209Guhap4747 Confirmation of non-existence of an establishment, etc.

1. Hana (77 years old, female);

2. Prostitution1 (58 years old, South)

3. Kim A2 (Resus 56 Years, South Korea)

4. Kim A3 (Sekin 39, South Korea)

5. Former A4 (At 55 Years, Women)

[Judgment of the court below]

The head of North Korea of Busan Metropolitan City

The litigation performer redD1

Housing Redevelopment Project Cooperatives

The representative of the partnership YD

Attorney Park Young-chul, Counsel for the plaintiff-appellant

April 9, 2010

May 7, 2010

1. 피고가 2005. 11. 8. ◈ 주택재개발정비사업조합 설립 추진위원회에 대하여 한 주택재개발정비사업조합 설립 인가처분은 무효임을 확인한다.

2. The supplementary part of the costs of lawsuit shall be borne by the Intervenor, and the remainder shall be borne by the Defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On January 11, 2001, the head of Busan Metropolitan City publicly announced the redevelopment master plan in Busan Metropolitan City as of No. 2001-11 of the Busan Metropolitan City’s announcement, the head of the Busan Metropolitan City designated a square meters of 31,000 meters (hereinafter “instant prearranged area”) per day of Geumdong-dong, Busan Metropolitan City (hereinafter “Seoul Metropolitan City”).

나. ◈ 주택재개발정비사업조합 설립 추진위원회(이하 '이 사건 추진위원회'라 한다) 대표자 최C은 2003. 12. 23. 피고에게, 사업시행 예정구역을 이 사건 예정구역에다 금곡동 ① 일원을 추가한 금곡동 ○ 주공5단지 북측 일대 33,717㎡로 하여 이 사건 추진위원회 설립승인을 신청하였고, 피고는 2004. 2. 2. 위 구역 33,717² 내 토지 등 소유자 148명 중 92.5명의 동의(동의율 62.50%)를 얻었다는 이유로 구 도시 및 주거환경정비법(2005. 1. 14. 법률 제7056호로 개정되기 전의 것) 제13조에 의하여 이 사건 추진위원회의 설립을 승인하였다(이하 '이 사건 승인처분'이라 한다).다. 그 후 부산광역시장은 2005. 8. 3. 금곡동 ○ 일원 36,025m(이하 '이 사건 사업구역'이라 한다)를 구 도시 및 주거환경정비법(2005. 8. 4. 법률 제7678호로 개정되기 전의 것) 제4조 제2항, 제3항에 따라 금곡1구역 주택재개발 정비구역으로 지정·고시 하였다.

D. In order to implement a housing redevelopment project in the project area of this case, the promotion committee of this case distributed to 157 owners of the land, etc. in the project area of this case a written consent to establish the association (hereinafter referred to as the "written consent of this case") and obtained 128 consent (81.52%) and applied for authorization to establish the housing redevelopment project association on October 24, 2005 to the defendant. The main contents of the written consent of this case are as follows.

3. Consent to establish an association and improvement projects;

(a) Outline of the design of the new building;

A person shall be appointed.

(b) Estimated amount of the costs for removal and new construction of structures;

A person shall be appointed.

(c) Sharing of expenses under paragraph (2);

(1) impose and collect expenses according to the articles of incorporation of the partnership, and make a provisional settlement at the time of management and disposal, and make a final settlement at the time of liquidation of the partnership;

(2) To assess the value of assets owned by members as prescribed by the articles of association and to equally bear and distribute expenses and profits in accordance with the standards for administration and disposal prescribed by the articles of association in accordance with the principle of equity.

(3) The proceeds from the general sale of houses and ancillary and welfare facilities and the contributions of cooperative members resolved or written consent from the General Meeting of cooperative members shall be preferentially appropriated for the costs of the construction and all related expenses for the project to be paid to the project, and the fair apportionment shall be made in accordance with the articles of

(d) Matters concerning the allotment of sectional ownership of the newly constructed building;

(1) The management and disposition standards of the articles of association shall be followed, and the determination of the number of articles of association shall be based on the computerized lottery pursuant to the provisions of Article 53 of the articles of association; however, if there exists competition, it shall be in accordance with

(2) The area of housing, etc. to be sold after the implementation of the project shall be based on the area of sale (exclusive + public area), and the site shall be sold in co-ownership in proportion to the area of housing, etc. sold in lots.

(3) The remaining housing and commercial buildings and other welfare facilities remaining after the sale to the association members first are sold to the general public as stipulated by the relevant statutes and the articles of association.

(4) Land shall be registered after the completion of the project, and the building shall be registered for each conservation of the occupant members.

