Plaintiff (Bae, Kim & Lee LLC, Attorneys Lee Jae-in et al., Counsel for the plaintiff-appellant)

The head of Gangseo-gu Seoul Metropolitan Government (Law Firm Han & Han, Attorneys Kim Jong-hoon et al., Counsel for defendant-appellant

tension Village Reconstruction and Improvement Project Association (Attorney Jeong-tae et al., Counsel for the plaintiff-appellant)

Seoul Administrative Court Decision 2009Guhap12150 Decided November 5, 2009

September 9, 2010

1. The defendant's appeal is dismissed.

2. Of the appeal costs, the part arising between the Plaintiff and the Defendant is assessed against the Defendant, and the part arising from the intervention is assessed against the Intervenor joining the Defendant.

1. Purport of claim

On August 1, 2007, the defendant confirmed that the disposition to establish an association against the Intervenor joining the Intervenor (hereinafter referred to as the “ Intervenor Union”) is invalid.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Details of the disposition;

The following facts are not disputed between the parties, or may be recognized by Gap evidence 2 through 6, Eul evidence 5-1 through 32, Eul evidence 6-1, 2, Eul evidence 1-1, 2, Eul evidence 1-2, 7-3, 7-2, and 4 based on the whole purport of arguments and arguments:

A. The Mayor of Gangseo-gu Seoul Metropolitan Government on October 23, 2005 designated and publicly announced the total area of 31,924.10 square meters and 218 square meters and 31,924.10 square meters and 218 square meters and 218 square meters, pursuant to Article 4(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, Dec. 21, 2007; hereinafter “former Act”).

B. (1) Around July 2007, approved on November 3, 2005, the Promotion Committee for the Establishment of the Housing Reconstruction and Improvement Project Association established the said Housing Reconstruction and Improvement Zone (hereinafter “instant project zone”) and applied for authorization to establish the association to the Defendant with the consent of 203 of the owners of the land and buildings located within the project zone (242), the landowner (41), the building owner (44), and 203 of the building owners (197 landowners, 6 landowners).

(2) On August 1, 2007, the Defendant: (a) deemed that the instant project zone is not a housing complex, and met the requirements for the consent of at least 4/5 of the owners of the land or buildings and at least 2/3 of the size of the land under Article 16(3) of the former Urban Improvement Act; (b) granted authorization for the establishment of an intervenor association pursuant to Article 16 of the former Urban Improvement Act (hereinafter “instant authorization disposition”); and (c) granted authorization for the implementation of the instant rearrangement project on October 26, 2007.

(A) A landowner shall have a total of 283 persons who consent, 203 persons among them, and 197 persons among them shall have a total of 246 persons, and 197 persons among them have agreed. The landowner's consent rate is 71.73% (203± 283± 100 x 100), but the building owner's consent rate is below 80%, but the building owner's consent rate exceeds 80.08% (197±246 x 100) and 80%, so 4/5 or more of the building owner's land or building.

(B) The area of the land in the instant project zone is 31,924.10 square meters in total, and 30,754.30 square meters in total, excluding state-owned and public-owned and public-owned land that do not fall under the area subject to consent, and 20,845.85 square meters in total, shall be 67.78% (20,845.85 ± 30,754.30 x 100) of the area subject to consent with the consent of the landowner. Accordingly, it shall be deemed that the landowner consented to more than 2/3 of the area of the land.

C. Since then, the Intervenor Union requested the Defendant to approve the establishment of the association on the ground that the consent rate of landowners or building owners was changed, and the Defendant issued a disposition to approve the establishment of the association on January 23, 2008 (the change of the head of the association, the change of the association members, the change of the articles of association, etc.) and notified the Defendant of the approval plan for the establishment of the association on January 23, 2008.

(1) The Intervenor Union filed an application for the authorization of the establishment of the Intervenor Union with the consent from 31 landowners and housing owners in the instant project zone, and the Defendant, on December 24, 2007, deemed that the consent rate of the establishment of the Intervenor Association was 91.56% (228± 249± 100), and obtained the authorization of the establishment of the Intervenor Union (hereinafter “the first approval of the establishment”).

