2018Gu Joint 11180 Revocation of Disposition Plan, etc.

Attached Table 1.

[Defendant-Appellant] Defendant 1

Attorney Park Jong-soo, Counsel for the defendant-appellant

A District Housing Redevelopment Project Association

Attorney Kim Dong-ho, Counsel for the defendant-appellant

August 16, 2018

November 8, 2018

1. The part concerning Plaintiff B and C of the management and disposition plan adopted by the Defendant at the ordinary meeting of May 4, 2018 shall be revoked.

2. Each of the plaintiffs' claims except the plaintiff B and C are dismissed.

3. Of the costs of lawsuit, the part arising between the plaintiff B, C and the defendant is borne by the defendant, and the remainder between the plaintiffs and the defendant is borne by the remaining plaintiffs.

The management and disposition plan adopted by the Defendant at the ordinary meeting of May 4, 2018, which was revoked by the Plaintiffs.

1. Details of the disposition;

A. Gwangju Metropolitan City, a public announcement of Gwangju Metropolitan City on July 18, 2007, designated a rearrangement zone for redevelopment project as a zone for redevelopment project. Moreover, on August 29, 2007, the Defendant obtained authorization to establish the said redevelopment project from the head of the Dong-gu Gwangju Metropolitan City to implement the said redevelopment project. Meanwhile, except for Plaintiff F, G, C, H, I, I, and J2, the Plaintiffs were partially transferred from around 2015 to around 2015, a number of real estate located within the said rearrangement zone as originally owned by the first one (3)

B. The Defendant received an application for parcelling-out from March 22, 2017 to May 30, 2017, and the Plaintiffs directly filed an application for parcelling-out within the aforementioned period or the pre-owner of the Plaintiffs filed an application for parcelling-out, and the Plaintiffs to whom the real estate was transferred after the period for applying for parcelling-out was notified to the Defendant.

C. On May 4, 2018, the Defendant, like the Plaintiffs, transferred a large number of real estate owned by the first one and owned a large number of real estate, and decided on a management and disposal plan that recognizes only one right to sell the same real estate to a large number of real estate owners (hereinafter referred to as “the management and disposal plan in this case”). On July 27, 2018, the head of the Dong-gu Seoul Metropolitan City approved the above management and disposal plan on the condition that he/she immediately implemented the procedure for the revision of the management and disposal plan in accordance with the outcome of the instant lawsuit (this Court Decision 2018Guhap1180) and applied for the authorization for the revision thereof.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 22 (including virtual numbers; hereinafter the same shall apply), Eul evidence Nos. 1 through 9, 12 and 13, and the purport of the whole pleadings

2. The plaintiffs' assertion

In a case where one person owns a large number of real estate at the time of authorization for the establishment of a partnership, but thereafter transfers it, and a large number of persons possess a large number of real estate at the expiration of the period for application for parcelling-out, the above large number of owners should be recognized. Therefore, the Plaintiffs should have one unit of right to sell each individual.

3. Relevant statutes;

Attached Table 3.

4. Determination

A. Determination on this safety defense

1) Summary of this defense

The defendant asserts that since the management and disposal plan of this case was authorized by the head of the Dong-gu Gwangju Metropolitan City after the management and disposal plan of this case, the management and disposal plan of this case cannot be subject to the lawsuit of this case, and that the above

2) Determination

A management and disposition plan becomes effective when the competent administrative agency approves and publicly notifies the management and disposition plan. Thus, a lawsuit seeking confirmation of validity is not allowed by removing only the part of the resolution of the general meeting, which is a mere procedural requirement leading to an administrative disposition, separate from the above authorization and public notice, and filing a lawsuit seeking confirmation of validity (see, e.g., Supreme Court en banc Decision 2007Da2428, Sept. 17, 2009).

However, as seen earlier, the head of Dong-gu, Gwangju Metropolitan City did not approve the Defendant’s management and disposition plan as it is, but approved the above management and disposition plan on the condition that the Defendant should immediately undergo the procedure for modifying the management and disposition plan according to the outcome of the instant lawsuit. As such, the Plaintiffs are entitled to remedy upon obtaining confirmation of the legality of the above management and disposition plan in the instant lawsuit, and there is a special reason to dispute the above management and disposition plan itself, which was resolved on May

Therefore, since the defendant's main defense is groundless, the lawsuit of this case is legitimate.