7. Details of consent;

As above, I agree to the establishment of an association under Article 16(1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents as the owners of lands, etc. in Zone 1 of trigrams Act and the matters in subparagraphs 3 through 6, and agree to the establishment of an association under Article 16(1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents. In addition, I agree to the changes in the contents of the project implementation authorization, the terms of the contract with the contractor, etc., and the contents of the association members' settlement money, etc. are changed or the adjustment of the contents of the association members' settlement money,

E. On September 21, 2005, Busan Metropolitan City publicly announced and designated potential zones as 35,800 meters from Geumdong-dong, Geumdong-dong in the Master Plan for the Improvement of Urban and Residential Environments on September 21, 2005 (after that, on November 29, 2006, the size of the said zone was changed to 36,002 square meters due to the correction of the size error based on the cadastral boundary survey). The Defendant determined on November 8, 2005, that the instant Promotion Committee met the quorum requirements necessary for establishing an association, and approved the establishment of the Intervenor’s Intervenor’s (hereinafter “ Intervenor’s association”). (hereinafter “instant authorization disposition”).

[Ground for recognition] A without dispute; Gap evidence Nos. 1, 3, 5, 6; Eul evidence Nos. 1 through 135; Eul evidence Nos. 1, 2, 3, 5; Eul evidence No. 4; Eul evidence No. 8 (=Evidence No. 2); Eul evidence Nos. 11, 12, 15, 16, 17, 19, 20, and 21; Eul's each statement or video Nos. 1 through 135; Eul's whole purport of the pleading;

A. Summary of the plaintiffs' assertion

The instant authorization disposition is null and void, even if the following defects exist at the time of the instant authorization disposition, and it is evident that such defects are significant and defective.

1) According to Article 16(1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7715, Dec. 7, 2005; hereinafter “former Act”) and Article 26(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 19503, Jun. 7, 2006); when establishing a housing redevelopment project association, the consent of the owners of the land, etc. shall be obtained by the written consent stating the outline of the building design to be constructed, the outline of the cost required for removal and new construction of the building, the cost sharing, and the matters concerning the cost sharing. Among them, the matters concerning the cost sharing should be determined by the owner of the land, etc. as the basis for determining whether to participate in the redevelopment project with considerable cost. Thus, the cost sharing should be determined to the extent that it does not reach an agreement again at the implementation stage of the redevelopment project, or at least the cost sharing should be determined to the extent possible, and the contents of the consent of this case are very abstract.

2) The approval for the establishment of a promotion committee by the head of a Si/Gun, which is conducted after a rearrangement zone for an urban environment rearrangement project becomes final and conclusive, is null and void. Since the promotion committee was established before the rearrangement zone is designated and publicly announced, the approval disposition in this case is null and void. The promotion committee that becomes null and void applies for the approval for the establishment of an intervenor association, even though the committee applied for the approval for establishment, the approval disposition in this case is null and void.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) A) Under Article 16(1) of the former Act and Article 26(1) of the Enforcement Decree of the same Act, when a committee for promotion of a housing redevelopment project intends to establish an association, it provides that (i) the outline of the design of the building to be built from the owner of the land, etc., (ii) the outline of the cost of removal and construction of the building, (ii) the apportionment of the above expenses, (iii) the apportionment of ownership after completion of the project, and (iv) the consent form stating the matters concerning the ownership after completion of the project, and (v) the consent form in Article 12(1)6 of the former Busan Metropolitan City Ordinance on the Maintenance of Urban and Residential Environment (amended by Ordinance No. 4116 of Aug. 2, 2006), the consent form of the owner of the land, etc. shall be in the form of the Regulations on the Operation of the Rearrangement Project Association Establishment Promotion Committee, and (iii) the purport of Article 12(1)4(B) and subparagraph 8(B) of the present consent form of the Housing Development Act can be recognized as a more.

B) According to the facts acknowledged earlier, matters concerning the “ particularly the cost-sharing” among the contents of the standard written consent and the “matters concerning the ownership ownership after the completion of the project” are generally prescribed regarding the outline of the construction of the building to be constructed by the instant promotion committee, the amount of expenses to be incurred in the removal and new construction of the buildings. The value of the assets owned by the association members shall be assessed as prescribed by the articles of association and the cost-sharing and distribution equally according to the principle of equity in accordance with the standards for management and disposition, but all the expenses related to the construction cost and the projects to be paid to the contractor shall be preferentially appropriated for the general revenues of the housing and accessory and welfare facilities and the cooperative contributions decided or agreed to