(2) The Intervenor Union filed an application for the authorization of the establishment of the Intervenor Union with the consent of the Plaintiff and one housing owner in the instant project zone, and the Defendant, on August 27, 2008, deemed that the consent rate of the establishment of the Intervenor Association was 91.96% (229± 249± 100), and obtained the authorization of the establishment of the Intervenor Union (hereinafter “the second approval of the establishment”).

D. The Plaintiff is the owner of the land located within the instant project zone. On November 23, 2007, the Intervenor Union filed a lawsuit against the Plaintiff on November 23, 2007 against the Seoul Southern District Court No. 2007Gahap23297 and 2007Gahap23341.

2. Determination as to the legitimacy of the instant lawsuit

A. The defendant's assertion

The defendant (1) The disposition of this case is a supplementary act to supplement the act of establishing a reconstruction association to complete its legal effect, and if there is a defect in the act of establishing the association itself which is the basic act, even if there is such authorization, it cannot be said that the establishment of the association, which is the basic act, is valid. Thus, in a case where there is a defect in the establishment of the association which is the basic act, there is no legal interest to seek the confirmation of invalidity of the basic act, separate from civil litigation, and on the ground that there is a defect in the basic act, there is no legal interest to seek the confirmation of invalidity of the approval disposition of this case. (2) After the approval disposition of this case, the intervenor association filed an application for the authorization of modification after obtaining additional consent from the land and building owners within the business area of this case, and the defendant applied for the authorization of modification in order that the consent ratio of the intervenor association after the approval disposition of this case satisfies the criteria as stipulated in the law, and thus, the approval disposition of this case is already modified and terminated by the first and second approval disposition of modification.

B. Determination

(1) The claim of this case and the existence of interest in action on the ground of defects in the basic act

A disposition to establish an association conducted by an administrative agency based on relevant Acts and subordinate statutes, such as the Act on the Improvement of Urban Areas and Dwelling Conditions, does not merely have the nature as a supplementary act for establishing an association by private persons, but also has the nature of a sort of snow-right disposition that grants the status as an administrative entity with authority to implement a housing reconstruction project under the Act on the Improvement of Urban Areas and Dwelling Conditions. As such, as long as viewed so, it is only one of the requirements necessary to issue an administrative disposition, such as a resolution to establish an association, which is a disposition to establish an association (see Supreme Court Decision 2008Da60568, Sept. 24, 2009). Thus, the defendant's assertion on this part is not acceptable.

(2) Existence of a modified disposition and existence of benefit of action

(A) Legal nature of modified authorization of establishment

It seems that the modified approval of establishment under Article 16 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for the purpose of maintaining the identity of the original association establishment disposition is required to revise or cancel part of the already authorized matters, or add new matters on the premise that the original association establishment disposition is valid. In this case, the modified approval disposition is not a new authorization disposition, and it cannot be evaluated as an independent authorization disposition. On the other hand, the original authorized approval disposition is not a loss of independent existence value by absorption of the modified approval disposition, but not a loss of independent existence value by absorption of the original authorized disposition, but a snow right effect of the authorized approval disposition also takes effect by the original authorized disposition. However, the modified contents by the modified approval disposition are included in

However, in a case where the issue of consent rate is raised as to the original disposition of authorization for establishment, and the association seeks to obtain authorization for establishment while additionally collecting written consent, and where an administrative agency has made a disposition of authorization for establishment, even though the original disposition of authorization for establishment fails to meet the consent rate requirement, the original disposition of authorization for establishment is merely a new disposition of authorization that is conducted in accordance with the new authorization requirement, and thus, the original disposition of authorization for establishment is deemed to be replaced by the original disposition of authorization for establishment. On the premise that even if the initial consent of establishment fails to meet the quorum requirement, even if the initial consent requirement of establishment is not met, it can be deemed that there is no legal interest to file a lawsuit any further because it seeks confirmation of past legal relations. However, in a case where the previous disposition of authorization for establishment becomes effective after the initial disposition of authorization for establishment is based on the premise that the previous disposition of authorization for establishment becomes effective before the previous disposition of establishment becomes effective, it is reasonable to view that the previous disposition of authorization for establishment has a legitimate interest at the time of exercise of rights as the other party.

