(영문) 대법원 2016.1.14.선고 2015두51736 판결

1. Article 48(1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 12116, Dec. 24, 201; hereinafter referred to as the "former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents") provides that when the period for application for parcelling-out under Article 46 expires, a project implementer (excluding a residential environment improvement project) shall establish a management and disposal plan including the following matters based on the current status of application for parcelling-out under Article 46 and obtain authorization from the head of a Si/Gun. As one of the matters to be included in the management and disposal plan under subparagraph 4, the price of a building removed under Article 48-2(2) as of the date of public announcement of the details of the previous land or structure and the project implementation authorization (as of the building removed under Article 48-2(2) before the project implementation authorization, the price shall be determined by the head of a Si/Gun as of the date of approval for the project implementation, and the appraisal and disposal plan shall be determined reasonably in consideration of the previous land or structure under the Act:

In addition to the language, purport, structure, etc. of the above provisions, improvement project, such as redevelopment and reconstruction under the former Act, is a project that the owner of land, etc. in the improvement zone has invested in the previous assets and divided development gains accruing from the sale of multi-family housing, etc. to the general public according to the investment ratio among the members of the association. The evaluation of the previous asset price as the content of the management and disposal plan is to determine the relative investment ratio among the members of the association. ② Article 48(1)4 of the former Act provides that the evaluation of the previous asset price as of the date of public announcement in principle shall be made based on the date of public announcement of the project implementation plan, and the evaluation of the previous asset price shall be made based on the date of public announcement of the project implementation plan, and even if the project implementation plan has been modified, it is reasonable to view that the previous project implementation plan has no provision that the appraisal of the previous asset price would have to be conducted uniformly since the new project implementation plan had no effect on the price of the previous assets after the alteration of the previous project implementation plan.

2. Review of the reasoning of the first instance judgment cited by the lower court reveals the following facts.

A. On May 18, 1995, the Defendant is the Housing Reconstruction Improvement Project Association established with authorization from the head of Gwanak-gu in Seoul Special Metropolitan City for the implementation of the Housing Reconstruction Improvement Project at 18,684.6m of the Seoul Special Metropolitan City, which was approved on December 1, 2006, established a project implementation plan and approved on December 1, 2006, established a management and disposal plan based on the application for parcelling-out from the members and approved on February 5, 2008.B. The first project implementation plan was approved and announced on May 16, 2013 (hereinafter referred to as the "final project implementation plan"), the project cost, the size and number of supplied housing units, floor area ratio, etc. were changed compared with the first project implementation plan.

C. After receiving the application for parcelling-out from the members of the association after the approval of the final project implementation plan, the defendant presented a management and disposal plan proposal at the general meeting held on September 7, 2013, and passed a resolution with the consent of 507 members among 632 members of the association (hereinafter referred to as the "resolution of this case"), and "the management and disposal plan proposal of this case" as above.

D. Meanwhile, when formulating the instant management and disposal plan, the Defendant used the appraised value of the previous asset price as of December 1, 2006, which was based on the date of the first public notice of project implementation authorization. 3. Examining these factual relations in light of the legal principles as seen earlier, even if the last project implementation plan was substantially modified, such circumstance alone cannot be deemed unlawful.

Nevertheless, on different premises, the lower court determined that the instant management and disposal plan was unlawful on the ground that the price of the previous assets was prepared based on the price of the previous assets appraised as of the announcement date of approval of the initial project implementation plan without evaluating the price of the previous assets as of the announcement date of approval of the initial project implementation plan, and determined that the resolution of this case, which was resolved as it is, has no effect due to the substantive defect. In so determining

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.