209Guhap73 Nullification of the resolution of the management and disposal assembly

1. Al (77 years old, female);

2. A2 (Year 58, South Korea)

3. A3 (Year 56, South Korea)

4. A4 (Attending 39 Years, South Korea)

5. A5 (Attending 55 Years, Women)

[Judgment of the court below]

■■구역 주택재개발정비사업조합

Samsung Law Firm, Attorney Park Jong-soo, Counsel for the plaintiff-appellant

March 13, 2009

April 3, 2009

1. The main claim of this case shall be dismissed.

2. We confirm that the management and disposal plan rendered by the Defendant on October 22, 2007 is null and void. 3. Litigation costs are borne by the Defendant.

The primary purport of the claim is to revoke the management and disposition plan made on October 22, 2007 by the defendant.

Preliminary Claim: Section 2 of the Disposition No. 2 (the defendant confirms that the resolution of the management and disposition general meeting on October 22, 2007, which was made by the defendant on October 22, 2007, is invalid. However, in light of the main claim and the contents of the reasons for the addition, it appears that the management and disposition plan on October 22, 2007, which was made on October 22, 2007, is invalid.)

1. Details of the disposition;

A. The defendant was established for the purpose of implementing a housing redevelopment improvement project (hereinafter referred to as the "project in this case") in the area of 36,002 square meters in Busan Northern-gu, Busan-gu, and on November 8, 2005, the housing redevelopment improvement project partnership approved by the head of the Busan-gu Busan-gu, Busan-do, and the plaintiffs are members of the defendant's association. (b) The defendant obtained an authorization to implement the project on May 4, 2007 from the above North-gu head of the Gu on May 16, 2007, notified the members of the application for parcelling-out and notified the parcelling-out to the members on May 16, 2007 (the extended sale announcement was made on June 25, 2007) and obtained an application for parcelling-out from the members until July 14, 207. The defendant held an extraordinary general meeting on October 22, 2007 (hereinafter referred to as the "general meeting in this case"), and obtained an approval of the management and disposal plan (205).

【Fact-finding without a dispute over the grounds for recognition】 Any entry of Gap evidence 1 through 4, Eul evidence 1, Eul evidence 2-1, 2, Eul evidence 4 through 6, 11, and 12, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

The resolution of the general meeting of this case is null and void due to the following defects, and the management and disposal plan of this case, which was established by the above defect resolution, is unlawful. Thus, the cancellation of the management and disposal plan of this case is sought in the first place and the confirmation of invalidity of the management and disposal

(1) The Defendant did not fully notify the members of the estimated amount of charges for each partner, which is the most important factor when providing guidance on the application for parcelling-out to the members.

(2) Before holding the instant general meeting, the Defendant requested written consent from its members on the instant general meeting resolution without entirely notifying the members of the appraisal value of the rights to the previous land or buildings for each subject of sale and the amount of additional charges for each subject of sale, as well as the written consent on the instant general meeting resolution. In addition, the instant general meeting resolution does not include the assessment value of the rights to the previous land or buildings for each subject of sale and the amount of additional charges for each subject of the ownership, which are essential parts of the instant general meeting resolution. Therefore, the instant management and disposal plan is omitted.

B. Relevant legislation

It is as shown in the attached Form.

(c) Fact of recognition;

(1) After receiving an authorization for project implementation on May 4, 2007, the Defendant sent a notice on May 16, 2007, stating the following matters to the members of the association: “The summary charges: on the basis of the date when the approval for project implementation is publicly notified under the provisions related to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents", the previous land, etc. is appraised on the basis of the date when the approval for project implementation is publicly notified, and at the present time, the association is currently under preparation for appraisal and assessment, and the total cost of the land or construction facilities scheduled for sale, and the appraisal and assessment value of the previous land and buildings will take considerable time in order to determine the appraisal and assessment value, so it is difficult to give notice of individual charges in reality, and the overall project cost including the total value of the previous land and buildings, the contract cost required in the process of project implementation, the total estimated amount of the land or construction facilities scheduled for sale, and the overall amount of the charges to be borne by the members of the association after the determination of the management and disposal plan.

(2) The Defendant did not notify the members of the appraisal value of the rights to the previous land or structures for each subject of parcelling-out and the amount of additional charges for each partner after filing an application for parcelling-out with the general meeting of this case.

(3) The records of the management and disposal plan's meeting held by the Defendant to the participants in the general assembly of this case include "the standards for the plan for the design of sale and management and disposal plan". The standards for the management and disposal plan include only the total appraised in relation to the appraisal status of the previous land or buildings, which are not the appraised appraised by each person subject to sale, and only the general standards state that "the standard price for sale shall be the amount calculated by multiplying the appraised value of the previous land, etc. by the proportion of the appraised value of each person subject to sale ( = 126.0956)" with regard to the calculation of the standard price for sale by each person subject to sale. In relation to the imposition and collection of the maintenance project cost, only the general standards state that "where a person who purchased a building site or structure differs between the standard price for sale and the price of the building site or building sold to the purchaser

(4) The Defendant, on November 23, 2007 following the day following the general meeting of this case, notified each member of the appraisal value of the rights to the previous land or buildings for each subject of sale and the amount of additional charges for each partner.

