(영문) 부산고등법원 2010.5.19.선고 2009누6100 판결

1. The defendant's disposition of approving the establishment of the Housing Redevelopment Improvement Project Promotion Committee on October 0, 2007 is invalid.

2. The costs of lawsuit arising from the changed claim shall be borne by the defendant.

Purport of claim

The plaintiffs are the same as the disposition. (The plaintiffs are the Busan District Court's Dong division against the 80 district Housing Redevelopment Project Association.

The court filed a lawsuit seeking confirmation of the nullification of partnership's incorporation, and the above court filed the plaintiffs' claim through pleading.

In this regard, the Housing Redevelopment Project Association filed an appeal.

The defendant, upon the request of the plaintiffs, has been pending in this court.

In addition, the purport of the plan was changed to the head of the Gu, and the purport of the plan was also promoted by the defendant.

The change in the content of seeking nullification of the approval of the establishment of the Housing Redevelopment Project Association

Accordingly, the plaintiffs filed against the 20 district Housing Redevelopment Project Association.

A lawsuit seeking confirmation of the nullification of incorporation was withdrawn, and a lawsuit between the plaintiffs and the defendant was newly filed in the trial.

and continued to exist)

Reasons

1. Details of the disposition;

가. 부산광역시장은 2006. 00. 00. 부산광역시 고시 제2006 - 172호로 《 2010년 부산광역시 도시 및 주거환경정비 기본계획 》 을 변경하면서 부산 □□구 호동 000 일원 132, 100㎡를 20 주택재개발 정비예정구역으로 신규 지정하였다 .

B. The Defendant approved the composition upon the application of the Promotion Committee for the Establishment of the Development and Maintenance Enterprise Association, which was engaged in activities in the redevelopment and improvement zone in No. 00, 006, No. 000, and No. 100.

C. On October 0, 2007, the Mayor of Busan Metropolitan City designated 135,040 square meters as 20 housing redevelopment improvement zone in accordance with the above master plan for urban and residential environment improvement of Busan Metropolitan City in Busan Metropolitan City in 2010 as above.

D. On 00, 007, the Defendant issued the instant disposition that approved the establishment of an association on the ground that the requirements for approving the establishment were met after obtaining an application for approving the establishment of an association from the above promotion committee.

E. The Plaintiffs are owners of land, etc. holding the same 00 square meters, 191.7 square meters, 1500 square meters, 156.7 square meters, and 124.7 square meters, etc. within the above improvement zone.

[Grounds for Recognition: Gap evidence Nos. 1, 2, Eul evidence Nos. 6 (including branch numbers), and the purport of the whole pleadings]

A. The plaintiffs' assertion

The Plaintiffs asserted that the Defendant’s disposition of approving the establishment of the 30th Housing Redevelopment Improvement Project Promotion Committee for the 30th Housing Redevelopment Project was null and void, and based on the following points, there was no written consent of the owners of lands, etc., but at the time of the establishment of the consent, the consent was not designated as a rearrangement zone, and there was no written consent including “the outline of the design of the new building” and “the estimated cost of the removal of the buildings and the construction of the new building” in the consent form. However, the promotion committee, which had been holding the above consent form, did not obtain any authority to supplement the said portion from the owners of lands, etc., and submitted it to the Defendant.

2) Under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785, Dec. 21, 2007; hereinafter referred to as the "Urban Improvement Act"), a promotion committee may obtain approval after the designation of a rearrangement zone. The above promotion committee has been previously organized and approved. 3) The letter of consent submitted to the defendant contains either "the outline of the design of the new building" and "the estimated amount of the cost of demolition of the new building and the cost of new construction" or "the cost of the new construction", but its contents are too abstract and general principles, so it cannot be deemed that the cost-sharing or the calculation basis has been specifically determined to the extent that it does not reach an agreement on the cost-sharing at the implementation stage of the redevelopment project.

B. Relevant statutes

As shown in the attached Form.

1) From the beginning of 2006, the said promotion committee started to gather a written consent on the establishment of the association from the owners of lands, etc. of the 00-dong-dong-dong-gu Busan Metropolitan City using the written consent form publicly notified by the Minister of Construction and Transportation (No. 2006 - 330 of the Ministry of Construction and Transportation’s announcement 3-2: Housing redevelopment / urban environment rearrangement project association establishment consent form). However, the written consent that the promotion committee is gathered did not state any content in the column of “design outline of the new building” and “the estimated amount of the cost of removal of buildings and new construction” as follows, the rearrangement zone name was indicated as “(iv) zone,” and the matters concerning cost-sharing were stated.

