[1] Whether the application case seeking suspension of the execution of an administrative disposition should include the requirements to suspend the execution that the applicant’s request for the principal of the case must be legitimate even by the suspension of execution itself (affirmative)

[2] Whether there is a legal interest in seeking revocation or nullification of a disposition of organizing an association establishment promotion committee, where a disposition of approving the establishment of the association promotion committee is pending during the lawsuit (negative)

[1] Article 23 (2) of the Administrative Litigation Act / [2] Articles 13 (1) and (2), 14 (1), and 15 (4) and (5) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444 of Feb. 6, 2009); Article 12 of the Administrative Litigation Act

[1] Supreme Court Order 94Du36 dated February 28, 1995 (Gong1995Sang, 1491) Supreme Court Order 2010Du137 dated November 26, 2010 (Gong2011Sang, 56)

Plaintiff

The head of Eunpyeong-gu Seoul Metropolitan Government

Seoul High Court Decision 201Na1448 decided May 1, 201

The petitioner’s motion of this case shall be dismissed.

The respondent's disposition on April 27, 2005 to approve the establishment of an association establishment promotion committee for the Housing Redevelopment Improvement Project Promotion Committee for the Housing Redevelopment Improvement Project for the Respondent and the disposition on April 24, 2007 to approve the establishment of an association establishment promotion committee for the Housing Redevelopment Improvement Project for the Respondent shall suspend its effect until this court's judgment becomes final and conclusive between the applicant and the respondent.

Judgment ex officio is made.

In a case of applying for the suspension of the validity of an administrative disposition or the suspension of execution, whether the administrative disposition itself is legitimate or not, in principle, is not subject to determination, and only the existence of the requirements under Article 23(2) of the Administrative Litigation Act concerning the validity of the administrative disposition or the suspension of execution shall be subject to determination: Provided, That the suspension of execution is recognized as an exception to the principle of the suspension of execution, and it is a means of protecting rights premised on the possibility of winning the plaintiff in this case, it is reasonable to include the requirements for the suspension of execution that the applicant's request for the principal claim should be legitimate based on the suspension of execution itself (see Supreme Court Order 94Du36, Feb. 28, 1995; Supreme Court Order 2010Du137, Nov. 26, 2010).

According to Articles 13(1) and (2), 14(1), and 15(4) and (5) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 944 of Feb. 6, 2009; hereinafter “former Act”), where a person, other than the head of a Si/Gun or the Housing Corporation, intends to implement an improvement project, an association consisting of owners of land, etc. shall be established; where such association is intended to be established, five or more members including the chairperson, etc. (hereinafter “promotion committee”) shall be organized with the consent of a majority of the owners of land, etc. and obtain approval from the head of a Si/Gun in accordance with the methods and procedures prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs; a promotion committee shall perform the duties necessary to establish an association; when the association is established, it shall report the affairs performed by the promotion committee to the general meeting of the association; and transfer accounting books and related documents stating the expenses to the association within 30 days from the authorization date of the association establishment.

In light of the contents, form, system, etc. of the relevant laws and regulations, the organization approval disposition of the promotion committee is an interim disposition that supplements the composition action of the promotion committee, which is the main body for the establishment of the promotion committee, and gives its effect to achieve the ultimate objective of the establishment, but its legal requirements or effect is an independent disposition that is different from that of the establishment approval disposition. Thus, the revocation of the establishment approval disposition of the promotion committee or the confirmation of invalidity thereof cannot prevent the progress of the rearrangement project by the association already obtained the establishment approval. Therefore, where the establishment approval disposition has been made during the lawsuit pending in the lawsuit against the establishment approval disposition of the promotion committee, the organization approval disposition of the promotion committee shall be prevented by directly disputing the establishment approval disposition on the ground that there is an error of law in the establishment approval disposition of the promotion committee and thus, there is no legal interest in seeking nullification

According to the records, on April 27, 2005, the respondent issued an approval (hereinafter “approval disposition of the promotion committee of this case”) of the promotion committee for the establishment of large scale 1 housing redevelopment and rearrangement project cooperatives (hereinafter “the promotion committee of this case”) under Article 13(2) of the former Urban Improvement Act, and on April 24, 2007, the chairperson and the auditor changed the promotion committee (hereinafter “approval disposition of this case”). The applicant’s main claim for confirmation of the approval disposition of the promotion committee of this case and the approval for change of the promotion committee of this case was filed on October 4, 2010, which were pending in the appellate court, and the redevelopment and rearrangement project association establishment approval disposition of large scale 1 housing redevelopment and rearrangement project association (hereinafter “prior redevelopment and rearrangement project association establishment approval disposition”) was revoked on October 14, 201, but the Seoul Administrative Court Decision 2019 after the above judgment of the appellate court became final and conclusive on August 19, 2019.

In light of the above legal principles, as long as the prior approval disposition was cancelled and finalized by litigation, but the subsequent approval disposition was re-established, the applicant must dispute the approval disposition of the establishment of the association on the ground that there was an error of law in the approval disposition of the promotion committee of this case and the approval of the modification, and that the act of applying for the approval of the establishment of the association is null and void. Furthermore, there is no legal interest to seek nullification of the approval disposition of the promotion committee of this case and the approval of the modification, and there is no interest to seek

Therefore, the petitioner’s motion of this case is unlawful and thus is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)