2017Da50440 Surplus distribution

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20. Telecommunication

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[Judgment of the court below]

Attorney Lee Young-soo

Wed Housing Improvement and Redevelopment Cooperatives

Seoul Northern District Court Decision 2017Na1095 Decided October 17, 2017

May 30, 2018

The judgment of the court below is reversed, and the case is remanded to the Seoul Northern District Court Panel Division.

The grounds of appeal are examined.

1. A. citing the reasoning of the judgment of the court of first instance, the lower court partially accepted the claim for the distribution of remaining property of this case on the following grounds. Even if the Defendant Union does not constitute a partnership under the Civil Act, the legal doctrine on the distribution of residual property may be applied when the union is dissolved. Article 69 of the articles of association of the Defendant Union provides that the liquidation of the dissolved foundation shall be in accordance with the relevant provisions of the Civil Act. Thus, Article 724(2) of the Civil Act on the distribution of residual property may be applied

Accordingly, the lower court determined as follows. In accordance with the legal doctrine that a representative liquidator of the Defendant Union may distribute residual property in cases where there is no remaining business to be treated in the event of dissolution and only the distribution of residual property remains (see Supreme Court Decision 2007Da48370, 48387, Nov. 15, 2007) without requiring separate liquidation procedures (see Supreme Court Decision 2007Da48370, 48387, Nov. 15, 2007). A representative liquidator of the Defendant Union acknowledged the obligation to distribute residual property of the Defendant Union. On May 26, 2015, on the ground that the remaining remaining business of the Defendant Union remains in the account under the name of the Defendant Union at the time of the said date on the ground that the remaining business of the Defendant Union is not remaining, and as a result, by applying Article 724(2) of the Civil Act by analogy

B. However, such determination by the lower court is difficult to accept. The reasoning of the lower judgment and the record reveal the following.

1) The Defendant Union is an redevelopment association upon the authorization to establish an association and implement an urban redevelopment project on November 1, 1995 under the abolished former Urban Redevelopment Act. The Defendant Union, upon completion of redevelopment projects, held a "general meeting for dissolution and liquidation of an association" on December 9, 2006, made a resolution of dissolution, and thereafter continues to exist for the purpose of liquidation as a liquidated corporation.

2) The former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (wholly amended by Act No. 14567, Feb. 8, 2017; hereinafter referred to as the “former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”) shall include the matters concerning the liquidation procedures at the time when the rearrangement project, which is prepared by the association, is terminated by the articles of association (Article 20(1)13). The former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (wholly amended by Presidential Decree No. 28628, Feb. 9, 2018) as one of the articles of association (Article 31 subparag. 12). Meanwhile, the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Article 27) applies mutatis mutandis to the association, and the Civil Act provides for the dissolution and liquidation of the association (Articles 77 through 96).

3) The articles of incorporation of the Defendant Cooperatives also provide that the liquidation of the dissolved corporation shall be governed by the relevant provisions of the Civil Act (Article 69), and there is no direct provision that the ownership of residual property shall be attributed to the dissolved corporation. The lower court should have deliberated and determined the propriety and scope of the claim for distribution of residual property pursuant to the aforementioned statutes and the Articles of incorporation of the Defendant Cooperatives. Nevertheless, the lower court ordered the distribution of residual property by applying the legal doctrine on the total balance of deposits as of May 26, 2015 to the association. In so determining, the lower court erred by misapprehending the legal doctrine on the distribution of residual property at the time of dissolution of the Housing Improvement Development Cooperatives, which affected the conclusion of the judgment. The ground of appeal No.

2. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jong-hee

Justices Kim Jae-tae

Justices Kim Jae-in

Justices Min Il-young in charge