2016Guhap1226 Governing invalidity of a disposition to designate an improvement zone for residential environment improvement projects, etc.

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17. Qua

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20. Telecommunication

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35. AI;

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37. AK;

1. Gwangju Metropolitan City Mayor;

2. The head of Seo-gu Gwangju Metropolitan City;

3. Korea Land and Housing Corporation;

June 29, 2017

August 24, 2017

1. Of the instant lawsuits, the head of Seo-gu, Gwangju Metropolitan City shall dismiss all of the claims filed by the head of Seo-gu, Gwangju Metropolitan City for authorization to implement a residential environment improvement project of the AMF area made by the Seo-gu, Gwangju Metropolitan City on December 28, 2007, and each claim filed for authorization to alter the implementation of a residential environment improvement project of the AMF area made by the Seo-gu, Gwangju Metropolitan City on May 26,

2. The plaintiffs' remaining claims are all dismissed.

3. The costs of lawsuit are assessed against the plaintiffs.

1. The Gwangju Metropolitan City Mayor:

(a) Designation and disposition of a zone to improve the residential environment of AM zones made by Gwangju Metropolitan City AO on November 1, 2007;

(b) Disposition to rescheduled an improvement zone to improve the residential environment of an AM zone to be published by Gwangju Metropolitan City, 2013, 11, and 1;

confirm that each invalidation is void.

2. The head of each Dong-gu Gwangju Metropolitan City;

A. On November 2, 2007, designating a project implementer to improve the residential environment of the AM zone for the Defendant Korea Land and Housing Corporation;

(b) Approval of a project implementation plan for the residential environment improvement project of the AM zone made by Seo-gu Gwangju Metropolitan City public notice on December 28, 2007;

(c) Disposition to authorize the alteration of a plan to implement a residential environment improvement project of the Seo-gu Gwangju Metropolitan City, Seo-gu, Seoul Metropolitan City on May 26, 2015;

confirm that each invalidation is void.

3. The head of the Dong-gu Gwangju Metropolitan City Gu shall:

(a) AM district residential environment improvement project implementation plan approved on December 28, 2007;

B. On May 26, 2015, a plan to amend the implementation of a residential environment improvement project in a certified AM zone is invalid.

1. Details of the disposition;

A. On March 17, 2005, the head of the Gu of Gwangju Metropolitan City (hereinafter referred to as the "Defendant, the head of Gu of Gwangju Metropolitan City") held a briefing session for the residential environment improvement of the AM area, stating that the head of Gu of Gwangju Metropolitan City (hereinafter referred to as the "Defendant, the head of Gu of Gwangju Metropolitan City") will implement a residential environment improvement project on March 17, 2005, in the 21,042 square meters (6,365 square meters).

(b) Establishment of a master plan to improve the residential environment of the defendant Gwangju City;

1) On January 16, 2006, Defendant Gwangju Metropolitan City Mayor (hereinafter referred to as the “Defendant Gwangju Metropolitan City Mayor”) established a master plan to improve the residential environment of the Seo-gu Seoul Special Metropolitan City (hereinafter referred to as the “Defendant Gwangju Metropolitan City”) with the content that he designates a plan for the improvement of the residential environment in the area to be planned for the improvement of the residential environment in the area of Gwangju

2) On May 1, 2007, the defendant Gwangju Metropolitan City Mayor changed the type of maintenance (existing number of clothes, changes: full) in the basic plan for residential environment improvement (existing number of clothes, changes: 150 per cent, changes: 190 per cent), building-to-land ratio (existing: 60 per cent, changes: 50 per cent) in the basic plan for residential environment improvement (existing number of clothes, changes: the whole number).

C. Designation of improvement zones in the defendant Gwangju City

1) On July 18, 2007, the head of the defendant Gwangju District Office read the improvement plan for the residential environment improvement project of the AM zone to the residents for the formulation of a residential environment improvement plan and the designation of an improvement zone, and held an explanatory meeting to the residents on August 30, 2007.

2) The head of the Defendant Gwangju Metropolitan City filed an application for designation of an improvement zone with the head of the Defendant Gwangju Metropolitan City Mayor, and the Defendant Gwangju Metropolitan City Mayor designated and publicly announced the 25,184 square meters of the Seo-gu AU Day as an improvement zone for the residential environment improvement project of the AM zone (hereinafter “instant improvement zone”).

