2016Da35765 Unlawful gains

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

7. G.

8. H;

9. I

10. J

11, K

person

1. A stock company that constructs mobilization machinery;

2. L-building housing association;

Seoul High Court Decision 2010Na3119 Decided June 30, 2016

December 15, 2016

The part of the judgment below against Defendant Mobilization Construction Co., Ltd. shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

All appeals by the plaintiffs against the defendant L-building Housing Association are dismissed.

The grounds of appeal are examined.

1. As to the judgment of the court of first instance which partly accepted the plaintiffs' claim against the defendant L-building housing association (hereinafter referred to as "the defendant housing association") against the plaintiffs' appeal against the defendant L-building housing association, the plaintiff A and D appealed against the part against which the costs of lawsuit were lost. The court below revoked the part against which the judgment of the court of first instance was ruled by citing the appeal and accepted the plaintiff A and D's claim against that part. Accordingly, the appeal by the plaintiff A and D is without a benefit of appeal, and the remaining appeals by the plaintiff A and D are unlawful since the court of first instance did not render a judgment.

2. As to the grounds of appeal as to the primary claim against Defendant Mobilization Construction Co., Ltd. by the plaintiffs

A. Matters concerning the apportionment of expenses for reconstruction under Article 47 of the Act on the Ownership and Management of Aggregate Buildings are the criteria for the sectional owners to choose whether to participate in reconstruction, or whether to sell the sectional ownership, etc. in accordance with the market price and not to participate in reconstruction. Considering that the contents of the resolution for reconstruction are the most important and essential parts of the contents of the resolution for reconstruction, a resolution for reconstruction that does not specify the apportionment or criteria for calculation to the extent that it does not lead to an agreement on the apportionment of expenses again at the stage of the implementation of reconstruction shall be null and void unless there are special circumstances: Provided, That even if the resolution for reconstruction does not specify matters concerning the apportionment of expenses for reconstruction, if the general meeting of the members at the stage of the implementation of reconstruction made a resolution on matters concerning the apportionment of expenses by the majority of not less than four-fifths of the members, and the contents of the resolution are determined to maintain equity among the members (see Supreme Court Decision 2004Da7408, Jul. 13, 2006

B. The lower court rejected the Plaintiffs’ primary claim on the premise that the rebuilding resolution adopted at the time of establishment of the Defendant Union was invalid as it did not provide for a resignation on the apportionment of expenses, and that both a resolution on the apportionment of expenses and a resolution on the increase of contributions were null and void as it did not obtain consent from at least 4/5 of the members. Accordingly, the lower court determined that both the rebuilding construction contract and the instant apartment supply contract concluded based on the invalidation resolution was null and void, and that there was a resolution on the effective apportionment of expenses accordingly. However, the lower court’s aforementioned determination is unacceptable for the following reasons.

(1) According to the reasoning of the lower judgment and the evidence duly admitted by the lower court, the following circumstances are revealed.

① Around June 12, 2002, the Defendant Union specifically set the criteria and amount of contributions to be borne by its members only through the process of concluding the first reconstruction construction contract with the Defendant Mobilization Construction Co., Ltd. (hereinafter “Defendant Company”). At the time, the resolution of the general meeting of its members that decided such matters was not obtained the consent of at least 4/5 of its members. ② After that, on September 16, 2006 and February 2, 2008, the Defendant Union made a resolution that additionally bears business expenses or increases the portion of the contributions of its members on two occasions. Such a resolution was also without the consent of at least 4/5 of its members, and a large number of its members asserted that the additional contributions were null and void and have conflict with the Defendant Union.

③ The Defendant Mutual Association, jointly with the Defendant Company, completed the new construction of the instant apartment around October 2008, and thereafter, the Plaintiffs, members of the Mutual Association, paid the supply price determined based on the increased contributions, etc., and completed the registration of initial ownership relating to the apartment.

(D) On March 2009, the Plaintiffs filed the instant lawsuit seeking the return, asserting that the portion exceeding the contributions calculated by applying the differential and 40-level additional application amount to the contributions determined in concluding the initial reconstruction construction contract from the supply price paid by them is null and void due to the lack of legitimate general assembly resolution.

⑤ However, the plaintiffs consistently held in the first instance court of this case for the purpose of the same and several lot drawing. At the special general meeting of the defendant association held around December 30, 2007, the plaintiffs confirmed that only specific contributions determined at the time of concluding the first reconstruction contract with the defendant company are valid, while all the members of the defendant association were present, and decided with the consent of all the members who selected the 40-year apartment complex that had not previously been present at different floors, and there was no dispute or rebuttal on this issue.

④ Examining the minutes of the representative meeting of the Defendant Union on January 30, 2008, the discussions on the contribution at the extraordinary general meeting around December 30, 2007 can be known to the actual progress of the discussions on the contribution at the extraordinary general meeting. On the other hand, there seems to have been no specific standard and amount for the differential or 40 square surcharges prior to the said extraordinary general meeting.

7) In fact, the members of the Defendant Union or the Defendants seem to have disputed only the invalidity of additional contributions in the course of rebuilding process of this case, disputes related thereto, or litigation. 18 other members of the Defendant Union filed a lawsuit against the Defendants for requesting the delivery of apartment buildings. In the same way as the Plaintiffs of this case, the Plaintiffs asserted that the contributions determined at the time of concluding the initial reconstruction construction contract are the valid parcelling-out price, and that only the amount applying additional payments for 40 square-type parcelling-type parcelling-out was the valid parcelling-out price, and that the said assertion was accepted and the judgment of winning the lawsuit ordering

(2) Examining the above facts in light of the legal principles as seen earlier, even if the resolution of the general meeting of the union members or the resolution of increase after the first general meeting of the union members, which specifically determined the apportionment of rebuilding expenses, was null and void because all necessary quorums were not met, there is considerable room to deem that the resolution was made on matters concerning the effective apportionment of expenses at the stage of reconstruction by fully consenting to the application of differential or 40 square surcharges on the premise that only the standard and amount of the first contribution determined by all the union members present at the special meeting at around December 30, 207, is valid.

D. Nevertheless, the lower court dismissed the Plaintiffs’ primary claim premised on the premise that there was a resolution as to effective apportionment of expenses by deeming that the rebuilding construction contract or the apartment supply contract is null and void in its entirety due to the lack of a valid resolution or a resolution on the apportionment of expenses for reconstruction solely based on its stated reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the method of determining the apportionment of expenses for reconstruction at the stage of rebuilding and the implementation of rebuilding, and failing

3. Conclusion

Therefore, without examining the Plaintiffs’ grounds of appeal against the Defendant Company and the grounds of appeal by the Defendant Company regarding the conjunctive claim partially cited by the lower court, the part of the lower judgment regarding the Defendant Company is reversed, and this part of 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 Park Sang-ok

Justices Lee Sang-hoon

Justices Kim Chang-tae, Counsel for the defendant

Justices Cho Jong-hee