New City Housing Redevelopment and Improvement Project Association (Attorney Lee Jae-ju et al., Counsel for the plaintiff-appellant)

Defendant 1 and 10 others (Law Firm Won et al., Counsel for the defendant-appellant)

May 6, 2010

1. The plaintiff's claims against the defendants are all dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendants jointly and severally pay to the plaintiff 3,00,000,000 won and 34,631,000 won per day from July 1, 2009 to the date of delivery of each real estate list to the plaintiff.

1. Basic facts

The following facts are not disputed between the parties, or may be recognized by taking into account the whole purport of the pleadings in each entry in Gap 2 through 9 and Eul 2 (including each number):

A. The Plaintiff Cooperative is a housing redevelopment and rearrangement project association established for the purpose of implementing a housing redevelopment project under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Domination Act”). Defendant 1 is a real estate redevelopment and rearrangement project association established for the purpose of implementing a housing redevelopment project under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Domination Act”), Defendant 2, and Defendant 4’s real estate under the attached Table 1, 2, and 3, 3’s real estate under the same Table 1, 4, 5’s real estate under paragraph (4), 6’s real estate under the same list 4, and 6’s real estate under the same list 6’s real estate under the same list, and Defendant 7’s real estate under the same list 7(the first instance court and the Supreme Court decision of this case’s holding of the real estate), and Defendant 9’s real estate under the same list 8(8), Defendant 10, and 119(c).

B. On March 7, 2003, the committee for the promotion of the construction of redevelopment project partnership (hereinafter “the committee for promotion of this case”) which is the telegraph of the Plaintiff association (hereinafter “the committee for promotion of this case”), published a notice of tender on a daily newspaper on June 6, 2003. By June 12, 2000 of the same month following the sixth day following the public notice of tender, the public notice of tender was received with the following documents attached thereto. The non-party large forest industry corporation (hereinafter “the large forest industry”) was a sole tender, and decided on June 22, 2003 to select the large forest industry as the contractor (hereinafter “the resolution for the selection of the contractor of this case”).

Application Documents

(i) an application for participation in tendering;

2) Participating Enterprise’s proposal (to be submitted after separate seals)

3) One application form for bid participation in accordance with the guidelines for preparation of project participation proposals

4) Part A3 and Part A3 of the design documents submitted

5) Documents evidencing the qualifications for participation in tendering.

6) The draft contract for construction works, the draft design service contract, and the draft contract.

7) Company name sources (including redevelopment and reconstruction project performance);

8) Other matters requested by the Promotion Committee.

C. On October 13, 2004, after the enactment and enforcement of the Do Government Act, the promotion committee of this case obtained the approval of the establishment promotion committee from the head of the Gu in Seoul. On June 17, 2006, the general meeting of the Plaintiff association was held before the inaugural general meeting of the Plaintiff association that will be held on June 17, 2006, and submitted a written consent for the establishment of the association from the owners of the land, etc. in the project area of this case (hereinafter “the first written consent of this case”). The said written consent of the establishment of the association was written as publically on the following matters: “the outline of the design of new construction structure” and “the estimated amount of the cost of removal and construction of the building” (the Plaintiff association asserted that each of the above matters were stated in the first written consent of this case, but it is difficult to believe that each of the items of Gap evidence

D. On June 17, 2006, the Plaintiff Union held an inaugural general meeting of the association and made a resolution for approval on the designation of the district and the articles of association of the Plaintiff Union each attached to the draft of the project implementation plan and the draft of the construction plan plan plan drawing (a lighting, design outline, placement drawing, unit drawing). The Plaintiff Union applied for authorization for the establishment of the association to the head of Seoul Central Government Government, along with the first consent form

E. On January 19, 2007, the head of the Seoul Central District Court deemed that the Plaintiff’s association obtained the consent to establish the association from 427 owners of the land, etc. in the instant project zone from 531 owners, and issued a disposition to authorize the establishment of the Plaintiff association (hereinafter “instant disposition to authorize the establishment of the association”).

F. On August 10, 2007, the Plaintiff Union received a disposition to authorize the implementation of the project (hereinafter “instant project implementation authorization disposition”) from the head of the Gu of Seoul, with the content that the Plaintiff Association newly constructs the 15th, 15 roads above ground, and the total of 895 apartment units and ancillary and welfare facilities within the instant project zone (hereinafter “instant project implementation authorization

G. On October 13, 2007, the Plaintiff Union approved the management and disposal plan that newly constructs 15 apartment units on the 15th floor with total project cost of 245,706,022,739 won, total floor area of 130,178.40 square meters (hereinafter “instant management and disposal plan”) by holding a general meeting of management and disposal on the 15th floor, and under the premise that the large forest industry was selected as the contractor, the Plaintiff Union decided to approve the conclusion of the construction contract between the Plaintiff Union and the large forest industry (including the purpose of ratification of the resolution of the selection of the contractor in this case), and the head of the Seoul Central District Court announced it on June 26, 2008 (hereinafter “instant management and disposal plan”).