(d) Designation of project operators and approval of project implementation plans of the head of defendant Gwangju Metropolitan City;

1) The head of the defendant Gwangju District Office stated that the resident consent ratio required by relevant Acts and subordinate statutes to designate the Korea Housing Corporation [the Korea Land and Housing Corporation was dissolved pursuant to Article 7 of the Addenda to the Korea Land and Housing Corporation (Act No. 9706 of May 22, 2009) as the project implementer, which was established by the defendant Gwangju District Land and Housing Corporation on October 1, 2009, and the Korea Land and Housing Corporation comprehensively succeeded to the rights and obligations thereof pursuant to Article 8 of the Addenda to the same Addenda; hereinafter referred to as the "Defendant Housing Corporation, regardless of whether before or after the amendment," the resident consent ratio required by relevant Acts and subordinate statutes was met as follows (No. 5) (No. 5) as the resident consent status of 75 landowners, 34 of building owners (6.7%) among 51 building owners, 48 households of 96 households (50%) and the resident consent ratio in the process of the lawsuit in this case was corrected as shown below) as the implementer of the housing improvement project in this case.

A person shall be appointed.

2) On December 28, 2007, the Defendant Gwangju District Housing Corporation submitted an implementation plan for the residential environment improvement project of the AM zone to the head of the Defendant Gwangju District (hereinafter referred to as the “instant project implementation plan”), and the head of the Defendant Gwangju District Office approved the implementation plan submitted by the Defendant Housing Corporation as the AL published in Seo-gu, Gwangju Metropolitan City (hereinafter referred to as the “instant project implementation plan”).

(e) Disposition to extend the commencement of the Defendant Housing Corporation and change the rearrangement zone;

1) On December 12, 2009, the Defendant Housing Corporation applied for the extension of the commencement period for the residential environment improvement project in the AMF to the head of the Defendant Gwangju-gu Office. The head of the Defendant Gwangju-gu Office extended the commencement period on December 22, 2009 by December 27, 2010. However, the Defendant Housing Corporation did not proceed with the residential environment improvement project in the AMF even until December 27, 2010.

2) On August 16, 2012, the head of the Defendant Gwangju Metropolitan Government made a presentation for residents to modify a plan to improve a residential environment improvement project of AM zone, and made a public perusal of the proposal to modify a plan to improve a residential environment improvement project, which changes the size of a residential environment improvement zone of AM zone (existing 25,184m, changed 25,05m, changed 25,05m), building-to-land ratio ratio of buildings, etc. to residents.

3) On November 1, 2013, the Defendant Gwangju Metropolitan City changed and publicly announced an improvement zone with the content that the area of the AMF improvement zone for the residential environment improvement project of the AMF ( there is no change in the boundary of the zone due to changes in the area of the improvement zone due to the change in the existing 25,184m, the change in the area of the land, the cadastral division and the error in calculating the area; hereinafter referred to as “instant project zone” in the total of the improvement zone for the residential environment improvement project of the AMF after the change and the building-to-land ratio and the volume ratio of the building (hereinafter referred to as “instant alteration of the rearrangement zone”).

(f) Approval of a project implementation plan of the head of defendant Gwangju Metropolitan City

1) On January 9, 2015, the Defendant Korea Housing Corporation filed an application for authorization to implement a plan to implement a residential environment improvement project in the AMF district with the purport that the housing originally built as a residential environment improvement project in the AMF district is changed from 504 households to 108 households of public rental housing units and 318 households of public rental housing units (hereinafter “instant project implementation plan”).

2) On May 26, 2015, the head of the Defendant Gwangju Metropolitan Government approved the instant improvement project implementation change plan to Seo-gu Seoul Metropolitan City, Seo-gu, Seoul Metropolitan City (hereinafter “instant project implementation change plan”).

3) Details of the approval of the project execution plan of this case and the project execution plan of this case, the project implementation change plan of this case and the approval of the project implementation plan of this case are as follows.

A person shall be appointed.

Public-sale housing 318 Generations

(g) Progress of the implementation of the AM zone residential environment improvement project;

1) On May 28, 2015, the Defendant Housing Corporation publicly announced a compensation plan on May 28, 2015, and conducted a consultation compensation procedure with residents in the instant project area through appraisal by an appraisal business entity on November 10, 2015.

