Where a maintenance and improvement project association, which is a project implementer under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, files an application for authorization to implement a project, whether the consent of the association members should be obtained separately from the written consent of the owners of land, etc. to meet the requirements such as the ratio of consent prescribed by the articles of association, etc. (negative in principle), and whether Article 24(3)12 of the same Act and Article 34 subparag. 3 of the Enforcement Decree of the same Act stipulate “the alteration of the outline of the construction

Article 17, 24(3), 28(1), (5), and (6) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444, Feb. 6, 2009; hereinafter “former Act”), Article 28(4) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 21679, Aug. 11, 2009; hereinafter “former Enforcement Decree of the Act”), the forms and details and history of the provisions of Article 28(4) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444, Feb. 6, 2009; hereinafter “former Act”), which provides that the consent of owners of land, etc. shall be obtained through the method of written consent of the general meeting before filing an application for authorization for project implementation or alteration thereof, is difficult to obtain the consent of the project implementer’s consent.

Articles 17, 24(3)12, 28(1), (5), and (6) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 9444, Feb. 6, 2009); Articles 28(4) and 34 subparag. 3 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Presidential Decree No. 21679, Aug. 11, 2009);

Supreme Court Decision 2011Du21652 Decided February 13, 2014 (Gong2014Sang, 593)

Plaintiff 1 and one other (LLC, Kim & Lee LLC, Attorneys Lee Jae-in et al., Counsel for the plaintiff-appellant)

The head of Jongno-gu Seoul Metropolitan Government and one other (the Government Legal Service et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2011Nu16133 decided February 2, 2012

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

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

1. Regarding ground of appeal No. 1

Article 4(1) and (3) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444 of Feb. 6, 2009; hereinafter “former Act”), where the Mayor/Do Governor or the mayor of a large city intends to designate an improvement zone or modify the remainder of matters other than insignificant matters prescribed by Presidential Decree, they shall undergo joint deliberation by the local urban planning committee and the construction committee established in a City/Do or a large city (hereinafter “construction committee”) under Article 4 of the Building Act, and where the plan to increase or decrease the number of households under Article 12 subparag. 3, 7, 7-2, and 12 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 21679 of Aug. 11, 2009; hereinafter “former Enforcement Decree of the Act”) within the scope of the building improvement plan or the maximum building-to-land ratio under Article 13-2(1)3 and 4 of the former Ordinance on the residential Environment or construction plan.

According to the reasoning of the judgment below, considering the above provisions and the purport of requesting a joint deliberation of the local urban planning committee and the Building Committee on the designation of an improvement zone in terms of the overall urban policy and urban planning, etc., together with the purpose of uniformly operating the designation of an improvement zone from the perspective of urban planning, the court below determined that the above alteration constitutes an alteration of minor matters that could be autonomously changed without joint deliberation, on the premise that the alteration of the area of the improvement zone or the building-to-land ratio, floor area ratio, floor area ratio, etc. is an insignificant change of matters that do not involve a significant increase in the size of the improvement zone and buildings, etc.

In light of the above provisions of the Act and the record, the above determination by the court below is just, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on modification of minor matters, which may not be jointly deliberated by the local urban planning committee and the Construction Committee under Article 4

2. Regarding ground of appeal No. 2

According to Article 28 of the former Act, where a project implementer intends to implement a rearrangement project, he/she shall obtain authorization for the implementation of the project from the head of the Si/Gun, and even if he/she modifies the authorized contents, he/she shall obtain authorization for modification: Provided, That where a project implementer intends to modify minor matters prescribed by Presidential Decree, he/she shall report to the head of the Si/Gun (paragraph (1)). In addition, prior to applying for authorization for the implementation of a project or authorization for the alteration of the project, the project implementer shall obtain the consent of the owners of the land, etc. as prescribed by the articles of incorporation, etc. (Paragraph (5) and Article 17 of the Enforcement Decree of the former Act on the method and procedure for calculating consent of the owners of the land, etc. in relation to the establishment of an association (Paragraph (6)). In addition, Article 28(4) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions, Article 24(3) of the former Act did not stipulate “establishment and modification of a project implementation plan” as a resolution of a general meeting (Article 24(2).

Article 28(5) of the former Act provides that the consent of the owners of land, etc. shall be obtained through written consent prior to applying for authorization for project implementation or authorization for modification as prescribed by the articles of association, etc., along with the form and details of the provisions of the Act and its history and the impact of the change of a project implementation plan on the interests of the association members. However, the purport of applying for authorization for project implementation or authorization for modification is that the consent of the owners of land, etc. shall be governed by the provisions of the articles of association, etc. (see Supreme Court Decision 2011Du21652, Feb. 13, 2014). In full view of the following: (a) a maintenance project association, which is a project implementer, shall establish a project implementation plan according to the procedures prescribed by the articles of association, and obtain written consent from the owners of land, etc. to meet the requirements for consent rate prescribed by the articles of association, etc.; (b) a project implementer shall not be deemed to have any other means to secure procedural legitimacy of a project implementation plan; (c) a resolution of Article 28(3) of the former Act.

According to the reasoning of the judgment below and the record, the defendant Housing Redevelopment and Rearrangement Project Association (hereinafter referred to as the "Defendant Union") submitted a written consent from 146 members among 193 members of the whole association from February 10, 2009 to March 10, 2009 to the project implementation plan pursuant to the designation of the rearrangement zone (hereinafter referred to as the "project implementation plan of this case"), and applied for authorization of the project implementation plan of this case to the head of Jongno-gu Seoul Metropolitan Government (hereinafter referred to as the "head of the defendant") on September 2, 2009, and the head of the defendant Gu announced it on November 20, 2009 (hereinafter referred to as the "approval of the project implementation plan of this case"), and the articles of incorporation of the defendant Union did not provide for the establishment of the project implementation plan as a general meeting and shall obtain consent from at least 2/3 of the members of the association (Article 20) before applying for the approval of the project implementation plan (Article 34).

Article 28(a) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444, Feb. 6, 2009); however, Article 1 of the Addenda to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 2009, Feb. 6, 2009) provides that the amended provisions of Article 28 shall enter into force on August 6, 2009 after six months have passed since its promulgation; Article 6 provides that the amended provisions of Article 28 shall apply from the first application for authorization to implement the project after the enforcement of this Act, while the proviso provides that "where an application for authorization to implement the project is filed within three months from the enforcement date of the previous Act with the consent of the owner of land, etc., it shall be deemed a legitimate application for authorization to implement the project under this Act. Accordingly, the provisions of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents shall apply with the consent of the owner of land, etc.

In addition, considering the above facts in light of the legal principles as seen earlier, the Defendant Union obtained the consent of at least 2/3 of the members by the written consent regarding the project implementation plan pursuant to Article 28(5) of the former Urban Improvement Act and Article 34 of the Articles of association prior to filing an application for the approval of the project implementation of this case, and thus, it shall meet the requirements for consent of the owners of lands, etc. necessary for the establishment of the project implementation plan. Even if the contents of the project implementation plan change the design outline of the building, which was the contents

In the same purport, the court below was just to determine that the project action plan of this case was legitimate, and there was no error of law by misapprehending the requirements for the establishment of the project action plan or the legal principles as to the resolution

3. Conclusion

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

Justices Lee In-bok (Presiding Justice)