It is determined that the ownership shall be attributed fairly after the completion of the instant project, in accordance with the management and disposal standards of the association's articles of incorporation, and the determination of the same subparagraph and subparagraph shall follow the standards for the management and disposal of the association's articles of incorporation, and the area of housing, etc. sold after the implementation of the project shall be based on the area of sale (exclusive use area + common use area) and the site shall be sold in common in proportion to the size of the housing, etc. sold in lots, and the remaining housing, etc. remaining after the preferential sale to the association members shall be sold in general. As such, the contents of the instant written consent, which provide for the matters concerning the apportionment of ownership after the completion of the project, are not specified in the standards for allocation of project expenses to be borne by the association members in light of the provisions of relevant Acts and subordinate statutes, such as the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Sharing of Expenses (see Supreme Court

C) Therefore, the plaintiffs' assertion of the above Paragraph 1, premised on the fact that the cost-bearing standard prescribed in the instant written consent is very abstract and is unlawful, is without merit.

2) A) Comprehensively taking account of the provisions of Article 2 Subparag. 9(a), Article 4(1) and (2), and Article 13(1) and (2) of the former Act, in order to establish an association for various rearrangement projects under the Act on the Maintenance and Improvement of Urban Areas, such as Housing Redevelopment Projects, it is clear that the scope of “owner of land, etc.” should be determined on the premise thereof, and that the designation and announcement of the rearrangement zone by the Special Metropolitan City Mayor, Metropolitan City Mayor or Do governor should be prior to the determination of the scope of “owner of land, etc.” in order to

In addition, the association establishment promotion committee system under the Act on the Maintenance and Improvement of Urban Areas is introduced in order to smoothly implement the rearrangement project by granting a certain legal framework to the project promotion committee, etc., which had not been legally regulated even though they had frequently formed several legal issues as they had been active at the early stage of the rearrangement project (Article 16(1) and (2) of the former Act). Accordingly, the promotion committee has the right to apply for authorization to establish an association (Article 16(1) and (2) of the former Act), the rights and obligations related to the affairs performed by the promotion committee are comprehensively succeeded to the partnership (Article 15(4) of the former Act), the land, etc. in the rearrangement zone is naturally a member of the association (Article 19(1) of the former Act), and further, Article 13(1) and (2) of the former Act should not be granted multiple approval of the promotion committee within one rearrangement zone.

one legal status is recognized.

Therefore, approval for establishment of redevelopment association by the head of a Si/Gun without designation and public notice of a rearrangement zone cannot be granted in violation of the aforementioned several legal provisions and the purport of the promotion committee system, barring any special circumstance, and such defect cannot be seen as being in special circumstances.

In addition, it should be objectively clear as well (see Supreme Court Decision 2009Du12297, Oct. 29, 2009). In addition, considering the background of the introduction of the Promotion Committee under the Urban Improvement Act and the special legal status, only the Promotion Committee, which has obtained approval for establishment of a Si/Gun, can apply for authorization for establishment, and the other party or organization has no qualifications or authority to file such application. Thus, in a case where the defect in the approval for establishment itself is serious and apparent, the approval for establishment upon the application of the Promotion Committee is deemed to be null and void because the defect in the approval itself is caused by the application of the applicant or the application of a person without authority.

B) Comprehensively taking into account the following circumstances, namely, ① the instant prearranged zone is no more than 31,00 square meters, the instant promotion committee arbitrarily added 2,717 square meters, which is the owner of land, etc. not included in the rearrangement project scheduled zone; ② the instant promotion committee was organized as a promotion committee and applied for the instant promotion committee’s establishment; ② any standard for determining the owners of land, etc. within the project implementation zone at the time of approval for the establishment of the promotion committee was presented or it was not officially confirmed (the Plaintiff’s approval for the alteration of the development project zone against the Intervenor’s association at Busan District Court)’s determination of invalidity of the general meeting resolution (209Guhap73), and the Defendant’s decision was rendered that the instant promotion committee’s establishment of the redevelopment project cannot be seen as being invalid, solely on the grounds that there was no possibility that the Plaintiff’s alteration of the legal status of the landowners’ association at the time of the alteration of the relevant promotion committee’s establishment of the redevelopment project zone at the time of the approval for the establishment of the promotion committee.

C) Therefore, the approval for establishment of the instant promotion committee is null and void. The instant authorization disposition based on the application of the promotion committee is also based on the application of a person who is not qualified or authorized to file an application, and its defect is serious and apparent.

3. Conclusion

Therefore, the plaintiffs' claims of this case are with merit, and it is so decided as per Disposition by admitting them.

The presiding judge, judge and associate judge;

Judges' Quota

Judges Choi Young-chul