2) The Defendant Housing Corporation filed an application for adjudication of expropriation with respect to residents who did not reach an agreement, and the Central Land Tribunal rendered an adjudication of expropriation on September 29, 2016, including the total amount of compensation for losses, KRW 15,860,801,180, and November 22, 2016 from the date of commencement of expropriation. The Defendant Housing Corporation paid or deposited compensation for losses to the owners.

3) From June 2017, the Defendant Housing Corporation was scheduled to commence apartment construction works within the instant project zone from around June 2017, but the commencement was delayed due to the instant lawsuit filed.

[Ground of recognition] Facts without dispute, Gap's entry of Gap's 1 through 7, 15, 16, 19, 20 evidence, Eul's 4, 5 through 8, Eul's 1 through 5, 7, and the purport of the whole pleadings

2. The plaintiffs' assertion

Each disposition of this case is unlawful as follows, and its illegality is serious and clear, and each disposition of this case is null and void.

1) The illegality of the designation of the rearrangement zone in the defendant Gwangju City

A) Review of the designation requirements for the rearrangement zone under Article 4 (1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785 of Dec. 21, 2007; hereinafter referred to as the "former Act") should be determined on the basis of the date of ‘establishment of maintenance plan' or ‘designation designation of improvement zone'. However, the head of Si/Gun/Gu without examining whether the designation requirements for the rearrangement zone have been met, such as the current status survey, and the head of Si/Gun/Gu applied for the designation of the rearrangement zone in this case at the request of the head of Si/Gun/Gu. Thus, the designation requirements for the rearrangement zone in this case was not examined and illegal. In other words, the head of Si/Gu of Gwangju formulated the improvement plan for the reasons that the rearrangement zone in this case is included in the planned rearrangement zone in the residential environment under the basic plan for residential environment improvement as determined by the defendant Gwangju metropolitan City, and the head of Si/Gun/Gu of Gwangju metropolitan City without further review.

B) The requirements under subparagraph 1 (e) and (f) 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. 2007, 12, 31, and Presidential Decree No. 20506, hereinafter referred to as the "former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas

The defendant Gwangju City issued a disposition to designate the rearrangement zone of this case on the premise that the rearrangement zone of this case falls under subparagraph 1 (e) and (f) of attached Table 1 of the Enforcement Decree of the former Act.

However, since the rearrangement zone in this case cannot be deemed to have difficulty in escape and rescue activities in the event of a disaster due to a significant lack of rearrangement basis facilities, it does not meet the requirements of subparagraph 1 (e) of attached Table 1 of the former Enforcement Decree of the Act on the Improvement of Urban Areas. In other words, Gwangju Metropolitan City also stipulates the requirements of the area subject to the establishment of rearrangement plan under Article 4 of the former Ordinance on the Improvement of Urban Areas and Residential Environments (amended by Gwangju Metropolitan City Ordinance No. 3764, Jan. 1, 2010; hereinafter referred to as the "former Ordinance on the Improvement of Urban Areas"). Article 4 subparagraph 1 (d) of the former Ordinance on the Improvement of Urban Areas of Gwangju Metropolitan City provides that "an area where the length of a road less than four meters in width is less than 40% of the total length of a road or where a house adjoining a road is less than 30% in width is designated as a residential environment improvement zone. However, the rearrangement zone in this case does not have a share of less than 40%, and even if there are substantially lack of evacuation infrastructure facilities.

In addition, since the rearrangement zone of this case cannot be deemed to have fulfilled its function as a residential area or significantly damaged the urban landscape due to the concentration of old and inferior buildings, it does not meet the requirements of subparagraph 1 (f) of attached Table 1 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas. In other words, the term "old and inferior buildings" means buildings for which 20 years have passed since the completion of the construction, and which require removal due to structural defects, etc. caused by the deterioration of buildings and structural defects. In addition, the defendant Gwangju City did not conduct a field investigation as to whether the building in this case was inevitable when the designation of the rearrangement zone of this case was made, and "old and inferior buildings" were calculated based only on the completion of construction of buildings. Furthermore, even if the number of buildings corresponding to old and inferior buildings falling under Article 4 subparagraph 1 (a) of the former Ordinance on the Maintenance and Improvement of Urban Areas falls under the area where buildings are located or more than 1/2 or more than 1/5 without permission under Article 4 of the former Ordinance on the Maintenance and Improvement of Urban Areas, it cannot be seen to fulfill its function as residential beauty.

