208Guhap28714 Invalidity of the management and disposal plan

1. ○○○

2. 00

3. ○○○

4.O; and

5. ○○○

6. ○○○

7. 00

○○ Housing Redevelopment Project Association

May 28, 2009

June 11, 2009

1. The plaintiffs' primary claims are dismissed.

2. The defendant passed a resolution at an extraordinary general meeting on October 29, 2007 and revoked the management and disposition plan approved by the head of ○○○○○ in Seoul Special Metropolitan City on June 26, 2008.

3. The costs of lawsuit shall be borne by the defendant.

In the first place, the Defendant passed a resolution at the extraordinary general meeting on October 29, 2007, and confirmed that the management and disposal plan authorized by the head of this Seoul Special Metropolitan City ○○○○ Office on June 26, 2008 is null and void. In the second place, the judgment is the same as the Disposition 2.

1. Details of the disposition;

A. On June 22, 2007, the Defendant was established for a housing redevelopment and improvement project (hereinafter “project in this case”) whose project implementation district covers a square of 7 meters in Seoul ○○○○○○○○○○, Seoul, and 283 and 260, the Defendant is a housing redevelopment and improvement project partnership which has obtained authorization for establishment from the head of the Seoul Special Metropolitan City ○○○○○○, and the Plaintiffs are the Defendant’s members.

B. On September 4, 2007, the Defendant Union obtained the approval of the head of ○○○ from the head of ○○○ in Seoul Special Metropolitan City on the implementation of the instant project. On October 10, 207, the Defendant Union requested an appraisal of the price, etc. of the previous land or buildings for each object of sale to ○○ appraisal corporation and ○ appraisal corporation on October 19, 2007, and received notification of the results of each appraisal from the said appraisal corporation.

C. On October 22, 2007, the Defendant Union posted a notice of convening a general meeting (hereinafter “instant general meeting”) to formulate the instant management and disposal plan on the union’s bulletin board, etc. The Defendant Union sent to the union members a letter of resolution and a notice of convening a general meeting of this case, accompanied by an envelope for return, by registered mail.

D. On October 22, 2007, the Defendant Union sent to each member by registered mail a document containing the amount of assessment of the previous assets of each member around the 25th of the same month, which pertains to the purpose and agenda items of the instant general meeting (No. 5).

E. Meanwhile, in order to avoid the sales price ceiling system to the members of the Defendant Union, there is a request for approval of the management and disposal plan since the end of November 2007. Thus, since October 15, 2007, the Defendant Union issued an order requiring a resolution of the general meeting to collect a written resolution containing the opinion on the approval of the draft management and disposal plan from October 15, 2007 to the date of the instant general meeting, and collected a written resolution of 1 and 245 in the aggregate until the date of the instant general meeting, and the date of preparation reaches 371th of the same month.

F. Of the books of the management and disposition general meeting distributed by the Defendant Union to its members prior to the holding of the instant general meeting, only the total appraised value of the previous land or buildings, which is not the appraised value of the previous assets for each person subject to sale, shall be stated in relation to the current status of the appraisal of the previous land or buildings, and the cost and the estimated amount of each purchase by each unit of the same subparagraph, and the sale price by each unit of the same subparagraph shall be stated in the following: (a) the cost and the estimated amount of each purchase by each unit of the facility; and (b) the sale price by each unit of the facility, the sale by each unit of the facility

G. On October 29, 2007, the Defendant Cooperative held the general meeting of this case and resolved a management and disposition plan with the consent of 1,295 members (in writing, 1, 245 members + 50 members). On June 26, 2008, the Defendant Cooperative obtained the approval of the management and disposition plan from the head of ○○○○○ (hereinafter “the management and disposition plan of this case”) after it was established through the general meeting of this case.

[Grounds for Recognition] Unsatisfy, Gap 1-6, 11, 12, 14, 15, 22, Eul 1, 22, 2, 5, 9, 10, 10

Part of the testimony of ○○○, ○○, ○○, ○○○, and ○○○, including a Serial number)

(other than the part not believed) the purport of the whole pleading

2. Whether the instant management and disposition plan is lawful

A. The plaintiffs' assertion

The management and disposal plan of this case, which is an objection to the principal interest of the members of the association, has been resolved by a written resolution drafted under the circumstances where information on the previous assets by each member of the association was not provided by the defendant association. In addition, the defendant association closed its office from October 26, 2007 to October 28, 2007, deprived the association members of the opportunity to submit an additional written resolution and right to withdraw their written resolution. At the time of the general meeting of this case, the company deprived the association members of their voting rights by restricting the union members' position at the meeting of the union members. This defect is serious and obvious, and thus the management and disposal plan of this case is null and void. Even if it is not null and void, the above defect constitutes grounds for revocation.

