In the case of resolution for reconstruction, matters on the apportionment of expenses in the execution stage of reconstruction where matters on the apportionment of expenses in the rebuilding are not determined;

[1] Article 47 of the Multi-Unit Residential Building Act

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Seoul High Court Decision 2006Na11448 delivered on May 1, 200

Man-Man and 12 others (Attorneys Cho Jin-jin et al., Counsel for the defendant-appellant)

Busan High Court Decision 2004Na599, 605 decided August 27, 2004

All appeals are dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).

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

1. A. In the event that a resolution for reconstruction is adopted at a general meeting of the members of the rebuilding execution without determining matters concerning the apportionment of expenses, it is reasonable to interpret that a resolution by the majority of not less than 4/5 of the members is necessary by applying the quorum of the number of special cases at the time of rebuilding resolution to ensure the equity among the members of the association where interests conflict (see Supreme Court Decision 98Da15996, Jun. 26, 1998).

B. After compiling the adopted evidence, the court below determined that, based on the facts as stated in its reasoning, at least 2/3 of the sectional owners and voting rights of each building of the 9 apartment units and one commercial building of this case (hereinafter referred to as "the housing complex of this case") by consenting to reconstruction on September 18, 2000, at least 4/5 of the total sectional owners and voting rights of the housing complex of this case were consented to reconstruction, and the quorum for reconstruction stipulated in Article 44-3 (7) of the former Housing Construction Promotion Act (amended by Act No. 5908 of Feb. 8, 1999) was met, and thereafter, the resolution on reconstruction was valid by agreement of at least 35/4 of the members of the 38 association who agreed to reconstruction on June 30, 2003.

In light of the above legal principles and records, the court below's finding of facts and determination are just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors of law such as misconception of facts due to violation of the rules of evidence or incomplete deliberation, misunderstanding of legal principles as to reconstruction resolution (limited to the defendant Counterclaim, hereinafter "the defendant")'s exercise of the right to demand sale against 75 sectional owners, as alleged by the plaintiff (hereinafter "the plaintiff"), it seems to have been due to the circumstances that the plaintiff had no choice but to take the procedure against the union members whose legal relations are unclear in order to comply with the period for exercising the right to demand sale. Thus, it cannot be deemed that all 75 persons asserted by the defendants were not members of the plaintiff).

On the other hand, in light of the records, the judgment of the court below that the 7 tickets which were invalidated at the fourth general meeting of partners on April 16, 2002 can be viewed as consenting to the proposed share of rebuilding expenses. Thus, it is not acceptable to the judgment of the court below that the 8 persons, among the persons recognized as members of the association on the matters concerning the share of rebuilding expenses as of June 30, 2003, who agreed to the share of rebuilding expenses, agree to the matters concerning the share of rebuilding expenses by 274 members, who are 338% of all 338 members, even if they are not members of the association

C. In order for the instant rebuilding resolution to be effective, at least 2/3 of the sectional owners and voting rights for each building upon the determination of the matters concerning the apportionment of rebuilding expenses, the arguments in the grounds of appeal premised on the premise that at least 4/5 of the entire sectional owners and voting rights should be given consent, are inconsistent with the aforementioned legal principles, and it is difficult to accept.

2. The court below held that even though 50 members, such as arbitho-ho, expressed their intention to withdraw from the association on April 2001, it is reasonable to view that the plaintiff's union members cannot voluntarily withdraw from the association unless there exist any inevitable reasons in light of the facts in its reasoning, and there is no inevitable reason for the union members who expressed their intention to withdraw from the association. Since 41 members, from among the union members who expressed their intention to withdraw from the association, have reversed their intention by again consenting to reconstruction or by making a trust registration on the premise thereof, the above temporary demand for withdrawal from association cannot be deemed to be unlawful due to the above temporary demand for withdrawal from association, and the minutes of the management body meeting for the re-building resolution cannot be deemed to be the supporting parts of each sectional owner's resolution for the re-building resolution, but the resolution of re-building expenses at the fourth general meeting held on April 16, 2002 cannot be viewed to be a violation of the rules of evidence or the records, and it cannot be viewed that there is no violation of the rules of evidence or the records.

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

Justices Jack-dam (Presiding Justice)