【In the absence of dispute over the grounds for recognition, Gap evidence 2, Eul evidence 2-1, 2-2, Eul evidence 4, 11, and 12, the purport of the whole pleadings

D. Determination

(1) Whether a lawsuit against the primary claim is lawful

In light of the fact that the management and disposal plan does not have any legal effect until there is a disposition to authorize it, and that if a subsequent disposition to authorize it becomes effective, but if it fails to obtain it, it would be the same as the absence of the provisions of the management and disposal plan from the beginning, it is reasonable to deem that the period for filing a lawsuit is calculated from the time when considering that even if a management and disposal plan is established by the resolution of the general meeting, it is the time when the determination of the complete legal effect is the time of the disposition to authorize it, in cases of an appeal disputing the management and disposal plan itself, as in cases of seeking a revocation of the authorization, as in cases of an appeal, it is the same as in cases of seeking a revocation of the authorization.

On February 6, 2008, as seen earlier, the authorization date of the instant management and disposal plan was 90 days after the lapse of 5 days thereafter, and it is apparent that a lawsuit (this lawsuit was filed as a civil lawsuit with the Busan District Court on May 20, 2008, and was cultivated to the same court and administration on January 9, 2009) was filed with respect to the primary claim of this case. Thus, the lawsuit of this case is unlawful since it is filed after the lapse of the period of filing a lawsuit.

(2) Determination on the conjunctive claim

(A) Judgment on the first argument by the plaintiffs

Since the shares of each partner can only be determined after the completion of the application for parcelling-out under the management and disposal plan, it can only be decided that the object of parcelling-out, the object of liquidation, and the allocation of a balance can only be decided. Thus, the project implementer must notify only the general details of the shares for the union members at the stage of giving guidance on the application for parcelling-out to the union members. However, Article 46 (1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444, Feb. 6, 2009; hereinafter referred to as the "Domination Act") of Article 46 (1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444, Feb. 6, 2009; hereinafter referred to as the "Domination Act") notifies the landowner of the summary of the shares of the land, etc.

In this case, according to the facts of recognition, the defendant did not notify at all of "the details of the approximate charges for each partner" while providing guidance for the application for parcelling-out and announcing the sale of lots, and it appears that he clearly expresses his intention to establish a management and disposal plan without notifying "the details of the outlined charges". Thus, this is contrary to the provisions of the Do administration law, and it is unlawful, and the management and disposal plan of this case, which was established based on the illegal application procedure for parcelling-out, is null and void in full view of the facts that there are errors as referred to in the following (b).

(B) Judgment on the second argument by the plaintiffs

Article 48 (1) of the Do Government Act provides that a management and disposal plan to be established through a resolution of a general meeting shall include the design for parcelling-out based on the current status of the application for parcelling-out, address and name of the person subject to parcelling-out, estimated amount of the site or structure scheduled for parcelling-out by each person subject to parcelling-out, the price based on the date of public notice of the details of the previous land or structure subject to parcelling-out and the date of public notice of the project implementation authorization, the estimated amount of the rearrangement project cost, the amount of the partnership burden and the timing for the partnership members accordingly, etc. In light of the fact that the management and disposal plan is an administrative disposition that has a huge impact on the rights and obligations of the union members by converting the ownership of the land, etc. to the right to purchase the previous right, the right to claim for the payment of liquidation money, and the legal relationship is realized as determined by the public notice of transfer, the management and disposal plan shall not be deemed to have been established.

In light of the above provisions, the following circumstances are revealed: (a) although the project implementer does not explicitly require the project implementer to notify the members of the price of the previous land or buildings for each of the objects of parcelling-out and the amount of additional charges for each of the members before holding a general meeting to establish a management and disposal plan, the project implementer, prior to holding a general meeting to establish a management and disposal plan, notifies the members of the appraisal value of the previous land or buildings included in the management and disposal plan and the amount of additional charges for each of the members; (b) it is interpreted that the members are not obliged to present a variety of opinions at the general meeting to exercise their voting rights through sufficient discussion; (c) the right to separate members of the previous management and disposal plan including the amount of additional charges for each of the objects of parcelling-out and the amount of charges for each of the objects of parcelling-out and the amount of charges for each of the following matters, as well as the right to separate members of the previous management and disposal plan to be individually notified prior to holding the general meeting; and (d) the Defendant’s right to separate land or the amount of charges, as stated in the previous management and disposal plan.

(C) Judgment on the defendant's assertion

The defendant, on October 23, 2007, notified members of the public inspection of the management and disposal plan and the details of individual asset prices and charges, and tried to minimize disadvantages caused by the general charge notified by providing an opportunity to withdraw the application for parcelling-out by setting the period for filing an objection during the public inspection for 30 days. Thus, the defendant's assertion to the purport that it is difficult to deem the above defect as unlawful merely because the contents of the general charge are not notified. However, the above circumstance that was made after the establishment of the management and disposal plan of this case cannot be seen as recovering the above defect. Thus, the defendant's above assertion is rejected.

3. Conclusion

Therefore, the plaintiffs' primary claim of this case is dismissed as it is unlawful, and the conjunctive claim of this case is justified, and therefore, it is decided as per the disposition (whether the plaintiffs agreed to enter into a sales contract after filing an application for parcelling-out because they do not clearly dispute the defendant). However, in this case, even if the plaintiffs did not move to a sales contract, it cannot be deemed that the rights and obligations of the union members became final and conclusive because the management and disposal plan cannot be deemed to have been established even if the plaintiffs did not move to a sales contract, the plaintiffs' interests and standing to sue to seek nullification of the management

The presiding judge, judge and associate judge;

Judge Sung-sung

Judges Kim Jong-chul