(C) Determination on the instant case

After the instant authorization disposition, the Intervenor’s association submitted an additional consent to establish the association with the consent of the landowners within the instant project zone, and the Defendant, in sequence, submitted the first and second modification permission, thereby establishing a new association. Accordingly, there is room to deem that the Plaintiff cannot dispute the validity of the instant authorization disposition.

Meanwhile, Article 39 of the Urban Improvement Act provides that "a project operator may file a claim for sale," and Article 2 subparagraph 8 of the same Act provides that "a project operator means a person who implements a rearrangement project," and Article 18 (2) of the same Act provides that "a cooperative shall be established by filing a registration at the seat of its main office within 30 days from the date on which the establishment of the cooperative is authorized." Thus, in this case where a housing reconstruction project is implemented by an intervenor association as a housing reconstruction project association, the participant association may file a claim for sale from the time when the establishment of the association is completed. In light of the purport of Article 48 (4) of the Act on the Ownership and Management of Aggregate Buildings (hereinafter "the Aggregate Buildings Act") and the legislative purport of Article 39 of the same Act that provides for the period of exercise of the right to demand sale and Article 48 (4) of the Aggregate Buildings Act shall apply mutatis mutandis to the plaintiff within two months from the time of the completion of the establishment registration of the association (see the above Supreme Court Decision 2008Da5265679, Feb. 265, 20009).

In light of the above legal principles, the Intervenor Union filed a lawsuit against the Plaintiff on November 23, 2007, prior to the first authorization disposition as a result of the instant authorization disposition, on the premise that the instant authorization disposition is valid. As long as the Intervenor Union can exercise the right to demand sale against the Plaintiff according to regardless of the validity of the authorization disposition, the Plaintiff still has a benefit in dispute over the validity of the instant authorization disposition even after the said authorization disposition is taken. Accordingly, the Defendant’s assertion is without merit.

3. Whether the authorization and disposition of this case are legitimate

A. The plaintiff's assertion

The Plaintiff asserted that the instant authorization disposition is null and void, since it did not meet all the requirements for the consent of at least 4/5 of the owners of land or buildings and at least 2/3 of the size of land as stipulated in Article 16(3) of the former Urban Improvement Act by examining whether the Defendant unlawfully satisfies the consent rate as follows in granting the instant authorization disposition, and such defect is serious and clear.

(1) Article 16(3) of the former Act provides that the consent of at least 4/5 of the owners of land or buildings within an area which is not a housing complex shall be obtained. In determining the consent of at least 4/5 of the owners of land or buildings, it is necessary to obtain the consent of at least 4/5 as a whole by combining all the number of the owners of land or buildings. As such, it is unlawful to determine whether the Defendant satisfied the consent ratio on the basis of only the owners of the land or buildings together. According to the Defendant’s calculation method, the number of the owners of land or buildings is not considered in calculating the consent ratio.

(2) In the case of co-ownership, the number of land owners and the number of consenters should be calculated on the basis of their ownership in the case of the co-ownership of several parcels, and in the case of a difference between one and several persons, the number of land owners and consenters should be calculated on the basis of their ownership. In accordance with this principle, the number of land owners or buildings should be increased by 14 persons.