2) On October 0, 2006, the Mayor of Busan Metropolitan City designated 132,100 square meters as a zone redevelopment planned zone redevelopment planned zone redevelopment, the above promotion committee applied for approval for the establishment of the association promotion committee on the same day, and the defendant approved the composition of the above promotion committee on October 00, 2006.

3) On October 0, 2007, the Mayor of Busan Metropolitan City designated 000 - 000 - 135,040 m as zero houses redevelopment improvement zone. The said promotion committee held the inaugural general meeting on October 0, 2007.

4) At the inaugural general meeting of a cooperative held as above, the resolution on housing redevelopment project, approval of the committee's settlement of accounts and association budget bill, approval of the selection of external auditors and tax accountants, etc. were resolved with the attendance of 497 to 502 members, and with the consent of most of the participants present at the meeting. However, the resolution on housing redevelopment improvement project, which is the agenda item No. 1, consented to the formulation of a rearrangement zone designation and improvement plan according to the contents attached to the meeting of the inaugural general meeting of a cooperative for housing redevelopment improvement project, and agreed to the preparation and contents of the written consent to the establishment of a housing redevelopment improvement project association.

5) After holding an inaugural general meeting, the said promotion committee indicated the column of "to outline the design of a new building" and "to estimate the cost of removing and constructing a new building" in the part of the rearrangement zone's name, and also applied for authorization for establishment as a result of submitting 1187 copies of such written consent to the Defendant on the ground of the consent of the owner of a plot of land, etc.. (6) The Defendant added 865 owners of a plot of land, etc. [excluding 12 owners of a plot of land, etc. (i.e., persons whose location is not verified), 2 owners of a plot of land, etc.], 697 persons (excluding 704 persons who agreed (i.e., 9 persons other than 704 persons) and 2 others (i.e., referring to the reason for failing to consent), and calculated the ratio of 80% by 508.7%

00. 00. A disposition to authorize the establishment of a partnership.

7) After formulating a project implementation plan, 20 district Housing Redevelopment Project Association established a project implementation plan and submitted it to the defendant on October 0, 2008, and the defendant issued a disposition of approval of a project implementation plan on October 0, 2008.

[Grounds for Recognition: Evidence Nos. 1, 3 through 7, Evidence Nos. 1, 2, 3, 5, 6, 9 (including branch numbers), and the purport of the whole pleadings]

D. Determination

1) Article 16(1) of the Urban Improvement Act provides that “When an association establishment promotion committee intends to be established, an association shall be authorized by the head of the Si/Gun with the consent of at least 4/5 of the owners of the land, etc. and the documents prescribed by the Ordinance of the Ministry of Construction and Transportation shall be attached thereto,” and Article 2 Subparag. 9(a) of the Urban Improvement Act provides that “the owner of the land or structure located in the rearrangement zone or the person holding superficies thereof shall be the owner of the land or the person holding superficies thereof,” and Article 4(1) and (2) of the Urban Improvement Act provides that “the head of the Si/Gun shall apply for the designation of the rearrangement zone by attaching the rearrangement zone and the size of the rearrangement zone, etc. - authorization for the establishment of the association - authorization for the commencement of construction - authorization for the commencement of construction - authorization for the relocation of the association - authorization for the completion of construction and relocation of the association.” Article 16(1) of the Urban Improvement Act provides that “The head of the land owner, etc. shall allocate 2 within the association’s.

In full view of these regulations, the most basic and main requirements for the establishment of a housing redevelopment improvement project association are the consent of at least 4/5 of the owners of a plot of land, etc., and the consent shall be based on the written consent stipulated in the design outline of a building to be constructed which is the main contents of a housing redevelopment improvement project, the total cost required for the removal or new construction of a building, the sharing of expenses, and the matters concerning the ownership after completion of the project, and the designation of a rearrangement zone and the scope of the owners of a plot of land, etc. shall be determined on the premise that such consent is obtained.