H. On October 19, 2007, the Plaintiff Union entered into a contract for construction works (hereinafter “instant contract for construction works”) with the Daelim Industry. Article 13 of the said contract provides for the following:

Article 13 (Relocation of Residents)

(1) The relocation of residents in a project district (including tenants; hereinafter the same shall apply) shall be completed within six months from the first moving expenses rental date under the responsibility of the Plaintiff Union, and the forest industry shall take measures and support for promoting the relocation.

(3) Where the commencement of construction works for the substitute forest industry is delayed due to a failure to observe the period under paragraph (1), the plaintiff union and the members of the plaintiff union shall pay the overdue interest calculated by applying the overdue interest rate under Article 18 to the substitute forest industry as much as the number of delayed days for all business expenses (including the basic relocation expenses) executed by the substitute forest industry.

I. On July 31, 2009, the Daelim Industry requested payment of KRW 3,242,245,000 on the basis of the above construction contract on the ground that the removal was not completed due to the failure of some households among the members of the Plaintiff Union.

2. The assertion and judgment

A. The parties' assertion

(1) According to Article 49(6) of the Do Government Act, when the notice of approval for a management and disposal plan is given, the use and profit-making of the previous land and buildings by the owners or lessees of the land and the members of the Plaintiff Union is prohibited, and Article 10(1)7 of the Plaintiff Union’s articles of association imposes on the members the duty of removal and relocation of each real estate listed in the separate list without delivering it to the Plaintiff Union. However, the Defendants continued to occupy the real estate listed in the separate list without delivering it to the Plaintiff Union. As the Defendants’ delay in the relocation of the Defendants caused enormous financial costs and liquidated damages, the

B. The Defendants: The establishment of the Plaintiff association based on the first written consent of this case is null and void, and the establishment of the Plaintiff association based on the first written consent of this case is also null and void. The instant management and disposal plan of this case established by the Plaintiff association without the authority to implement the project, and the authorization and disposition of this case are null and void. Therefore, the Plaintiff association cannot limit the Defendants’ use of and benefit from the land and buildings based on the management and disposal plan of this case. Therefore, the Defendants did not deliver each real estate listed in the separate written consent of this case to the Plaintiff association, and thus, are not liable to compensate the Plaintiff

In addition, the resolution to select the instant contractor is also null and void in violation of the provisions of the Do Government Act and the Articles of Incorporation of the Plaintiff Union. Accordingly, the instant construction contract concluded between the Daelim Industry and the Plaintiff Union based on the resolution to select the contractor of the instant case is also null and void. Therefore, it is unreasonable to seek damages against the Defendants on the grounds of the delayed liability stipulated in the said construction contract. Moreover, there was no specific loss suffered by

(b) Markets:

(1) Determination on the validity of the establishment authorization of this case

㈎ 관계 법령

Attached Form Do governor-related Acts and subordinate statutes.

㈏ 구 도정법(2007. 12. 21. 법률 제8785호로 개정되기 전의 것)상의 재개발조합 설립에 토지 등 소유자의 서면에 의한 동의를 요구하고 그 동의서를 재개발조합설립인가신청시 행정청에 제출하도록 하는 취지는 서면에 의하여 토지 등 소유자의 동의 여부를 명확하게 함으로써 동의 여부에 관하여 발생할 수 있는 관련자들 사이의 분쟁을 미연에 방지하고 나아가 행정청으로 하여금 재개발조합설립인가신청시에 제출된 동의서에 의하여서만 동의요건의 충족 여부를 심사하도록 함으로써 동의 여부의 확인에 불필요하게 행정력이 소모되는 것을 막기 위한 데 있다. 따라서 재개발조합설립인가신청을 받은 행정청은 재개발조합설립인가의 요건인 토지 등 소유자의 동의 여부를 심사함에 있어서 무엇보다도 동의의 내용에 관하여는 동의서에 구 도정법 시행령(2008. 12. 17. 대통령령 제21171호로 개정되기 전의 것, 이하 같다) 제26조 제1항 각 호 의 법정사항이 모두 포함되어 있는지를 기준으로, 동의의 진정성에 관하여는 그 동의서에 날인된 인영과 인감증명서의 인영이 동일한 것인지를 기준으로 각 심사하여야 한다. 그리고 위 기준 중 어느 하나라도 충족하지 못하는 동의서에 대하여는 이를 무효로 처리하여야 하고, 임의로 이를 유효한 동의로 처리할 수는 없다( 대법원 2010. 1. 28. 선고 2009두4845 판결 참조).