2) The illegality of the disposition to designate the project operator of this case

A) According to the Act on the Maintenance and Improvement of Urban Areas under which the procedures for consent are not complied, the head of the defendant Gwangju City shall establish a rearrangement plan, make it available to residents, hear the opinions of the local councils, and apply for the designation of the rearrangement zone to the defendant Gwangju City Mayor (Article 4(1)). Based on the date of designation and public announcement of the rearrangement zone, the project implementer may be designated and implemented with the consent

Nevertheless, the head of the defendant Gwangju District Office requested the project implementer's consent before formulating the improvement plan, and even when calculating the consent rate prescribed in Article 7 (1) of the former Act, it did not be based on the date of designation and public announcement of the improvement zone.

B) According to Article 7(1) of the former Act, which was implemented at the time of the instant project implementer’s designation and disposition, pursuant to Article 7(1) of the former Act, the residential environment improvement project may be implemented directly by the head of a Si/Gun or by designating the housing construction project as the project implementer with the consent of at least 2/3 of the owners of the land and the number of tenants as of the date of designation and public announcement of the rearrangement zone. Nevertheless, the head of the Defendant Gwangju-gu Office, while failing to meet the requirements for consent of the owners

3) The illegality of the instant project implementation plan of Defendant Housing Corporation and the approval of the project implementation plan of Defendant Gwangju District Office

Since it is illegal to designate the Defendant Housing Corporation as the project implementer of the instant improvement project, the approval of the instant project implementation plan and the project implementation plan prepared by the Defendant Housing Corporation is unlawful.

4) The illegality of the disposition changing the rearrangement zone of the defendant Gwangju City

A) The instant disposition to modify the designation of the rearrangement zone to meet the requirements for formulating a rearrangement plan for the residential environment improvement project fails to meet the requirements under the items of Article 10(1) [Attachment 1] of the Enforcement Decree of the former Act, as in the instant disposition to designate the rearrangement zone

(B) If the head of a local government based on the satisfaction of the requirements for the consent of the residents passes through a public inspection procedure for a new improvement plan which has caused a significant change to the existing improvement plan, the procedures for the consent of the residents for the implementation of a residential environment improvement project under the

Since the instant rearrangement zone designation disposition and the instant rearrangement zone alteration disposition are significantly different in terms of the timing of implementing residential environment improvement projects, the implementer of infrastructure parts, and the method of constructing multi-family housing, if the head of the Defendant Gwangju Metropolitan City peruses the residents of the new improvement plan that has been significantly modified in the existing improvement plan to implement the alteration designation of the rearrangement zone, he/she shall proceed with the procedures for obtaining the residents’ consent to implementing the residential environment improvement project in accordance with the revised improvement plan. Nevertheless, the Defendant Gwangju Metropolitan City issued the instant

5) The illegality of the project implementation change plan of the Defendant Housing Corporation and the authorization of the project implementation change plan of the head of Defendant Gwangju District Office

Since the designation of the Defendant Housing Corporation as the project implementer of the instant improvement project is illegal, the instant project implementation change plan prepared by the Defendant Housing Corporation was unlawful. Moreover, the Defendant Housing Corporation failed to commence the project by the commencement date of the instant improvement project, which was extended, and the revocation of the designation of the project implementer was caused. Therefore, the authorization of the project implementation plan granted by

3. Relevant provisions

It is as shown in the attached Form.

4. Ex officio determination as to whether each of the dispositions approving the project implementation plan of this case and the dispositions approving the change plan of the project implementation of this case is legitimate

A. The project implementation plan formulated by a housing redevelopment and rearrangement project association on the basis of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”) constitutes a binding administrative disposition against interested parties when it becomes final and conclusive through a public notice of authorization (see Supreme Court Order 2009Ma596, Nov. 2, 2009). The act of an administrative agency that approves a project implementation plan constitutes a supplementary act that satisfies the legal effect as to a project implementation plan of a housing redevelopment and rearrangement project association (see Supreme Court Decision 2007Du16691, Jan. 10, 2008). Therefore, if the basic act is lawful and valid, and there is a defect in the approval itself as a supplementary act, if there is no defect in the basic act, the invalidation or revocation of the authorization disposition can be asserted, regardless of whether there is a defect in the basic act, the revocation or revocation of the authorization disposition can not be claimed immediately on the ground of the invalidation of the basic act (see Supreme Court Decision 2009Du413939, Dec. 29, 20109).