(3) In calculating the consent rate of land area, the Defendant calculated the area subject to consent and the consent area based on the area of land only for the owners of land and buildings, excluding the area of land for only the owners of land, and ② the aggregate of 1,169.8 square meters of state-owned and public land without the express consent of the establishment of the association should be added to the total area of land within the project area, and it is unlawful to treat state-owned and public land as the consent area without any grounds even though it should be excluded from the area of land subject to

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

(1) Business area and consent requirements consisting of areas which are not a housing complex;

Where the project zone of a housing reconstruction project consists of only a housing complex with regard to authorization for the establishment of a housing reconstruction project association, the consent requirement prescribed in Article 16(2) of the former Act is satisfied (at least 2/3 of sectional owners and voting rights of each building within a housing complex, and at least 4/5 of all sectional owners and voting rights within a housing complex). However, in cases where not only a housing complex but also an area which is not a housing complex is located within a housing complex, the consent requirement prescribed in Article 16(3) of the former Act should be additionally satisfied. However, in cases where a housing reconstruction project zone consists of an area which is not a housing complex, the consent requirement prescribed in Article 16(3) of the former Act is not separately prescribed in the Act. However, the aforementioned provision does not provide for the consent requirement regarding authorization for the establishment of a housing reconstruction project association. However, as long as the consent requirement prescribed in Article 16(3) of the former Act is required, it is difficult to interpret an area that is not a housing complex but a local housing complex.

In this case, since the housing complex is not entirely included in the housing complex and only a single house is constructed in the business area of this case, the intervenor association must meet the requirement of Article 16(3) of the former Act that "at least 4/5 of the owners of land or buildings and at least 2/3 of the size of land shall consent to the establishment of the intervenor association."

(2) The meaning of “4/5 or more consent of the owner of the land or building”

Article 2 subparag. 9, Article 16(1) and (3), and Article 39 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Article 2 subparag. 9, Article 16(1) and (3), and Article 39 of the former Act). A person who owns land or a building can not become a partner for a housing reconstruction project (Article 19(1) and Article 2 subparag. 9 of the same Act). Since a land or a building under his/her ownership is subject to a claim for sale (Article 39 of the same Act). In light of the fact that there is a significant interest in establishing a housing reconstruction project association, and the meaning of the provision itself, the meaning of “4/5 of the owner of land or a building” in the above provision requires the consent of 4/5, including not only the owner of the land and a building but also the owner of the land or a building (Article 16(3) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents).

(3) Whether the land or building owner’s consent requirements are satisfied at the time of the instant authorization and disposition

In accordance with the above calculation criteria, we examine whether the requirements for consent of the owner of the land or building at the time of the approval disposition of this case are satisfied.

(A) Party’s assertion and determination as to the calculation of the actual consent rate

1) Summary of the assertion

The plaintiff asserts that the type of ownership should be different in calculating the owner of the land or building, if one or more real estate at the time of the authorization and disposition of this case is owned independently with another person, as described in each corresponding column of the table ‘the table â,' and that the type of ownership should be separately treated.

(2) Non-party 2, non-party 2, non-party 2, non-party 2, non-party 2, non-party 2, non-party 1, non-party 2, non-party 2, non-party 2, non-party 2, non-party 3, non-party 1, non-party 2, non-party 2, non-party 2, non-party 2, non-party 1, non-party 4, non-party 2, non-party 1, non-party 4, non-party 2, non-party 2, non-party 2, non-party 7, non-party 2, non-party 2, non-party 2, non-party 1, non-party 4, non-party 2, non-party 1, non-party 2, non-party 7, non-party 1, non-party 4, non-party 1, non-party 1, non-party 31,

As to this, the Defendant asserts that: (a) the part of the building incorporated into the rearrangement zone is less than 12 square meters among the above site; (b) the building is incorporated into the rearrangement zone; and (c) the building is incorporated into the rearrangement zone with respect to the building with a size of 456 square meters and above ground, only 9 square meters out of the above site was incorporated into the rearrangement zone; and (d) the representative pastor of the Korea Diplomatic Association, the Korea Fire Agency, the Fire Agency, the Korea Fire Agency, and the Korea Fire Agency (hereinafter referred to as the “Fire Agency”) (hereinafter referred to as the “Fire Agency”) who was the owner of the above site and the building was calculated as the non-party 33 at the time of the submission of the written consent; (c) the situation considered as the consent for the 3 lots of the State-owned land was considered as 12 square meters; and (d) the building owner and the building owner should be excluded from 20 percent of the total number of the building without permission; and (6) the building owner and the building owner should be excluded from 3061 square meters of the instant land.

