In a case where a project plan and articles of association were resolved to develop two renewal acceleration zones in the name of the consolidated association promotion committee, which were held in the name of the integrated association promotion committee, with the designation and approval of two establishment promotion committees having different establishment zones, and then received a disposition to establish an association, along with a written consent from the owners of land, etc., the case holding that the defect is significant and apparent even if the establishment or approval of the integrated association promotion committee was made without the establishment or approval of the integrated association promotion committee

Articles 13 and 16 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 9444, Feb. 6, 2009); Article 19 of the Administrative Litigation Act

See Attached List of Plaintiffs (Law Firm Lotex, Attorneys Kim Dong-dong et al., Counsel for the plaintiff-appellant)

The head of Dongdaemun-gu Seoul Metropolitan Government (Law Firm Eul, Attorneys Lee this-soo et al., Counsel for the plaintiff-appellant)

The Ministry of Finance and Economy (Law Firm B, Attorneys Lee Dong-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Nu34615 decided February 15, 2012

All appeals are dismissed. The costs of appeal, including the costs of participation, are assessed against the plaintiffs.

We examine the grounds of appeal.

1. As to the grounds of appeal Nos. 1 and 2

A. According to the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444, Feb. 6, 2009; hereinafter “former Act”), where a person, other than the head of a Si/Gun or the Korea Housing Corporation, intends to implement a rearrangement project, an association consisting of owners of land, etc. shall be established, and for this purpose, an association establishment promotion committee consisting of at least five members, including the chairperson, shall be organized with the consent of a majority of the owners of land, etc. (hereinafter “promotion committee”). The promotion committee shall obtain approval from the head of a Si/Gun (Article 13(1) and (2)). The promotion committee may perform the duties necessary to establish an association, such as selection of a rearrangement project management contractor, preparation for the authorization of establishment of an association, and transfer accounting books and related documents stating the spent expenses to the association within a certain period from the date of authorization of establishment, and the rights and obligations related to the duties performed by the promotion committee shall be comprehensively transferred (Articles 14

Meanwhile, according to the former Urban Improvement Act, when a housing redevelopment project promotion committee intends to establish an association, it shall obtain authorization from the head of a Si/Gun with the consent of not less than 3/4 of the owners of lands, etc. (Article 16(1)). The association shall establish its articles of association after the resolution of the inaugural general meeting and elect its officers, and shall be formed as a juristic person upon obtaining authorization for the establishment of an association (Articles 18(1) and (2), 20, and 21). Under the supervision of the competent administrative agency, the housing redevelopment association established through such procedures has the status of an administrative agent performing certain administrative actions within the rearrangement zone as prescribed by the Act and subordinate statutes within the scope of implementing a housing redevelopment project under the Urban Improvement Act.

In light of the structure, contents, and purport of the above-mentioned provisions, the approval of the committee's establishment is a disposition granting its effect by supplementing the act constituting the committee's organization, which is an unincorporated association, which is the main body for the establishment of the association. However, the approval of the association is a kind of permanent disposition granting the status as an administrative body (public corporation) with authority to implement a housing redevelopment project under the Urban Improvement Act if it satisfies the legal requirements. The authority of the committee's establishment differs from its purpose and character. Since the authority of the committee is limited to performing the duties to promote the establishment of the association, if the rights and obligations related to the duties of the committee's establishment are comprehensively succeeded to the association, the committee's establishment shall be completed after accomplishing its purpose. The approval of the association's establishment shall meet more strict consent requirements than the approval requirements of the committee's establishment. In addition, it is established through the resolution of the inaugural general meeting and the association's establishment of collective association by confirming the articles of association through the resolution of the inaugural general meeting and selecting the executives. Thus, illegality of the approval of the committee's establishment is unreasonable.

Therefore, since the disposition to establish an association does not necessarily require the legitimacy and effectiveness of the disposition to establish a promotion committee, so long as a housing redevelopment association is established by meeting the consent requirements prescribed by the former Act and subordinate statutes, the disposition to establish an association cannot be deemed unlawful on the ground of defects in the disposition to approve the association already extinguished. Therefore, unless there is a serious reason to believe that the legislative intent of the promotion committee system is to be more severely unlawful to allow one promotion committee to perform its duties within a single improvement zone under the Urban Improvement Act, the validity of the disposition to establish an association cannot be asserted on the ground of defects in the composition of the promotion committee or the disposition to approve (see Supreme Court Decision 2011Du8291, Dec. 26, 2013).

B. According to the reasoning of the judgment below, the court below acknowledged the facts as indicated in its reasoning after compiling the adopted evidence. ① It was established by two promotion committee including the Housing Redevelopment Promotion Committee of Zone 3-1 (hereinafter referred to as the “Promotion Committee of Zone 3-2”) and the Housing Redevelopment Promotion Committee of Zone 7 (hereinafter referred to as the “Promotion Committee of Zone 3-2”) in this case where housing redevelopment improvement project is being implemented, and designated as one promotion zone in accordance with the Urban Renewal Promotion Plan. ② The owners of land within the 3-1 promotion zone in this case, which was held in the name of the Intervenor joining the Intervenor joining the Defendant (hereinafter referred to as the “ Part 3-1”) (hereinafter referred to as the “ Part 3-1 promotion zone”) and the 3-2 promotion zone (hereinafter referred to as the “3-2 promotion zone”) were to be developed by combining the project plan and the Intervenor’s association’s association’s association’s establishment promotion zone, and determined that it was difficult to view the new renewal promotion zone’s establishment approval or the new renewal promotion zone’s association’s project.