B. In light of the above legal principles, the plaintiffs' assertion was illegally designated as the project executor of the project of this case and the project implementation change plan of this case was prepared by the defendant Housing Corporation in which the grounds for revocation of the designation of the project have occurred, and thus, each authorization disposition of the head of the defendant Gwangju-gu, which approved it is null and void. This merely addresses defects in the project implementation plan, which is a basic act, and its modification plan, and it cannot be deemed as a defect in the approval disposition itself. Therefore, the part concerning the approval of the project implementation plan of this case and the project implementation change plan of this case among the lawsuit of this case concerning the project of this case concerning

5. Judgment on the merits

(a) Determination (comprehensive)

1) In order for a defective administrative disposition to be null and void as a matter of course, it must be objectively obvious that the defect is a serious violation of an essential part of the law and its purpose, meaning, function, etc. in determining whether the defect is significant and obvious, and at the same time, reasonable consideration should be given to the specificity of the specific case itself. Meanwhile, in a case where an administrative agency has taken an administrative disposition by applying a provision of a certain Act to a certain legal relationship or fact-finding, the provisions of the Act cannot be applied to such legal relationship or fact-finding in a case where the administrative agency has taken the administrative disposition by applying the said provision, notwithstanding the absence of room for dispute over the interpretation of the legal principle clearly stated, it shall be deemed that the defect is significant and obvious. However, if there is room for dispute over the interpretation of the provisions of the Act to the legal relation or fact-finding, it is evident that the administrative disposition erred by misapprehending the fact-finding requirement, and thus, it cannot be said that the defect is evident that it is evident that there is an objective mistake or apparent error in the content of the administrative disposition (see Supreme Court en banc Decision 94Nu6Da2, supra, etc.).

2) In the case of this case, even if the existence of each of the dispositions in this case claimed by the plaintiffs does not exist as follows, or even if it exists, it is possible to know the existence only when the material of the facts is accurately examined, or it is not clearly revealed that the application of the relevant legal relations or provisions of the Act on the Relations is erroneous, and such defect is not obvious (the same shall apply in cases where, even though the plaintiff knows the progress of the project in this case, he/she does not dispute the lawsuit in this case by filing a lawsuit against each of the dispositions in this case after the lapse of several years from each of the dispositions in this case). Ultimately, the plaintiffs' claim is not accepted, and it is specifically determined by each disposition in detail.

B. The part concerning the designation of the rearrangement zone in this case

1) According to Article 4(1) of the former Act and Article 10 [Attachment Table 1] subparag. 1 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas, the head of a Si/Gun shall, within the scope consistent with the basic plan, separately determine a City/Do Ordinance within the scope provided for in subparagraphs 1 through 4, the requirements for the establishment of a rearrangement plan, such as the number of old and inferior buildings, if necessary, may be separately prescribed by the Ordinance of a City/Do within the scope provided for in subparagraphs 1 through 4.

Accordingly, Article 4 subparagraph 1 of the former Gwangju City Improvement Ordinance stipulates that the designation of the rearrangement zone shall be made as an area subject to the establishment of the improvement plan for residential environment improvement if only one of the requirements, such as "area (a) where the number of buildings falling under the deteriorated and inferior buildings is at least 1/2 of the total number of buildings in the zone subject to improvement, or where the unauthorized building is at least 1/5 (a) and "area (d) where the length of a road less than 4m wide is at least 4m within the zone subject to improvement is at least 40% of the total length of a road, or the house adjoining rate is at least 30% adjacent to a road at least 4m wide (d). Therefore, the designation of the rearrangement zone in this case is legitimate if only one of the criteria provided for in the items of

Meanwhile, “a building prescribed by ordinance of a City/Do as prescribed by Presidential Decree” under Article 2 subparag. 3 (c) of the former Act and Article 2 (2) subparag. 1 of the former Enforcement Decree of the Act on the Maintenance of Urban Areas and Dwelling Conditions for Residents due to structural defects caused by deterioration of the building refers to a building for which 20 years, etc. have passed since its completion and its removal is inevitable due to deterioration of the building and structural defects, etc. (see Supreme Court Decision 2010Du16592, Jun. 18, 2012).

