and disposition plan, and it should be done by the method of seeking the cancellation or invalidity confirmation of the management and disposition plan as seen earlier, and it seems that the parties to the lawsuit in this case would have selected the method of seeking the invalidity confirmation of the resolution of the general assembly, etc. on the draft of the management and disposition plan which meets the above conditions without properly knowing such facts, and in light of these circumstances, the lawsuit in this case cannot be viewed as the purport of disputing the validity of the management and disposition plan, and the other party to the lawsuit in this case is the defendant association with the status as the subject of administration. In addition, considering the fact that the lawsuit in this case is related to legal relations in public law, and it

In light of the circumstances, the lower court should have deliberated the instant case in accordance with the procedures prescribed by the Administrative Litigation Act, and should have appropriately exercised the right of explanation as to whether a lawsuit has been modified as an appeal litigation.

Nevertheless, without taking such measures, the judgment of the court below which deliberated the instant case as a civil litigation in accordance with the procedures prescribed in the Civil Procedure Act is erroneous in the incomplete hearing which affected the conclusion of the judgment.

3. Therefore, without examining the grounds of appeal, the judgment of the court below shall be reversed ex officio, and the case shall be remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Nung-hwan (Presiding Justice)