(b) Relevant statutes;

As shown in the attached Form.

C. Determination

(1) The validity of a management and disposition plan based on a written resolution, made without any information on the amount of appraisal of the previous assets and the additional charges for each member.

According to Article 24(3) and Article 48(1) and (5) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the "Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents"), the project implementer is not obliged to notify its members of the amount of rights and additional charges before the general meeting for the establishment of the management and disposal plan, i.e., the project implementer, although the relevant Acts and subordinate statutes explicitly stipulate that the amount of rights of each member of the association and the amount of additional charges are not included in the disposal and disposal plan for each member of the association before the general meeting for the establishment of the management and disposal plan is held, the project implementer is not obliged to present at the 6th general meeting for each of the members of the association and to present at the 1st general meeting for each of the members of the association, and the detailed statement and appraisal value of each of the members of the association for each of the former members of the association, and the additional amount of charges to be distributed to each of the members of the association before the general meeting is held.

However, in order for the management and disposal plan of this case, which is an administrative disposition, to be null and void as a matter of course, it is insufficient to say that there is a defect in the disposition, and it should be objectively obvious that the defect is a serious violation of the important part of the laws and regulations, and in determining the importance and apparentness of the defect, the purpose, meaning, and function of the laws and regulations should be examined from a teleological perspective and reasonable consideration of the special nature of the specific case itself at the same time. In light of the above, there is no express legal provision stipulating that the members shall be notified in advance of the appraised value of the previous land or structure subject to parcelling-out and of the site or structure scheduled for parcelling-out before the general assembly of the management and disposal plan, and Article 5(1) of the Articles of association of the defendant association provides that the above matters shall be notified to the members when the notice of the management and disposal plan is given. Thus, it cannot be deemed that the above defects are serious, and thus, the management and disposal plan of this case is not null and void.

In this regard, the defendant asserts that 252 of the members of the defendant association who submitted a written resolution was cured since the defendant association submitted a written resolution "to understand the situation of the defendant association and voluntarily prepare a written resolution, and to maintain the same opinion as that specified in the previous written resolution at present." Thus, the defendant asserts that the defect of the written resolution due to non-disclosure of information is cured.

According to the statement 1 to 252 of Eul evidence 3-1 to 252, among the members of the defendant union, 252 of the members of the defendant union prepared a written confirmation as to the contents as alleged in the above defendant union between October 21, 2008 and October 27, 2008, it is difficult to view that the defect in the above written resolution is cured only with the written confirmation that some of the 1,274 members expressed their intent to maintain their opinions in the previous written resolution after the approval of the management and disposition plan.

(2) Whether there is any other defect

The defendant union closed its office from October 26, 2007 to the 28th of the same month and deprived its union members, including the plaintiffs, of the opportunity to submit additional written resolution and right to withdraw written resolution. At the general meeting of this case, it is difficult to believe that some of the testimony of the witness ○○○, ○○○, and ○○○○○○○○○'s own testimony does not fit it, and it is difficult to recognize it solely on the basis of the results of fact-finding on the Gap 7-10, 16, 17 evidence (including each number) and the result of fact-finding on the ○○○○○○ corporation of this court, and there is no other evidence to acknowledge that there is no different extent of the above written resolution from the above 6-written resolution form, even if some union members' exercise of rights is restricted, it does not admit that there is a significant and apparent difference in the above 7-written resolution form.

3. Conclusion

Thus, the management and disposition plan of this case only contains defects that constitute grounds for revocation, and thus, the plaintiffs' primary claims seeking confirmation of invalidity are dismissed as it is without merit, and the plaintiffs' preliminary claims seeking revocation are reasonable, and it is decided to accept them and it is so decided as per Disposition.