2) According to Gap evidence Nos. 9 and Eul evidence No. 5, the total length of roads in the project site of this case is 1,231m and the length of roads less than 4m wide is less than 528m, and the length of roads less than 4m wide within the project site of this case is 42.89% of the total length of roads, thereby satisfying the requirements under Article 4 subparag. 1 (d) of the former Ordinance on the Maintenance of Gwangju City.

The plaintiffs asserted that the above site alleged by the plaintiff should be excluded from the calculation of the ratio of the length of a road less than 4 meters wide solely on the ground that the land category of the above site alleged by the plaintiff can be recognized as a road, and that it should not be excluded from the calculation of the ratio of the length of a road less than 4 meters wide merely because it is not actually used as a road, since the above site is a road, the old road incorporated into the Seo-gu AV and AW in 1988, ② AX, AY, and the old farm road not used, ③ the old farm road not used, ④ the old farm road not used, and ④ the new warehouse constructed in the year 2007, and the new warehouse in the year 2007, and the new warehouse in the year 2007, were 4m or more of the 4m or more of the 4m or more of the 4m or more of the 16m or more of the 204m of the 207.

3) The following facts found by Eul’s evidence Nos. 5 and 8 are as follows: (i) the head of the defendant Gwangju-gu considers that old and inferior buildings in the project site of this case constituted 45 Dong (71.4%) among 63 Dong (71.4%) in consideration of the completion time of the building, structural defect, and defect in building facilities; and (ii) applied for the designation of the project site of this case as an improvement zone; and (iii) considering the fact that the defendant Gwangju-gu considered that the ratio of old and inferior housing in the project site of this case constitutes 75% in the project site of this case and the designation disposition of the improvement zone of this case was taken, it is reasonable to deem that the defendant Gwangju-gu Seoul-gu designated the improvement zone of this case as of the time of the designation disposition of the improvement zone of this case.

Even if Defendant Gwangju City did not consider whether the removal was inevitable due to deterioration and structural defects, and determined the requirements for the designation of a rearrangement zone based only on the time of completion of the building, in light of the fact that the relevant administrative agency’s designation of a housing redevelopment zone under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions is based on the professional and technical judgment on urban policies for the necessity of restoring urban functions or the improvement of defective residential environment and for the efficient improvement thereof within the scope of statutes, and that a wide range of discretion is recognized. At the time of the instant designation disposition, the Supreme Court has not rendered an explicit decision on the concept of old and inferior buildings under Article 2 subparag. 3 (c) of the former Act at the time of the instant designation disposition, it is difficult to see that even if the above requirements for the designation of a rearrangement zone

C. The part concerning the designation of the project implementer of this case

1) Whether the consent procedure is unlawful

Article 7 (1) of the former Act on the Improvement of Urban Areas and Dwelling Conditions for Residents may directly implement a residential environment improvement project with the consent of at least 2/3 of the owners of a plot of land, etc. as of the date of designation and announcement of a rearrangement zone under Article 4 (3) and the consent of at least two-thirds of the number of tenants (referring to a person who has resided in the rearrangement zone for at least three months before March of the public announcement date under Article 4 (1)) and the designation and implementation of the Housing Corporation, etc. may be made by designating the project implementer and implementing the Housing Corporation, etc. as the project implementer."

2) Whether the consent rate under Article 7(1) of the former Act is complied with

A) Article 7(1) of the former Act provides that a residential environment improvement project may be implemented directly by the head of a Si/Gun or by designating the Housing Corporation, etc. as a project implementer with the consent of at least 2/3 of the owners of a plot of land, etc. as of the date of designation and public announcement of an improvement zone under Article 4(3) and the consent of at least two-thirds of the owners of a plot of land, etc. (referring to those who have resided in the rearrangement zone in question for at least three months before the date of public announcement under Article 4(1)). In addition, Article 17 of the former Act provides that "the matters necessary for the method and procedure for calculating the consent of the owners of a plot of land, etc. under Articles 13 through 16 shall be prescribed by the Presidential Decree" (Article 13), the organization and operation of the promotion committee (Article 15), the methods and procedure for calculating consent of the implementer of a residential environment improvement project and the method and procedure for withdrawing consent of the owners of a plot of land, etc. shall not be separately prescribed in accordance with Article 16(4).

