Where a new management and disposition plan is formulated to substantially alter the main parts of the original management and disposition plan and the authorization is obtained from the head of the Si/Gun, whether the original management and disposition plan becomes void (affirmative in principle), and the meaning of losing its validity (affirmative in principle)

In light of the contents, form, and purport, etc. of Article 48(1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 11293, Feb. 1, 2012; hereinafter “former Act”), where a new management and disposal plan is formulated to substantially alter the main parts of the original management and disposal plan and obtains authorization from the head of a Si/Gun, unlike the case of modifying any insignificant matters of the original management and disposal plan, the initial management and disposal plan becomes null and void unless there exist any special circumstances otherwise. In such a case, the initial management and disposal plan becomes null and void, barring any special circumstance. The initial management and disposal plan becomes null and void as of the time when the initial management and disposal plan remains null and void and void, and it is equally applicable to the case where the revised management and disposal plan does not reach the extent of substantially modifying the main parts of the original management

Article 48 (1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 11293, Feb. 1, 2012)

Supreme Court en banc Decision 2011Du6400 Decided March 22, 2012 (Gong2012Sang, 682) Supreme Court en banc Decision 2011Du1528 Decided November 26, 2015 (Gong2016Sang, 67)

Plaintiff

U.S. Apartment Housing Reconstruction Project Association (Law Firm branchel, Attorneys Yoon Sang-gu, Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2012Na54385 Decided December 19, 2013

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court.

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

1. As to the grounds of appeal Nos. 1 and 2

A. According to Article 48(1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 11293, Feb. 1, 2012; enacted on August 2, 2012; hereinafter “former Act”), a project implementer shall obtain authorization from the head of a Si/Gun, including design for sale, address and name of a person subject to parcelling-out, estimated estimated amount of a site or structure scheduled for parcelling-out by a person subject to parcelling-out, details of the previous land or structure scheduled for parcelling-out and the date of announcement of authorization for project implementation, estimated amount of the rearrangement project cost, timing for sharing and burden, details of rights other than ownership of the previous land or structure subject to parcelling-out, details of rights of tenants for compensation for losses and their appraised value, and other rights related to rearrangement projects, etc., based on the status of application for parcelling-out, and shall report to the head of a Si/Gun when he/she intends to modify minor matters prescribed by Presidential Decree.

In light of the content, form, purport, etc. of the provisions related to the former Act on the Improvement of Urban Areas, where a new management and disposal plan is formulated to substantially alter the main parts of the original management and disposal plan and obtains authorization from the head of the relevant Si/Gun, the original management and disposal plan shall lose its validity (see, e.g., Supreme Court Decisions 2010Du19799, Feb. 10, 201; 201Du6400, Mar. 22, 2012). In such cases, the original management and disposal plan shall lose its validity, unless there are any special circumstances otherwise. It does not mean that the original management and disposal plan shall continue to exist, and it shall not be retroactively null and void as of the time of the amendment (see, e.g., Supreme Court Decision 2014Du1528, Nov. 26, 2015). Such a legal principle shall be deemed null and void in the future, as it does not substantially change the main parts of the original management and disposal plan.

B. The reasoning of the lower judgment, the reasoning of the first instance judgment partially admitted by the lower court, and the evidence duly admitted by the lower court reveals the following facts.

(1) Under the management and disposition plan (hereinafter “previous management and disposition plan”), the Defendant: (a) formulated a management and disposition plan that lowers the amount of contributions under the previous management and disposition plan (hereinafter “amended management and disposition plan”) on the ground that the general sale price is increased and the expected business revenue is increased due to exemption from the construction obligation of rental housing; and (b) obtained approval for modification from the competent authority.

(2) Some of the members including the Plaintiff did not pay the overdue interest to the Defendant by delinquency in the contribution under the previous management and disposal plan. The Defendant only returned the amount of the contribution to the Defendant after the modification of the management and disposal plan, but did not refund the amount of the contribution to the amount of the overdue interest already received.

(3) The revised management and disposal plan does not explicitly stipulate the purport that the portion of the contribution shall be refunded to the delinquent members, but the defendant calculated the amount of the contribution to be reduced by calculating the business revenue and business expenses on the premise that the contribution is not returned.

C. Examining these facts in light of the legal principles as seen earlier, even if the management and disposal plan to reduce the amount of contributions stipulated in the previous management and disposal plan was amended, it cannot be deemed that the part concerning the contributions in the previous management and disposal plan becomes retroactively null and void. Therefore, the part concerning the reduced amount of the overdue interests already incurred pursuant to the previous management and disposal plan cannot be deemed retroactively null and void. In addition, in light of the content of the amended management and disposal plan and the method of calculating the amount of the reduced amount of contributions, it cannot be deemed that the amended management and disposal plan determined to return the amount of the contributions to the association

Therefore, even if the part of the charge reduced in the revised management and disposition plan was included in the overdue interest received from the Plaintiff before the amendment of the management and disposition plan, such circumstance alone does not necessarily lead to the Defendant’s unjust enrichment as to the above part. However, the lower court determined that the Defendant’s unjust enrichment was established on a different premise only for the reasons as indicated in its holding. In so doing, it erred by misapprehending the legal doctrine on the validity of the amendment of the management and disposition plan, requirements for establishing

2. Conclusion

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

Justices Park Poe-young (Presiding Justice)