Judges OOOO

Judges ○○○

Judges OOO

Relevant statutes

▣ 구 도시 및 주거환경정비법 ( 2007 . 12 . 21 . 법률 제8785호로 개정되기 전의 것 )

Article 24 (Convening of General Meetings and Matters for Resolution)

(3) The following matters shall undergo a resolution at a general meeting:

10. Formulation and alteration of management and disposal plans under Article 48 (1) (proviso).

(except for minor modifications)

Article 46 (Public Notice of Sale in Lots and Application for Sale in Lots)

(1) A project implementer shall notify the owners of lands, etc. of the outlined charges, the period for application for parcelling-out, and other matters prescribed by Presidential Decree, within 21 days from the date of public announcement of an authorization for project implementation under Article 28 (4) (in cases of a housing reconstruction project, the date of concluding a contract by selecting a contractor under Article 11), and publicly announce in a daily newspaper published in the relevant area the details of the sites or structures subject to parcelling-out, etc. In such cases, the period for application for parcelling-out shall be between 30 days and 60 days from the date of notification of such application for parcelling-out. In such cases, where it is deemed that the project implementer has no difficulty in formulating a management and disposal plan under Article 48 (1),

Article 48 (Authorization, etc. for Management and Disposal Plans)

(1) A project implementer (excluding a residential environment improvement project) shall, when the period for application for parcelling-out under Article 46 expires, formulate a management and disposal plan including the following matters on the basis of the current status of application for parcelling-out under Article 46 before demolishing an existing building under this Act, and obtain approval from the head of a Si/Gun, and the same shall also apply where he/she intends to modify, suspend, or abolish a plan for a branch of a management and disposal area: Provided, That where he/she intends to modify any insignificant matter

3. Estimated amounts of the sites or structures scheduled for parcelling-out by person subject to parcelling-out;

4. Details of the previous land or buildings by person subject to parcelling-out and the date of public announcement of authorization to implement the project;

Price

5. Estimated amounts of the rearrangement project costs, and the sharing size and sharing period for the partnership members following thereto;

(5) When the property under paragraph (1) 3 and 4 is appraised in the housing redevelopment project, the methods falling under each of the following subparagraphs shall be applied:

1. The estimated value of a site or structure scheduled for sale under paragraph (1) 3 shall be calculated, as prescribed by municipal ordinance of a City/Do;

At least two appraisal businesses under the Public Notice of Values and Appraisal of Real Estate Act recommended by the head of a Si/Gun;

shall take into account the appraisal opinion of the person.

2. Prices of previous land or buildings among the matters provided for in paragraph (1) 4, shall be the prices of real estate recommended by the head of a Si/Gun;

The arithmetic mean of the values appraised by not less than two appraisal business operators under the Public Disclosure and Appraisal Act shall be calculated.

▣ 도시 및 주거환경정비법 시행령

Article 47 (Procedures, etc. for Application for Parcelling-out)

(1) A project implementer under Article 46 (1) of the Act shall notify the owners of lands, etc. of the matters falling under each of the following subparagraphs within 21 days from the date of receiving an announcement of project implementation authorization under Article 28 (3) of the Act, and publicly notify in a daily newspaper published in the relevant area. In such cases, the matters of subparagraph 9 shall not be notified, and those of subparagraphs 3 and 6 shall not

1. Details of authorization for project implementation;

3. An application for parcelling-out;

5. Details of the sites or structures subject to parcelling-out;

6. Outline of charges;

Article 53 (Matters to be Notified)

The project implementer shall, upon receipt of a public announcement under Article 49 (3) and (5) of the Act, notify the applicants for parcelling-out under paragraph (4) of the same Article of the following matters, and at the time of public announcement of the modification of a management and disposal plan, notify the details of the modification:

5. Details and prices of the existing land or buildings by person subject to parcelling-out, and the details of the sites or structures scheduled for parcelling-out; and

Estimated value

E.I. Articles of Incorporation

Article 22 (Method of Resolution at General Meeting)

(1) A general meeting shall be held with attendance of a majority of partners, and pass resolutions with the consent of a majority of the members present.

Article 54 (Perusal, etc. of Management and Disposal Plans)

(1) A cooperative shall make a copy of the relevant documents available for public inspection for at least 30 days before obtaining authorization for a management and disposal plan and notify each member of the following matters:

1. Outline of the management and disposal plan;

2. Details of objects subject to sale, such as houses and housing site shares and area of shares;

3. Other matters concerning the rights, obligations, objection, etc. of members.

Article 55 (Notification, etc. of Management and Disposal Plans)

(1) Upon receipt of the public notification of the approval plan for the management and disposal plan, a cooperative shall notify each member applying for parcelling-out of the following:

5. Details and prices of the existing land or structures and the details of the land or structures scheduled for parcelling-out by person subject to parcelling-out;

and estimated value, end, and end.