[1] The method of calculating the number of consenters under Article 16 (3) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, where one person owns a lot of land or a large number of buildings and appurtenant land of a lot

[2] The criteria for examining the content and authenticity of consent when examining the consent of owners of land, etc. who are the requirements for authorization for establishment of a reconstruction association

[3] Whether a person who owns land or a building at the establishment of a housing reconstruction project can become a partner under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (negative), and whether the written consent received from the owner of land or building under Article 26(1) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents applies to legal matters

[1] In light of Article 16(3) 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 “former Act”)’s personal aspects as well as property aspects as to the requirements for consent to the establishment of a reconstruction association by separately demanding the consent of sectional owners or landowners above a certain ratio based on the total area of land in addition to the consent rate of sectional owners, “land or building owners,” and Article 16(3) of the former Act provides not only the “ownership” of land or structure as the requirement for the establishment of a housing reconstruction project, but also the “owners” of land or structure as the “owners” of the housing reconstruction project, it is reasonable to determine the number of consenters as to the establishment of a housing reconstruction project regardless of the number of landowners owned a large number of land or structure, or the number of building owners (amended by Presidential Decree No. 1817, Jul. 1, 2017). 208.

[2] The purport of requiring the written consent of the owner of a plot of land, etc. to establish a reconstruction association under 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) and requiring the administrative agency to submit such written consent at the time of applying for authorization to establish a reconstruction association is to prevent disputes between the owners of a plot of land, etc. who may arise regarding the consent by clarifying the consent of the owner of a plot of land, etc., and further prevent the administrative agency from taking unnecessary administrative power to confirm whether the consent requirements are satisfied only with the consent submitted at the time of applying for authorization to establish a reconstruction association. Accordingly, the administrative agency in receipt of the application for authorization to establish a reconstruction association is not obliged to arbitrarily process the consent with the consent of the owner of a plot of land, etc., as to the contents of the consent, based on whether the legal matters of each subparagraph of Article 26 (1) 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. 2171, Dec. 2008).

[3] In full view of Article 2 subparag. 9 and Article 19(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 “former Act”), Article 26(1) 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. 21171 of Dec. 17, 2008; hereinafter “former Enforcement Decree of the Act”), it is reasonable to view that even if a land or building owner includes a person who shall obtain consent at the establishment of a housing reconstruction project pursuant to Article 16(3) of the former Act, it cannot be a partner under the former Act even if the person is included in a housing reconstruction project, and Article 26(1) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785 of Dec. 21, 2007; hereinafter “former Act”).

[1] Article 16 (2) and (3), and Article 17 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 8785 of Dec. 21, 2007), Article 28 (1) 1 (c) and 2 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. 21171 of Dec. 17, 2008) / [2] Article 16 (2) and (3) 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), Article 28 (1) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents / [3] Article 28 (1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 21171 of Dec. 17, 2008)

[2] Supreme Court Decision 2009Du4845 Decided January 28, 2010 (Gong2010Sang, 434) / [3] Supreme Court Decision 2010Du25107 Decided October 25, 2012 (Gong2012Ha, 1931)

Attached List of Plaintiffs (Law Firm Sejong, Attorneys Kim Jae-re, Counsel for the plaintiff-appellant)

Head of the Gu of Daegu Metropolitan City

Jungdong District Housing Reconstruction and Improvement Project Association (Attorney Kim Jong-sub, Counsel for defendant-appellant)

Daegu High Court Decision 2010Nu536 decided February 11, 2011

The judgment below is reversed, and the case is remanded to the Daegu High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 16(2) and (3) 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 “former Act”) provides that when the committee for promotion of housing reconstruction projects intends to establish an association, it shall obtain the consent of at least 2/3 of both sectional owners and voting rights for each building of collective housing in a housing complex, and the consent of at least 4/5 of all sectional owners and voting rights within a housing complex, respectively. If an area which is not a housing complex is included in a rearrangement zone, the former Act requires the consent of at least 4/5 of the owners of land or buildings within an area which is not a housing complex, and landowners of at least 2/3 of land area. The former Act provides that the consent of at least a certain ratio of “voting rights” as well as each building owner, in cases of collective housing within a housing complex for the establishment of a housing reconstruction association, and the consent of at least a certain ratio of land size as well as each building owner.

Meanwhile, Article 28(1)2 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. 21171, Dec. 17, 2008; hereinafter “former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”) stipulates that “where ownership or sectional ownership belongs to several co-ownerships, one representative of such several co-ownership shall be calculated as the owner of land, etc.,” and where one person owns several sectional ownership rights of multi-family housing in a housing complex (related to Article 16(2) of the former Act), or one person owns several sectional ownership rights of multi-family housing in a housing complex (related to Article 16(2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (related to Article 16(3) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents).

Unless otherwise expressly provided by the regulations, “voting rights” of each sectional owner of collective housing within a housing complex is based on the ratio of the area of the whole part owned by each sectional owner (including the area of the common part allocated according to the ratio of area of the whole part, if there is a part for common use) [Articles 12 and 37(1) of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 10204, Mar. 31, 2010; hereinafter the same shall apply]. Ultimately, in the requirement for consent to establish a reconstruction association, the “multi-family housing owner of a housing complex” in a housing complex is deemed to correspond to “land or structure owner” in an area other than a housing complex; “voting rights of collective housing within a housing complex” in an area other than a housing complex; in the event that the former Urban Improvement Act separately requires the consent of the owners of land or building in excess of a certain ratio of the total area of land, it is reasonable to consider that the land or building owner of a housing reconstruction project is not the land owner’s or housing reconstruction project.