The first written consent of this case submitted by the committee of this case to the head of Jung-gu in Seoul with the approval from the owner of the land, etc., was entirely omitted in the specific contents of 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 Do Government Act and "a summary of the cost of removing and constructing a building" under Article 26 (1) 2 of the former Enforcement Decree of the Do Government Act, and the fact that the head of the Seoul Central Government issued the approval of this case that approved the establishment of the plaintiff association on January 19, 207 is found as follows. Thus, the approval of this case's establishment is unlawful in treating the above defects of the above disposition of this case as invalid in violation of the criteria for examination of the consent of the owner of the land, etc., which is the requirement for the approval of redevelopment association, and in light of the significant meaning of the consent of the owner, such as the land directly interested party, in the process of the establishment of redevelopment association.

㈐ 이에 대하여 원고 조합은 이 사건 조합설립인가처분일 이후에 조합원들로부터 구 도정법 시행령 제26조 제1항 각 호 에서 정하고 있는 사항을 새로이 기재한 동의서를 조합원 5분의 4 이상인 444명으로부터 제출받았으므로 이 사건 조합설립결의의 하자 및 조합설립인가처분의 하자가 치유되었다고 주장한다.

In full view of the purport of the argument in the evidence No. 2, it can be acknowledged that the Plaintiff’s association submitted a written consent (hereinafter “the second written consent”) with at least 444 members, which newly states “a summary of the design of a building being constructed” and “a rough amount of expenses incurred in removing and constructing a building” as stipulated in each subparagraph of Article 26(1) of the former Enforcement Decree of the Do Government Act, from May 2009 to August 26, 2009. However, since the Plaintiff’s association received the second written consent of this case from at least 4/5 of its members, the second written consent of this case was cured of the defect in the establishment agreement of this case and was retroactively valid (see Supreme Court Decisions 200Da10048, Sept. 27, 2002; 2004Da1437, Apr. 37, 2016).

In addition, on August 10, 2007, the Plaintiff Union asserted that the head of the Seoul Central District Office obtained the status of a project implementer under the Do administration Act by receiving an authorization for project implementation from the head of the Gu, and that the procedural defect in the procedure for authorization for project implementation was cured. However, as seen earlier, the defect in the authorization for project implementation of this case, which was invalidated by the head of the Seoul Central District Office after the submission of the second written consent of this case, was around August 26, 2009, after the authorization for project implementation of this case was issued, and as long as the disposition for authorization for project establishment of the Plaintiff Union is null and void, the project implementation plan of this case established by the Plaintiff Union is illegal as it was made by the Plaintiff Association without the authority to prepare the project implementation plan of this case, and the authorization for project implementation of this case that was made by the head of the Seoul Central District Court

The above argument of the Plaintiff Union is without merit.

The administrative agency's disposition of approving the establishment of the redevelopment association is not merely a supplementary action against the establishment of a private person, but also a kind of authority disposition that grants the status of an administrative entity (public corporation) when meeting certain requirements under the law (see Supreme Court Decision 2009Du4845, Jan. 28, 2010). Thus, if the instant disposition of approving the establishment of the Plaintiff association is null and void as above, the Plaintiff association does not have the authority to implement a housing redevelopment project under the Do Government Act, and the Plaintiff association does not have the authority to implement the housing redevelopment project under the Do Government Act (this case's second written consent was submitted, and there is no evidence to acknowledge that the Plaintiff association received a separate disposition of approving the establishment of the Plaintiff association), and the Defendants cannot be deemed to have the duty to

Therefore, the Plaintiff union’s assertion seeking liability for damages against the Defendants on the premise that the Defendants are liable for delivery is without merit.

【Judgment as to whether the delay in the relocation of the Defendants caused damage to the Plaintiff Union

㈎ 설사 피고들이 원고 조합에게 별지 목록 기재 각 부동산을 인도할 의무가 있어 인도의무 지체에 대한 책임을 진다고 하더라도 다음과 같은 이유로 이 사건 시공사 선정결의는 무효이고, 대림산업을 시공자로 선정하는 새로운 유효한 결의가 있었다고 볼 수도 없어서, 이에 근거한 이 사건 공사도급계약 역시 피고들에 대하여는 효력을 주장할 수 없다고 할 것이므로, 이 사건 공사도급계약에서 정한 연체이자를 피고들의 위 인도의무 지체로 인하여 원고 조합이 입은 손해로 볼 수 없다.