Furthermore, the court below held that Article 6 (1) of the former Ordinance on the Maintenance of Urban and Residential Environments (Seoul Special Metropolitan City Ordinance No. 4174), which was enforced at the time when the committee was approved to establish a rearrangement zone, is "where the head of the Gu seeks to formulate a rearrangement zone at the request of residents, consent under Article 5 subparagraph 7 shall be obtained from at least 2/3 of the owners of the land, etc." The above provision is based on the premise that it is possible to present the concept of "owner of the land, etc." even before the designation of the rearrangement zone. (3) The promotion committee system guarantees special legal status for the promotion committee so that the promotion committee can smoothly proceed with the preparation of the rearrangement project and the establishment of the promotion committee, and that it is difficult for residents of the promotion committee to implement the rearrangement project at his/her own discretion, but it is not possible for the promotion committee to arbitrarily formulate the rearrangement zone's basic plan or to implement the rearrangement zone's project at the time of the designation of the promotion committee.

C. In light of the aforementioned legal principles, even if there was a disposition to approve the establishment of the instant committee without obtaining an integrated promotion committee for the establishment of the Intervenor association or a disposition to approve the promotion committee before the public announcement of designation of the rearrangement zone, such defect does not constitute an extent that the legislative intent of the promotion committee system under the former Urban Improvement Act. Therefore, since the application for authorization to establish the promotion committee under Zone 3-1 and Zone 3-2 cannot be deemed unlawful and invalid, the instant disposition to approve the establishment of the promotion committee cannot be deemed unlawful.

Although there are some inappropriate parts in the reasoning of the lower court’s explanation on this part, the conclusion of rejecting the Plaintiffs’ assertion on the ground that the instant disposition of approving the establishment is not unlawful is justifiable, and there is no error of misapprehending the legal doctrine on the invalidation of authorization of the establishment.

2. Regarding ground of appeal No. 3

A. Article 16(1) and (5) of the former Act provides that “The consent of the owners of lands, etc. shall be obtained as the requirements for authorization to establish a housing redevelopment project and matters necessary for the objects of consent shall be delegated to the Presidential Decree.” According to the delegation, Article 26(1) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 21171, Dec. 17, 2008) provides that a written consent of the promotion committee for housing redevelopment project shall include a summary of the design of the building to be constructed (Article 16(1) and (5) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 21171, Dec. 17, 2008); a rough amount of expenses to be incurred in removal and new construction of the building (Article 2); a written consent of the Minister of Construction and Transportation (Article 30 subparag. 24, 2009).

B. Meanwhile, the standard written consent states that “The expenses shall be imposed and collected in accordance with the articles of association, the provisional liquidation at the time of the management and disposal, the final confirmation of the liquidation amount at the time of the liquidation of the association, the value of the assets owned by the association shall be calculated as prescribed by the articles of association, and the expenses shall be borne in proportion thereto.” In addition, the standard written consent states that “the standards for management and disposal of the articles of association of the association shall apply to ownership (Article 26(1)4 of the Enforcement Decree), and the determination of a newly-built unit sale of a building owned by the association shall be in accordance with the standards for the disposal and disposal of the articles of association of the association, and the determination of a unit sale shall be in accordance with the order of a large amount of the value of the rights of the association members and the previous association, and the determination of unit sale shall be in accordance with the electronic lottery by the articles of association of the association (Article 26(1)5 of the Enforcement Decree of the above Act).” With respect to the articles of association (Article 16(5), consent to the Urban and the Maintenance Act for Residents.

In light of the structure, form, and content of the provisions on consent to the establishment of the association of a housing redevelopment project, and the purport of obtaining consent to the establishment of the association as an autonomous norm on the operation and activities of the association, rather than to obtain consent to the specific contents to be included in the articles of association, it is interpreted to the effect that the committee should prepare the articles of association and comply with the regulations. ② The specific contents of the agreement shall be governed by the articles of association or the articles of association with the specific contents of the agreement, rather than obtaining consent to the draft articles of association or the draft articles of association with the specific contents of the agreement, it is interpreted to the purport of obtaining consent to the establishment of the association. ③ In addition, the number of opinions on the articles of association of the association can be sufficiently achieved at the inaugural general meeting of the association. In addition, it is unreasonable to require the association to obtain consent to the contents of the agreement along with the draft articles of association when it obtains consent to the establishment of the association, and it is also unreasonable to demand such consent.

C. In the same purport, the lower court is justifiable to have determined that even if the association’s articles were not attached to the written consent on the establishment of the instant association in accordance with the standard form of written consent, the consent cannot be deemed null and void. In so doing, it did not err by misapprehending the legal doctrine on the validity of

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the plaintiffs, including the costs of participation in the appeal. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: Omitted

Justices Park Poe-young (Presiding Justice)