B. Judgment on the merits

1) Judgment on the plaintiffs' assertion

Comprehensively taking account of the aforementioned evidence and evidence No. 10 evidence and the following facts and circumstances acknowledged by comprehensively considering the purport of the entire pleadings, it is difficult to view that the right to sell one unit per each of the plaintiffs should be recognized, unless otherwise stipulated in the defendant's general meeting resolution or the articles of incorporation. It is reasonable to view that only one owner owns a large number of real estate at the time of approving the establishment of the association pursuant to Article 39 (1) 3 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 15676, Jun. 12, 2018; hereinafter referred to as the "Urban Improvement Act"). Therefore, the plaintiffs' assertion regardless of whether the plaintiffs are representative members, is not justified.

A) According to Article 39(1)1 and 3 of the Urban Improvement Act, when the ownership and superficies of land or buildings belong to several co-ownerships, and when one owner of land or buildings acquires the ownership or superficies of the land or buildings from one owner of land, etc. after authorization for establishment, one representative of such several owners shall be regarded as a member. According to Article 76(1)6 of the Urban Improvement Act regarding the guidelines for formulating a management and disposal plan, one house shall be supplied in cases where one household or one person owns one or more houses or lands, and where two or more persons who do not belong to the same household jointly own one house or one land, only one house shall be supplied.

According to the above provisions, where one real estate is jointly owned by several persons and where several persons own one real estate, it seems that all of them are equally treated in recognition of association members and recognition of right to sell the real estate. In other words, only one association member is recognized, and only one right to sell the real estate is recognized. However, according to the plaintiffs' assertion, where several persons own a large number of real estate due to the transfer of the real estate during the initial possession of a large number of real estate, one association member or right to sell the real estate is recognized, and therefore, it would result in different treatment in the same way as the law is being treated differently according to the contingency of transfer.

B) Article 77(1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”) which provides for the right to purchase a parcel of land fundamentally prevents entry into an speculative force, etc. which is unjust enrichment prior to the designation and public announcement of an improvement zone, and, in order to protect the rights and interests of the existing members, restrict the right to purchase a parcel of land. The above provision does not provide for one real estate or cases like the plaintiffs. In a case where one of the initial real estate is owned by transfer, etc., the right to purchase a parcel of land can be restricted pursuant to Articles 39(1)1 and 76(1)6 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”) and Article 77(1)3 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions”). Meanwhile, Article 77(1)1)6(2) of the Act does not stipulate.

C) Although the case is not identical to this case, the Supreme Court held that the meaning of Article 39 (1) 1 of the Act on the Maintenance and Improvement of Urban Areas cannot be interpreted to the purport that the remaining co-owners other than the representative co-owners should be completely withdrawn from the association legal relations between the reconstruction association and the association, and that the above legal principle can also be applied mutatis mutandis to this case in that the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for the sake of procedural convenience in the operation of the association by selecting one representative co-owners who shall represent all co-owners and register them with the association and allowing them to register them with the association (see, e.g., Supreme Court Decision 2006Da53245, Feb. 12, 2009). Since the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions and the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions of Urban Areas and Dwelling Conditions of Urban Areas and Dwelling Conditions of Urban Areas and the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions shall be equally treated as the owner's right to establish an association.

D) According to Article 40(1)18 of the Urban Improvement Act and Article 38(15 of the Enforcement Decree of the Urban Improvement Act (amended by Presidential Decree No. 28873, May 8, 2018; hereinafter the same), the Defendant’s articles of incorporation may determine matters concerning the rights and obligations of the association members. Article 9 of the Defendant’s articles of incorporation provides for the qualifications of the association members and provides for the rights and obligations of the association members, and Article 39(1) of the Urban Improvement Act provides for the right and obligations of the association members, and Article 10 provides for the right to purchase a building under Article 10(1)1, and provides for the right to purchase a building under Article 11(2), and provides for the loss of the union member’s qualification without filing an application for purchase within the period for application for sale. Articles 44(2) and 48(2) provides that the association members may file an application for sale, and thus, the right to purchase a building and the right to purchase a building should be recognized.

