2014Guhap1691 Revocation of revocation of approval to establish an association

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Law Firm Name (Law Firm Name, Counsel for the plaintiff-appellant)

[Defendant-Appellee] Defendant 1 and 3 others

The Nam-gu Incheon Metropolitan City

Attorney Kim Jong-chul, Counsel for the defendant-appellant

April 9, 2015

May 7, 2015

1. On March 31, 2014, the Defendant revoked the revocation of the authorization for the establishment of the Housing Redevelopment Project Association to the Housing Redevelopment Development and Improvement Project Association of Do governor, Do governor, and Do governor.

2. The costs of lawsuit are assessed against the defendant.

The order is as set forth in the text.

1. Details of the disposition;

A. The Housing Redevelopment Development and Rearrangement Project Association of Do, Seoul and 2 (hereinafter referred to as the "Association of this case") is a project implementer promoting the Housing Redevelopment and Rearrangement Project in the Nam-gu, Incheon, Nam-gu - Dong, Seoul, and the plaintiff is the head of the association of this company.

B. On February 4, 2014, some owners of the instant land, etc. filed an application for dissolution with the Defendant on behalf of the instant association (hereinafter referred to as “application for dissolution”), and the Defendant revoked authorization for establishment of the instant association on the ground that 57 owners of the instant land, etc. consent to dissolution of the association among 108 owners of the land, etc. pursuant to Article 16-2 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as “Urban Improvement Act”) on March 31, 2014 (hereinafter referred to as “instant disposition”).

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 through 7 (including branch numbers, if any), Eul evidence Nos. 2 and 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The consent ratio necessary to revoke authorization to establish an association must be calculated based on the written consent to dissolution submitted until the time of application for dissolution. Four copies of the written consent to dissolution of the instant case shall be excluded from the calculation of the consent ratio.

2) Three copies written prior to February 1, 2012, which were amended by the Urban Improvement Act, among the written consent to the dissolution of the instant case, violates the method of written consent pursuant to the provisions of the Urban Improvement Act prior to the amendment, and thus, should be excluded from the calculation of the consent rate.

(b) Relevant statutes;

As shown in the attached Form.

C. Determination

1) Standard time to determine a quorum for dissolution consent cancellation of the association establishment authorization

According to Article 16-2(1)2, the former part of Article 17(1) and Article 28(4) of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, it is necessary to give consent to the owners of lands, etc. and half of them as the requirements for application for dissolution to revoke authorization to establish an association, and the consent is based on the method of written consent attached to the identification card, and the owners of lands, etc. may withdraw their consent of dissolution only before applying for dissolution of an association.

As above, the purport of the Urban Improvement Act requiring a written consent by filing an application for dissolution of an association and requiring the administrative agency to submit such written consent is to prevent disputes between related persons who may arise in connection with the consent by clarifying the consent of the owners of a plot of land, etc., and further prevent an administrative agency from taking administrative power unnecessary to confirm whether the consent is given, by allowing the administrative agency to examine whether the consent requirements are met only with the written consent submitted.

In addition, even though the time of withdrawal of consent to dissolution was restricted before the application for dissolution, the submission of consent to dissolution would lose balance in the expression of consent to dissolution if possible even after the application for dissolution, and would distort the genuine intent of the owners of lands, etc., at any time during the period between the disposition after the application for dissolution of an association, the owners of lands, etc. may dispose of their own land and buildings at any time, divide, merge, etc. In addition, when calculating the consent rate based on the date of disposition, it would be able to intentionally manipulate the consent rate through changes in ownership even after the application for dissolution, and it is difficult to confirm the ownership relationship again as of the date of disposition.

Considering the foregoing comprehensively, it is reasonable to determine the quorum of the consent to dissolution for cancellation of authorization to establish an association based on the time of applying for dissolution (see Supreme Court Decision 2012Du21437, Apr. 24, 2014).

2) As to the instant case, 4 of the owners of land, etc. (i.e., Kim○, Park ○, Gam ○, and Kim Jong-Un) among the owners of land, etc., who were deemed to have consented to the Defendant’s application for dissolution even if based on the Defendant’s assertion (see the preparatory brief dated April 8, 2015) submitted written consent to dissolution after February 4, 2014, which is the filing date of the application for dissolution, the said 4 owners of land, etc. should be excluded from the calculation of the consent rate.

3) Therefore, if excluding the above 4 persons, the valid consent to dissolution is 53 persons, and the number of owners of land, etc. shall not exceed 54 persons who are half the number of owners of land, etc., so the instant disposition should be revoked as it is unlawful without any further review by the Plaintiff’s remaining arguments.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

Judgment of the presiding judge;

Judge Detailed-type

Judges Hong-gion

Related Acts and subordinate statutes

▣ 도시 및 주거환경정비법

Article 16-2 (Cancellation of Authorization, etc. to Establish Cooperatives)

(1) The head of a Si/Gun shall approve a promotion committee or an association in any of the following cases:

The authorization for establishment of a cooperative (hereafter referred to as "authorization for establishment of a cooperative" in this Article) shall be revoked.

2. Matters prescribed by Provincial Ordinance within the extent of not less than 1/2 to not more than 2/3 of the members who consent to the establishment of the association.

(2) An application for dissolution of an association with consent of more than

In the case

Article 17 (Method, etc. of Consent by Owners of Land, etc.)

(1) Articles 4-3 (1) 4, 7 (1), 8, 13 (2), 14 (4), and 16 (1)

The provisions of paragraphs (3) through (3), Articles 16-2 (1), 26 (3), 28 (7) and 33 (2) shall apply.

consent (Withdrawal of consent or withdrawal of Article 8(4)7, Article 13(3) and Article 26(3)

(2) The owner of a plot of land, etc. shall affix his/her seal to the written consent of the owner of a plot of land.

The written consent shall be signed in writing, and the identity of a resident registration certificate, passport, etc. may be verified, such as a resident registration certificate or passport.

shall be accompanied by a copy of the identification certificate (proviso omitted).

▣ 도시 및 주거환경정비법 시행령

Article 28 (Methods, etc. of Calculating Self-denunciation of Owners of Land, etc.)

(4) The owners of land, etc. shall give consent under Article 12 and the former part of Article 17 (1) of the Act (Articles 8 (4) 7 and 13 of the Act).

Authorization, permission, etc. under paragraphs (3) and Article 26 (3) (including cases where consent is deemed granted pursuant to Article 26 (3))

The consent may be withdrawn or the dissenting opinion may be expressed prior to the filing of the motion (proviso omitted).