2) Determination on the Plaintiff’s assertion

(a)the criteria for calculating the number of owners and consenters of land or buildings in a project area that is not a housing complex;

Article 16(1) of the former Act provides for “the consent of at least 4/5 of the owners of land, etc.” as the requirement for authorization to establish a housing redevelopment project. Article 16(2) of the same Act provides that “the consent of at least 2/3 of the sectional owners and voting rights for each building within a housing complex and at least 4/5 of all sectional owners and voting rights within a housing complex” as the requirement for authorization to establish a housing redevelopment project. Article 16(5) of the same Act provides that “the necessary matters concerning the application for establishment, procedure for authorization, etc. of an association under Article 16(1) and (2)

Accordingly, Article 28(1) of the former Enforcement Decree of the Urban Improvement Act (amended by Presidential Decree No. 2022, Aug. 17, 2007; hereinafter “former Enforcement Decree of the Urban Improvement Act”) provides for the method of calculating the number of consenters of the owners of a plot of land, etc. In the case of a housing redevelopment project, Article 28(1)1 provides that “where one piece of land or one building belongs to several co-ownerships, one person representing such several persons shall be calculated as the owner of a plot of land, etc. (a) if superficies is established on the land, the owner of the land and one person representing superficies on the land shall be calculated as the owner of a plot of land, etc. (b) if one person owns a lot of land or a large number of buildings, regardless of the number of parcels of land or buildings, (c) shall be calculated as one person representing such owners of a plot of land, etc.”

As seen earlier, Article 16(3) of the former Act and the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas does not separately stipulate the method of calculating the number of landowners or buildings in housing reconstruction projects covering a project area consisting of only an area that is not a housing complex under Article 16(3) of the former Act. However, Article 16 of the former Act and Article 28 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions (where one owns a lot of land or a large number of buildings, the number of owners of land or buildings shall be calculated as one owner regardless of the number of parcels of land or buildings, and one representative of the number of the owners of land or buildings jointly owned shall be calculated as one owner of land or a building, in order to determine the intention of establishing an association of the owners of land or a building within a project area that is not a housing complex under Article 16(3) of the former Act and that it is difficult to recognize a number of voting rights of the owners of land or a building within a housing complex that is not a housing complex under Article 26(3).

B) Determination on the instant case

As to this case, Article 28 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas provides that one representative of the owners shall be calculated as the owners of land, etc., if the ownership or sectional ownership belongs to several co-owners. (B) Each co-owner of the above co-owned real estate shall be included only in the number of owners of land or buildings, taking into account the situation that each co-owner of the above co-owner of the above co-owned real estate independently owns the real estate in addition to co-owned real estate (No. 3,8,11 of the above table), if one representative of co-owner is selected, it is sufficient to regard the owner of the above co-owned real estate as one representative, and it is sufficient to consider that the owner of the above co-owned real estate or building is the owner of the above co-owned real estate as the owner of the land or building separate from the ownership of the original co-owned real estate or building (no. 7), and if the representative is selected with respect to the above co-owned real estate or the above co-owned real estate, it cannot be calculated as the owner of the above land or building.

3) Determination on the Defendant’s assertion

At the time of the instant authorization disposition, the Defendant’s assertion that the number of landowners or building owners within the instant project zone and the number of consenters have not been calculated properly is considered in turn.

① According to the purport of the argument by the Plaintiff, Nonparty 5, Nonparty 6, Nonparty 7, Nonparty 9, Nonparty 8 and Nonparty 10’s co-owned land in Gangseo-gu Seoul Metropolitan Government Fire-Fighting Zone (Land Number 12 omitted) within the instant project zone, and there was 4 Dong-dong (Co-owned land owned by Nonparty 5, Nonparty 6, Nonparty 7, Nonparty 9, and Nonparty 8 respectively) on the ground, which was incorporated into the instant project zone, but 12 square meters within the said site was not incorporated into the instant project zone, and there was no need to separately consider the fact that the land was incorporated into the instant project zone, and there was no other evidence to acknowledge that there was no need to separately calculate the land within the pertinent project zone as the land owner’s land or building within the pertinent project zone, and there was no need to separately consider the fact that the land was incorporated into the said project zone after the date of the instant approval. In light of Article 26 subparag. 16 of the former Act, the land located within the relevant project zone.