E) The redevelopment project is a project to improve the residential environment in an area where the rearrangement basis facilities are inferior and where the worn-out and inferior buildings are concentrated, or to improve the urban environment in commercial and industrial areas, etc. to recover urban functions and revitalize the commercial and commercial areas, etc., regardless of the intention of the real estate owners designated as an improvement zone, all members are admitted to the improvement zone in principle, regardless of the intention of the real estate owners designated as an improvement zone. A certain act is prohibited, the procedure is conducted in accordance with strict requirements prescribed by the Urban Improvement Act, and when the project implementation is approved, the land, etc. may be acquired or used in accordance with the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects. When the management and disposal plan is approved,

However, according to Article 76(1)6 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, where only one owner owns a large number of real estate and only one owner is recognized after the authorization for the establishment of an association, the right to private property owned by the said one owner may be deemed to be infringed. However, in light of the balance with such cases and the public interest of the redevelopment project as seen earlier, it is difficult to deem that the above case is a serious infringement on the right to private property owned by the said one owner.

F) Based on Article 25(1) of the Gwangju Metropolitan City Ordinance on Urban and Residential Environment Improvement, the Plaintiffs asserted that, as of the base date of the management and disposal plan, the Plaintiffs are owners of land, etc. as of the date of the management and disposal plan, they should be granted the right to sell each unit. However, since the above Ordinance does not exceed the delegation scope of the Act on Urban and Residential Environment Improvement or does not violate its contents, it shall be interpreted in accordance with the provisions of the Act on Urban and Residential Environment Improvement, and the above Ordinance alone does not mean that all owners of land, etc. have the right to sell unit uniformly regardless of whether they are members or the number of members. Furthermore, Article 63(1)3 of the Enforcement Decree of the Act on Urban and Residential Environment Improvement, which is invoked by the above Ordinance, can be sold to the owners of land, etc. in the improvement zone: Provided, That in cases of selling multi-family housing, the amount, time, size, or type that does not meet the standards prescribed by City/Do Ordinance, it is difficult to stipulate the Plaintiffs as the objects of sale as prescribed by the Ordinance.

2) The part concerning plaintiffs B and C

A) According to the aforementioned evidence, Plaintiff B acquired L at the time of authorization for the establishment of the Dong-gu Seoul Special Metropolitan City, which was acquired by Plaintiff B on February 25, 2016, at the time of the establishment of the association, the Plaintiff B acquired the land after being transferred to Plaintiff C on November 21, 201, and the land size of 93 square meters owned by Plaintiff C was owned by Plaintiff C from the time of authorization for the establishment of the association.

B) According to the above facts, since the above K and M were owned respectively by L and Plaintiff C at the time of approving the establishment of the association, in light of the legal principles as seen earlier, one of each of the above land should be recognized. Therefore, even if Plaintiff C temporarily owned each of the above land, the Plaintiff C transferred the above K land to Plaintiff B, thereby changing its owner. Therefore, in the case of Plaintiff B and Plaintiff C, one of each of them should be recognized.

3) Ultimately, Plaintiff B and C in the instant management and disposition plan are unlawful, and the remainder is lawful.

5. Conclusion

Therefore, the part against plaintiffs B and C in the plaintiffs' claims is justified, and all claims against the remaining plaintiffs are dismissed as it is without merit. It is so decided as per Disposition.

Judges Han-Ann-si

Judges Kim Yong-sung

Judges Hathering Materials

1) On May 4, 2018, when the size of the rearrangement zone changes thereafter, the size of the rearrangement zone is 126,43.60 square meters at the time of the resolution of the management and disposal plan.

2) They owned a number of real estate located in the above rearrangement zone before the approval for the establishment of the association, and owned a part of the real estate not transferred within the above rearrangement zone, and filed an application for parcelling-out directly within the above rearrangement zone.

However, in the case of the plaintiff C, it is as follows.

3) Specific status of the plaintiffs' ownership of real estate or details of changes in ownership are as shown in attached Table 2.

4) Article 52(1)3, which is a provision of the Enforcement Decree of the Urban Improvement Act (amended by Presidential Decree No. 28628, Feb. 9, 2018) prior to the amendment, is the same content, and thus, the provisions were written on the basis of the current Act and subordinate statutes. The same applies to the foregoing Ordinance.

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