B) Consent rate of owners of land, etc.

(1) The plaintiffs' assertion (36.6% = 30 persons/82)

The owner of land, etc.: ① “BD loan located in Seo-gu, Seo-gu, Gwangju, in the instant project zone, is registered as a sectional owner as a sectional owner, as well as BE, AC, AAD, AD, and AB, and the head of the Defendant Gwangju District calculated only the Z as the owner of the land, etc., the remainder of five shall be added to the total number of the owners of the land, etc. (+5). ② G was the owner of the building located in Seo-gu, Seo-gu, Gwangju at the time of designation and public announcement of the instant improvement zone, and (1) BF was killed before the date of designation and public announcement of the instant improvement zone, and (3) BG was already included in BG, BH, BI, and BJ but the rest of heirs (BH, BI, and BJ) is included in BF on behalf of the owner of the land, etc., and (2) the total number of the owners of the land, etc. and (3) one and five (1) BJM was already included in BJ and one (1).

From among the owners of the land, etc., the consent person (molecule) among the owners of the land, etc.: ① N, S, U,V, N, K, K, J, I, BP, Q, BP, BR, BS, BS and BS, BT, BB and BV, BU and BV, BW, BX, BX, BY and BY 19, ② as of the date of designation and public notice of the improvement zone in this case, BZ (land sale to the CA), CBCC (land sale to the CA), BL, BK (Death), and BK (Death) were not owners of the land, etc. (-4); ③ The improvement project on the Seo-gu Seoul Special Metropolitan City owned by the CD-gu was directly implemented by the head of the Defendant, and the consent of the Korea National Housing Corporation (No. 6-3) is indicated as the project implementer’s consent to the designation of the project implementer in this case (No. 54).

(2) Defendants’ assertion (as to consent rate = 75.6% = 59 persons/78)

1) Article 28(1)4 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas provides that “The owner of a plot of land, etc. (hereinafter “owner of a plot of land, etc.”) shall include the State and public land in the management agency of state and public land, the Superintendent of the Office of Education (Seoul Metropolitan City, Seo-gu, Gwangju Metropolitan City, Seo-gu, Gwangju Metropolitan City, Seo-gu, Gwangju Metropolitan City, Gwangju Metropolitan City, Gwangju Metropolitan City, Gwangju, and the Ministry of Land, Infrastructure and Transport (Seoul, etc.), and the Ministry of Strategy and Finance (Seoul, etc.) in the owner of a plot of land, etc.” (+ 5). Accordingly, the total number of the owners of land, etc. in the project area of this case is 78 persons (75 persons (1) - 2 + 5 persons) who agreed to the disposition of the State and public land in this case, 5 persons who agreed to the disposition of the State and public land in this case are owners of a plot of land, etc. (i.e., five persons) persons who agreed to the disposition of the State and public land in this case.

(3) Determination

In light of the above facts, the aforementioned facts are as follows: (i) the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents does not separately provide for the methods, procedures, withdrawal of consent, etc. of the owners of land at the time of the designation and disposition of the project implementer as seen earlier; (ii) the head of Gwangju City obtained the consent of the residents on March 17, 2005; (iii) the public official in charge of calculating the rate of consent of the owners of land, etc. directly visited the residents or by mail, etc.; (iv) whether the consent of the owners of land, etc. was forged or replaced by the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents; and (iv) the Plaintiffs were unable to separately examine the data on factual basis, such as whether the consent of the owners of land, etc. was forged or replaced by the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents; and (v) the number of owners of land, etc. at the time of the amendment of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents.

c)The consent rate of tenants;

(1) The number of tenant households in the instant project zone shall be 80 households, except for 16 households, other than those subject to consent, among the 96 households of tenant tenants calculated by the head of Dong-gu (the 31.2% consent rate = 25 households/80 households). Since the consent of 15 tenants (CM, CN, CO, CCP, Q, CCR, CTS, CTS, CU, CW, CY, CY, CY, CZ, CZ, CZ, and DA) are forged or replaced and invalid, the number of tenant households in the instant project zone, 40 households claimed by the Defendant, which agreed to the designation of the instant project operator, among the tenant tenants in the instant project zone, is 25 households. Accordingly, the agreement to the designation of 31.2% (25 households/80 households) out of the tenant tenants in the instant project zone, was reached.