1) Whether the selection of a contractor under the instant promotion committee is lawful

As seen earlier, the Promotion Committee of this case, prior to the enactment of the Do Government Act (amended by Act No. 6852 of Dec. 30, 2002 and enforced July 1, 2003), selected as a contractor on June 22, 2003, prior to the enforcement of the Do Government Act (amended by Act No. 6852 of Dec. 30, 2002), has decided to select a joint developer at a general meeting of its members. This violates the provisions that the former Urban Redevelopment Act (amended by Act No. 6852 of Dec. 30, 2002) that had been enforced at the time, to appoint a joint developer at the general meeting of its members

In addition, the enactment of the Do administration Act was enforced on July 1, 2002, and the fact that the Plaintiff Union was subject to the disposition of approving the establishment of the instant association on January 19, 2007 is as seen earlier. Therefore, the Plaintiff Union could not select the substitute forest industry as the contractor in accordance with the requirements under Article 7 (2) of the Addenda to the enactment of the Do administration Act.

Therefore, the resolution to select the instant contractor by the instant promotion committee is null and void.

2) Whether the resolution on the selection of work executor by the Plaintiff Union is valid

As seen earlier, under the premise that the general meeting for the management and disposal of the Plaintiff Union selected the substitute industry as a contractor on October 13, 2007, the Plaintiff Union passed a resolution to approve the conclusion of the construction contract between the Plaintiff Union and the substitute industry (hereinafter “resolution by October 13, 2007”). We examine whether the said resolution by October 13, 2007 is valid as a new resolution for the selection of the contractor.

According to the statement of evidence No. 8, the main text of Article 12(1) of the Plaintiff Union’s articles of association provides that “the selection of a work executor shall be made by means of a general competitive bidding or a competitive competitive bidding, a public announcement shall be made in a daily newspaper at least once, and a proposal for participation shall be submitted and selected at a general meeting shall be selected by the general meeting.” The proviso of the same provision provides that “No Article 12 of the Articles of association shall apply to a work executor selected as an open competitive bidding before the enforcement of the Do Government Act, and a work executor selected by the general meeting shall be deemed as a work executor pursuant to this articles of association by obtaining a resolution of the general meeting.” Thus, since there is no dispute between the parties regarding the selection of a work executor at the time of the above resolution, the validity of the resolution of Oct. 13, 2007 cannot be recognized based on the main sentence of Article 12(1) of the Plaintiff Union’s articles of association, and the question is whether the resolution of Oct. 13, 2007 is valid.

However, the proviso of Article 12(1) of the Articles of Incorporation of the Plaintiff Union is not only in violation of Article 24(3)6 of the Do Government Act, which prescribes the selection of a contractor as the inherent authority of the general meeting of the association members, but also becomes null and void as a provision which infringes on the choice of a contractor assigned to the association members through the main text of the same article of incorporation. Thus, the above provisions of the articles of incorporation cannot be said to be valid.

In addition, even if the proviso of Article 12 (1) of the articles of association of the Plaintiff Union is valid, the instant promotion committee shall be deemed to be a public competitive bidding under the proviso of Article 12 (1) of the articles of association of the Plaintiff Union, which is a legal holiday and submitted a tender document accompanied by several kinds of application documents not later than 18:00 on June 6, 2003, which is six days after the said legal holiday, and the fact that only the large industry was a single competitive bidding according to the public tender notice as seen above, as seen above. However, in light of the size of the project area in the instant case, the design documents and drawings or sculptures among the application documents to be attached to the tender document, the number of apartment units to be constructed, etc., and it is reasonable to view that only the construction company involved in the redevelopment project within the instant project area could have prepared them. Accordingly, the aforementioned bidding by the promotion committee of this case cannot be deemed to be an open competitive bidding under the proviso of Article 12 (1) of the Plaintiff Union's articles of association.

Therefore, the validity of the resolution to select a new contractor cannot be recognized for the above resolution of October 13, 2007.

㈏ 그 밖에 피고들의 위 인도의무 지체로 인하여 원고 조합이 입은 손해를 인정할 만한 증거가 없다.

3. Conclusion

Therefore, all of the plaintiff's claims against the defendants are without merit, and they are dismissed. It is so decided as per Disposition.

[Attachment]

Judges Cho Young-ho (Presiding Judge)