② According to the statements in the statement in No. 7-6 and No. 3-5 of the certificate No. 7-6 and No. 3, as long as the Intervenor’s association could easily confirm the fact that Nonparty 33 consented not as an individual but as a representative pastor of the fire-fighting church, it is necessary to add one consenters in calculating the consent rate, so long as the Plaintiff’s association could easily confirm the consent rate as a representative pastor of the fire-fighting church, it is necessary to add one consenters in calculating the consent rate.

(3) According to the statements in evidence Nos. 4 through 6, it can be acknowledged that the land of the Republic of Korea is owned by the Republic of Korea on three parcels located within the project area of this case (number 32 omitted), the same (number 33 omitted), and the airport Dong (number 34 omitted). In the case of a state under contact, it cannot be deemed that the written consent under the seal imprint attached with the certificate of seal impression under Article 17 (1) of the Act on the Maintenance and Improvement of Urban Areas cannot be required as it is. Therefore, it is sufficient to indicate the consent in a way that it can be objectively confirmed. Article 66 (3) of the Act on the Maintenance and Improvement of Urban Areas provides that the state property within the rearrangement zone of this case shall not be sold or transferred for purposes other than the rearrangement project, and Article 6 (4) of the Act provides that the state property within the rearrangement zone of this case shall not be sold or transferred for the purpose of the improvement project, and that the intervenor or the occupant of the Republic of Korea shall be deemed to have consented to the establishment plan of the State property under Article 430 of the State Property Act.

④ Under Article 16(4) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Public Health, Article 16(4) of the same Act, “Where the address is not indicated at the time of entry as the owner, and the address is different, the person whose location is not verified shall be excluded from the number of the owners of land, etc.” However, according to the purport of each of the statements No. 7-7, No. 4-1, No. 4-2, and No. 5 in the instant project area, the non-party 36 and the non-party 34, who is the owner of the fire-fighting road (number 35 omitted), who is the owner of the land in this case, and the non-party 35, who is the owner of the land (number 36 omitted), the resident registration number of the land in this case and the non-party 4, who is the owner of the airport (number 37 omitted) are not indicated in the resident registration number and the non-party 4, who is the owner of the above land, the non-party 36.

⑤ Comprehensively taking account of the purport of the entire pleadings in the statement of No. 7-8, Eul evidence No. 7-8, Eul evidence No. 5-1 through No. 5-4, Eul evidence No. 6-1 through No. 12, Non-party 37 was awarded a successful bid for the land and the above-ground building within the instant project zone on Oct. 4, 1999. The fact that the non-party 38, the owner of the previous land registered on the public register, was still holding the old building destroyed because the existing unauthorized building destroyed during the construction of the new building was not arranged in the public register, and the non-party 18 acquired the land by inheritance through consultation and division on Aug. 9, 190, and the land without permission was owned by the non-party 39 and the non-party 35, the owner of the land, but the non-party 18, the owner of the land, as the non-party 39 and the non-party 18, the owner of the land, can be found only the building without permission.

6) Comprehensively taking account of the overall purport of the arguments in the statement of No. 7-9 and No. 2, the facts are acknowledged that the above building and its appurtenant land are divided into two different types: (a) an airport Dong (number 39 omitted) and 12 Dong Dong Dong-dong and 6 Dong-dong were located within the original project zone (number 39 omitted); and (b) the intervenor union did not consent to the establishment of the intervenor association; (c) the intervenor union filed a lawsuit against the non-parties; (d) six of them were assigned to the Mereal zone; and (e) one of them was decided to replace the contents of conciliation as a member of the intervenor association; and (e) on February 16, 2009, the fact that the above building and its appurtenant land are located outside the project zone of this case; and (e) there is no evidence to acknowledge that the above building and its appurtenant land were located outside the project zone of this case at the time of the approval and disposition of this case; and (e) there is no reason to consider the remaining land after the disposition of this case.