However, contrary to the aforementioned legal principles, the lower court determined that the Defendant’s application for authorization for the establishment of the Intervenor’s Intervenor’s Intervenor’s Intervenor’s association (hereinafter “ Intervenor’s association”) on the basis of the foregoing legal doctrine was lawful when examining the “agreement of at least 4/5 of the owners of land or buildings” among the requirements for consent under Article 16(3) of the former Act, and calculated the number of “the owners of several parcels of land or buildings” and “persons consenting to the establishment of the association” and “persons consenting to the establishment of the association” as the number of parcels of land or buildings owned by them, and based on the foregoing, recognized that the Defendant’s Intervenor’s Intervenor’s Intervenor’s Intervenor’s association (hereinafter “ Intervenor

Therefore, the court below erred by misapprehending the legal principles on the method of calculating the number of consenters at the establishment of a housing reconstruction project, and thereby failing to appropriately calculate the number of consenters with respect to the owners of multiple parcels of land or several buildings and the owners of another parcel of land together with the building and its attached land, and thereby failing to exhaust all necessary deliberations as to whether the requirements for “the consent of at least 4/5 of the owners of land or buildings” under Article 16(3) of the former Act are satisfied. The ground of appeal assigning this error is with merit.

2. Regarding ground of appeal No. 2

A. Part of the written consent of Nonparty 1

The purport of requiring the written consent of the owners of land, etc. to establish a reconstruction association under the former Act and requiring the administrative agency to submit the written consent at the time of applying for authorization to establish a reconstruction association under the same Act is to prevent disputes between the owners of land, etc., which may arise regarding the consent by clarifying the consent, and further prevent the administrative agency from being able to confirm whether the consent requirements are met only by the consent submitted at the time of applying for authorization to establish a reconstruction association. Therefore, when examining whether the owners of land, etc., who are the requirements for authorization to establish a reconstruction association, an administrative agency in receipt of an application for authorization to establish a reconstruction association, has to examine the written consent based on whether all the legal matters of each subparagraph of Article 26 (1) of the former Enforcement Decree of the Act are included in the written consent, and ② With respect to the authenticity of consent, each written consent shall be reviewed on the basis of whether the seal imprint affixed on the written consent and the certificate of personal seal impression are identical. In addition, any consent that does not meet the above criteria shall be null and void, and it shall not be treated arbitrarily (see Supreme Court Decision 2005Du4848.

However, the lower court determined that the written consent submitted by the Intervenor Association to the Defendant by Nonparty 1, the owner of the land, etc., was valid even though the specific contents are entirely omitted, on the ground that the written consent submitted by the Intervenor Association’s establishment promotion committee had to state each of the “a summary of the design of a building to be constructed” under Article 26(1)1 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Article 26(1)2 of the former Enforcement Decree, and the detailed contents are entirely omitted.

Therefore, the judgment of the court below is erroneous by misapprehending the legal principles on consent form or consent form of the owner of land, etc., thereby adversely affecting the validity of consent form by Nonparty 1. The ground of appeal assigning this error is with merit.

B. Nonparty 2 and 14 others’ written consent

When the committee of promoters of housing reconstruction projects intends to establish an association, if an area which is not a housing complex is included in a rearrangement zone, at least 4/5 of the owners of land or structures located in the area which is not a housing complex and at least 2/3 of the land size shall obtain the consent of landowners. In addition, according to Article 26(1) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas based on delegation by Article 16(5) of the former Act, the outline of the structures to be built from the “owners of land, etc.” shall be prescribed as follows: ① the outline of the structures to be built from the “owners of land, etc.”; ② the outline of the expenses to be incurred in the removal and new construction of the structures; ④ the matters concerning the ownership after the completion of the association; ⑤ the matters concerning the ownership after the completion of the association; ② the “owners of land, etc. and appurtenant land” for the housing reconstruction project; ② the owners of land and appurtenant land, etc., other than those prescribed by the former Act, are explicitly prescribed as the “owners of the housing reconstruction project or the housing reconstruction project.”

Comprehensively taking account of such relevant provisions, it is reasonable to view that even if a person who owns land or a building is included in a person who is required to obtain consent at the establishment of an association for a housing reconstruction project pursuant to Article 16(3) of the former Act, he/she cannot become a partner under the former Urban Improvement Act (see Supreme Court Decision 2010Du25107, Oct. 25, 2012). In addition, Article 26(1) of the former Enforcement Decree of the Urban Improvement Act provides the method of consenting to “owner of land, etc. who becomes a partner,” and Article 26(1) of the former Enforcement Decree of the same Act provides for the method of consenting to “the owner of land, etc., who is eligible to participate in a rearrangement project and share the cost and share the cost of the project. Accordingly, in light of such circumstances, statutory matters related to consent from “owner of land, etc.,” as stipulated under Article 26(1) of the former Enforcement Decree of the Urban Improvement Act, are not applicable to consent from a person who owns land or is not eligible to be a partner.

The court below determined that a purchase agreement cannot be effective as a written agreement, even if the purchase agreement submitted to the defendant by Nonparty 2 and 14, who do not fall under the owner of land or a building stipulated in Article 2 subparagraph 9 (b) of the former Act, because an association establishment promotion committee of the participating association owns only one of the land or a building within the rearrangement zone in this case, is stated as follows: "A summary of the building to be constructed" among the statutory matters stipulated in Article 26 (1) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as "the person in question") and "A consent to establish an association under Article 16 (2) and (3) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as "A person in question") as the landowner in the project execution district of the participating zone in Jungdong-dong Housing Reconstruction Project, and all of such matters are not stated therein.

The judgment of the court below is consistent with the above legal principles, and there is no error in the misapprehension of legal principles as to the qualifications of union members and the method of consent at the establishment of a housing reconstruction project.

3. Conclusion

Therefore, the entire judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: omitted

Justices Shin Young-chul (Presiding Justice)