2) Defect in the time of the written consent and the lack of statutory matters

As seen earlier, the said promotion committee began to gather written consent from the beginning of 2006, and most of the written consent submitted by the said promotion committee based on the consent of at least 4/5 of the owners of lands, etc. were collected at the beginning of 2006, and the entire written consent collected by the said promotion committee was this blank space, “the outline of design for the district name and new building construction,” and “the estimated amount of the cost of removal of buildings and new construction.” This was the same.

00. 00. Busan Do-dong 000 - 00 Won was designated as a zone to be maintained, and 2007.

00. The relationship in which one member of the above land was designated as a rearrangement zone in early 2006, and the scope of the owners of the land, etc., which is premised on the designation of a rearrangement zone, was not determined as well as the time when the plan for a rearrangement project could not be formulated, because the written consent of the owners of the land, etc. was the one in which one member of the above land was designated as a rearrangement zone, and the one in which one member of the above land was designated as a rearrangement zone in early 2006, the scope of the owners of the land, etc., which is premised on the designation of a rearrangement zone was not determined.

Therefore, since most of the collected written consent was made at the time when the written consent could not be written, there was no statutory matter, it cannot be said that there was the consent of the owner of the land, etc.

3) Whether to supplement the defects following the supplement after the fact

Meanwhile, according to the contents attached to the meeting data of the inaugural general meeting of the Housing Redevelopment Improvement Project Association in 200 area, "a resolution of the contents was passed at the inaugural general meeting of the Housing Redevelopment Project Association," and the said promotion committee entered the name of the district and the size of the building to be newly constructed, etc. in the public column as above. If such supplementary act of the promotion committee is legitimate, the defects of the above consent can be deemed to be supplemented.

However, since the written consent for the establishment of an association is a document stating the individual intent of the owners of land, etc. to participate in a housing redevelopment project, the supplementary authority for the disturbance of consent should also be obtained individually from the owners of the relevant land, etc. Therefore, even if the above resolution of association was adopted, the supplementary authority for the whole written consent prepared in the state of public disturbance shall not be deemed to have existed.

However, in the case of the owners of lands, etc. who attended the inaugural general meeting and consented to the above resolution of the association, such supplementary authority may be deemed to have been granted to the partnership. As seen earlier, since 494 owners of lands, etc. agreed on the above agenda, the act of supplementing 494 owners of lands, etc. was lawful supplementary authority, and thus, the defect of their written consent can be deemed to have been corrected. However, the number of the owners of lands, etc. who can be seen as legitimate consenters at the stage of approving the establishment of the defendant's association is 496 persons (4 persons who agreed to the above resolution of the association as above, and if two persons are added, the maximum number of consenters shall be 496 persons), so the consent rate shall be 57% (496 persons of lands, etc./865 persons of lands, etc.) and therefore, the legal principles on the judgment on invalidation of administrative disposition).

In order to make an administrative disposition null and void, it is insufficient to say that there is an illegal reason, and the defect is a serious violation of the important part of the law and objectively obvious. In determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the law should be considered from a teleological perspective and reasonable consideration of the specificity of the specific case itself (see Supreme Court Decision 2005Du14363, Jun. 30, 2006).

① The above promotion committee had started to gather consent forms from 2006, and most of the written consent forms submitted by the above promotion committee was prepared before October 0, 2007, rather than the time when legitimate consent forms could have been prepared. ② The consent forms collected by the above promotion committee from the owners of lands, etc. did not contain any indication on the whole "design outline of new buildings" and "the estimated cost of removal of buildings" and "the estimated cost of construction of new buildings" are the legal matters to be stated in the consent forms, which are 0th anniversary of the construction of new buildings and the construction of new buildings, and 494 new buildings, which were submitted to the defendant at the time of 20th general meeting of the association, were no more than 0th of the construction of new buildings and 0th of the construction of new buildings and 497th of the construction of new buildings and 0th of the construction of new buildings within the rearrangement zone, and it was more than 0th of the construction of new buildings and 20th of the construction of new buildings within the rearrangement zone.

C) Sub-decisions

Therefore, the defendant's disposition of approving the establishment of the promotion committee is deemed null and void.

4. Conclusion

Therefore, the plaintiffs' claims are reasonable, and it is decided as per Disposition by admitting them.