(2) According to the defendants' assertion (the consent rate of 50.6% = 40 households/79 households), the number of tenants in the project site of this case is 97 households. However, the two households of the tenants who do not actually reside at the time of the on-site investigation, and the tenant who did not reside in the relevant improvement zone for more than three months from three months before the date of the public inspection of the improvement plan (the date of July 18, 2007) or the tenant who did not reside in the rearrangement zone at the time of the designation of the rearrangement zone of this case was 16 households, so the tenant who is subject to the consent to the designation of the rearrangement zone of this case is 79 households, and 40 of the tenants who agreed to the designation of the rearrangement zone of this case, 50.6% of the tenants in the project area of this case (40 households/79 households).

(3) Determination

In full view of the following facts: (a) the tenant in the project site of this case was investigated into 97 households; (b) the tenant in the project site of this case was not actually residing; (c) the two households in question (hereinafter referred to as the “agreement”) can be found to have not actually resided; (d) the resident public inspection public inspection public announcement announcement ( July 18, 2007) the tenant did not reside in the rearrangement zone for three months or more; or (d) the tenant who did not reside in the rearrangement zone at the time of the designation of the rearrangement zone under Article 7(1) of the former Act did not have any dispute between the parties; (b) the tenant who did not consent to the designation of the project site of this case is 79 households in total; (c) the tenant who did not consent to the designation of the project owner of this case is not entitled to consent to the designation of the tenant under Article 7(1) of the former Urban Improvement Act (i) the tenant who did not consent to the designation of the project owner of this case, and (iv) the tenant's consent to the designation of this case was not applied separately.

Therefore, since the tenants who agreed to the disposition to designate the instant business entity is 50.6% (=40 households/79 households), the agreement rate of the number of tenants prescribed in Article 7(1) of the former Act was satisfied. The Plaintiffs’ assertion that the agreement rate of the number of tenants’ households falls short of the standard prescribed in Article 7(1) of the former Act is not accepted. Even if the consent rate is forged as alleged by the Plaintiffs, such factual basis can only be seen as having been separately examined, and it cannot be readily concluded that the defect is apparent from appearance. The project implementation plan part of the instant project implementation plan part is apparent.

As seen earlier, the instant project implementation plan prepared by the Defendant Housing Corporation cannot be deemed null and void due to the apparent defect in the instant project operator’s designation disposition designated by the Defendant Housing Corporation as the project implementer. The Plaintiff’s assertion is rejected.

D. The part concerning the disposition to change the rearrangement zone in this case

1) Whether the requirements for establishing a rearrangement plan for a residential environment improvement project are satisfied

As examined earlier, ① the total length of roads in the instant project site falls under 42.89% of the total length of roads in the instant project site with a width of less than 1,231 meters and less than 4m in width falls under 528m, and ② the ratio of old and poor houses in the instant project site constitutes 75% of the total length of roads. Therefore, the instant change of designation of the rearrangement zone constitutes the following: (a) the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 12116, Dec. 24, 2013); (b) 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. 25633, Sep. 24, 2014) [Attachment 1] and Article 4 subparag. 1 of the Seoul Metropolitan City Ordinance on the Maintenance and Improvement of Residential Environment (amended by Ordinance No. 4360, Mar. 1, 2014).

2) Whether the resident consent requirements are not satisfied

However, Article 4 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 12116, Dec. 24, 2013) (amended by Act No. 12116, Dec. 24, 2013) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 12116, Dec. 24, 201) does not stipulate that the head of the Si, etc. shall obtain the consent of the residents in designating the rearrangement zone or changing the designation of the rearrangement zone.

E. The amendment plan of the project implementation of this case

As seen earlier, it cannot be deemed null and void due to the serious and apparent defects in the instant disposition of designating the Defendant Housing Corporation as the project implementer. As such, the instant project implementation change plan prepared by the Defendant Housing Corporation cannot be deemed null and void. The Plaintiff’s assertion is rejected.

6. Conclusion

Among the lawsuit of this case, the part of the claim for nullification of each of the disposition approving the project implementation plan of this case and the change plan of the project implementation plan of this case is unlawful, and all of them are dismissed, and the remaining claims of the plaintiffs are not correct, and they are dismissed in entirety. It

The Superintendent of the Supreme Court;

Judges Park Byung-il

Judge Dok-un

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.