Therefore, the number of consenters at the time of the instant authorization disposition should be increased by two persons, and the number of the owners of only the building should be decreased by three persons.

(B) Sub-decisions

As a result, the number of landowners and buildings within the instant project zone at the time of the instant authorization disposition is 242 owners of land and buildings, 41 owners of land, 198 owners of land and buildings (one increase), and 205 owners of land and buildings (one increase), and 7 owners of land (one increase). At the time of the instant authorization disposition, at the time of the instant authorization disposition, the consent rate of landowners or building owners was 72.18% (205±284 x 100), and the consent rate was 72.18% (205±284 x 100) under Article 16(3) of the former Urban Improvement Act.

(4) Whether the instant authorization disposition is invalid

(A) As seen earlier, the instant authorization disposition is illegal as it does not meet the consent requirements required under the Act on the Maintenance of Urban Areas and Dwelling Conditions necessary for the establishment of a cooperative, and as long as the consent ratio is considerably lower than the statutory consent ratio under Article 16(3) of the former Act, the defect of the instant authorization disposition is serious and objective, and it is reasonable to deem the instant authorization disposition null and void.

(B) On this issue, the Defendant asserts that the consent rate of the owner of the land or building at the time of the instant authorization is at least 76.11% (207±272 x 100) and that the consent rate of the association establishment should be at least 80% as stipulated in Article 16.3 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions. The above number exceeds 3/4 of the consent rate stipulated in Article 16(3) of the former Act on December 21, 2007, as amended by Act No. 8785, Dec. 21, 2007. In other cases where the project area is composed only of areas which are not housing complexes, the consent rate of the association establishment at least is not stipulated in the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions, and that the consent rate of the association establishment at the time of the establishment of the new project area should be determined separately from the consent rate of the landowners at least because it is not clear that the consent rate of the association or the landowners of the project area should be determined.

(1) As seen earlier, the agreement rate of the owners of land or buildings at the time of the instant authorization and disposition is 72.18%, and the 4/5, which is the requirement for the consent under Article 16(3) of the former Urban Improvement Act, was considerably less than the 76.11%, and the consent rate of the owners of land or buildings calculated appropriately by the Defendant’s assertion does not exceed 80% as stipulated in Article 16(3) of the former Urban Improvement Act, and Article 16(3) of the former Urban Improvement Act, which is amended by Act No. 8785, Dec. 21, 2007, provides that “the consent rate of the owners of land or buildings within a non-housing area,” which is 3/4 of the Act, shall not be separately considered in determining the invalidity of defects that existed at the time of the instant authorization and disposition. However, even if the Act does not stipulate the consent rate of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Areas, which is not an area within a housing complex within the project area.

② The issue of illegality of administrative disposition in the public health department and administrative litigation shall be determined on the basis of the relevant laws and facts at the time of the administrative disposition, and it shall not be affected by the amendment or repeal of laws and regulations or changes in the actual state after the disposition. The cure of defective administrative action shall not be permitted in principle from the point of view of the nature of administrative act or the rule of law. exceptionally, if an administrative act is repeated and permitted for the sake of legal stability of the parties, it shall be recognized in accordance with specific circumstances to the extent that it does not infringe upon the rights and interests of the people (see Supreme Court Decision 2001Du10684, Jul. 9, 2002). Since the intervenor union in this case was punished for partnership activities by exercising rights as an administrative body, such as filing a lawsuit against the plaintiff on the premise that the first change disposition is valid after the authorization disposition in this case, and even if the correction of defects as alleged by the defendant, it shall not be determined that the owner, including the plaintiff, does not incur any damage to the land within the business area.

D. Sub-committee

Therefore, without examining the remaining arguments of the plaintiff, the permission of this case is null and void because the defects are significant and apparent, and the plaintiff has a benefit to seek confirmation as the land owner in the business area of this case.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judge Lee Ji-hun (Presiding Judge)