[1] In a case where a reconstruction association, after a resolution to adopt a business plan of a company selected as a contractor in a rebuilding resolution, enters into a contract with a contractor for a construction project and subsequently modifies matters concerning the cost bearing in the original project plan beyond an ordinarily anticipated scope, whether such modification constitutes a substantial alteration of a rebuilding resolution regarding the cost bearing (affirmative)

[2] In a case where, at the general meeting of the reconstruction association under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the contents to be included in the contract for construction work are modified to increase the cost burden of association members, the quorum necessary for the consent (=at least 2/3 of the union members) and the validity of the provisions of the articles of association

[1] The criteria for selecting whether the owner of land, etc. will participate in reconstruction at the cost of expense for removal and new construction of a building to be determined at the stage of establishment of a reconstruction association, or whether the owner will sell sectional ownership, etc. and not participate in reconstruction at the market price. In the event that the rebuilding resolution decides to adopt the project plan presented by the person selected as the contractor for reconstruction in relation to the cost-bearing of the association members, matters concerning the cost-bearing for removal and new construction of the building presented in the relevant project plan are the contents of the rebuilding resolution. Thus, if the reconstruction association, in the form of a contract with the contractor, intends to revise the rebuilding resolution regarding the cost-bearing of the construction project at the time of the initial reconstruction resolution in excess of the ordinary expected range due to price fluctuations and other changes in the construction market conditions, it shall be deemed that the rebuilding resolution about the cost-bearing of the construction project at the time of the rebuilding resolution is modified, and it shall not be so changed even if the increase in the cost was inevitable due to the modification of the government policy or other unexpected situations.

[2] Where a resolution is made at a general meeting on an agenda concerning "matters to be included in the original rebuilding agreement with a contractor" subject to strict procedures for modification of the articles of association, if the contents to be included in the contract are to be modified to the cost-sharing condition of the association members adopted at the time of the initial rebuilding resolution, it is reasonable to deem that the provisions of Article 20 (3) and 15 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7392 of March 18, 2005) to protect the interests of union members by applying mutatis mutandis the provisions of Article 20 (1) and 15 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7392 of March 18, 2005) to the "matters to be included in the original rebuilding agreement" which substantially affect the interests of association members, it is difficult to recognize that the provisions of the articles of association of the reconstruction association can be resolved with the consent of more than 2/3 of association members through a strict resolution of rebuilding.

[1] Articles 16(2) (see current Article 16(2)), 20(1) (see current Article 20(1)), and 48(1) (see current Article 48(1)) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 7392, Mar. 18, 2005); Article 31 subparag. 10 (see current Article 31 subparag. 10); Article 49 subparag. 4 (see current Article 49 subparag. 4) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 7392, Mar. 18, 2005); Article 16(2) (see current Article 16(2) (see current Article 16(2)); Article 48(1) (see current Article 48(1)); Article 31 subparag. 10 (10) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Residents;

[2] Supreme Court Decision 91Da29026 delivered on November 24, 1992 (Gong1993Sang, 212)

Plaintiff 1 and one other (Law Firm U.S. Law, Attorneys Jeon Jong-sung et al., Counsel for plaintiff-appellant)

Defendant Reconstruction and Rearrangement Project Association (Law Firm Geosung, Attorneys Kang Sung-sung et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2006Na34338 decided April 11, 2007

The part of the judgment of the court below against the plaintiffs regarding the "case of resolution on construction contract" on the agenda No. 3 of the general meeting of February 5, 2005 is reversed, and that part of the case is remanded to the court below.

The grounds of appeal are examined.

1. Matters concerning the estimated amount of expenses for removal and new construction of a building to be determined at the stage of establishment of a reconstruction association and the apportionment of expenses are criteria for the landowners, etc. to choose whether to participate in reconstruction while bearing considerable expenses, whether to sell sectional ownership, etc., and not to participate in reconstruction according to the market price. In the event that, at the time of resolution for reconstruction, a resolution is adopted to adopt the project plan presented by the person selected as a contractor in relation to the cost-bearing of the association members, as contents of the resolution for reconstruction, matters concerning the apportionment of expenses for removal and new construction of the building presented in the relevant project plan are the contents of the resolution for reconstruction. Thus, if the reconstruction association, after concluding a contract with the contractor in a regular manner, modifies matters concerning the apportionment of expenses that the construction company proposed at the time of the initial resolution for reconstruction in excess of the ordinary estimated scope due to price fluctuations, etc., it shall be deemed that the modification of the resolution for reconstruction regarding the cost-bearing. This does not change even if the increase in expenses was inevitable due to the modification or other unexpected situation

원심판결 이유와 기록에 의하면, 피고 조합이 2001. 11. 10. 창립총회를 개최하기 전에 조합원들로부터 받은 원래의 재건축동의서와 창립총회 회의자료에는 평당 개발이익(무상지분 권리금액) 약 20,313,000원과 구체적인 공사비 산출내역 및 평형별 분양대금 등이 구체적으로 적시되어 있었는데, 피고 조합은 창립총회 개최 당일 총회장에서 조합원들에게 위와 같은 비용분담에 관한 사항이 기재되지 아니한 새로운 재건축동의서를 다시 교부하면서 “이미 재건축동의서를 받기는 하였으나, 오늘 총회에서 선정되는 시공사가 제시하는 더 좋은 사업참여 조건에 따라 비용분담 사항을 변경하고 이를 반영하는 새로운 재건축동의서를 유효한 것으로 하겠다”는 취지를 설명하였고 이에 따라 재건축결의안이 가결된 사실, 그 직후 총회장에서 진행된 시공사 선정 단계에서는, 소외 주식회사가 ‘사업참여제안서’를 통하여 확정지분제 방식으로 공사를 진행하되 조합원의 무상지분 권리금액을 평당 약 2,368만 원으로, 평균 무상지분율을 171.84%로 각 제시하고 평형별 예상분양가와 평당분양가를 각 제시함과 아울러 조합원들에게 우선분양하고 남은 아파트 잔여세대를 일반분양할 때 실제 일반분양금 총액이 당초의 예상 일반분양금(일응 조합원 분양가에 부가가치세액을 더한 금액) 총액보다 10% 이상 초과하는 경우에는 그 10% 이상 초과분을 조합원들의 수익으로 하여 환급한다는 조건을 제시하여 다른 두 경쟁 회사를 제치고 총회결의에서 시공사로 선정된 사실, 그 후 피고 조합이 조합설립인가신청을 위하여 서초구청에 제출한 재건축동의서에는 창립총회 전에 조합원들로부터 받은 최초의 재건축동의서에 적시된 구체적인 제공사비 산출내역, 예상개발이익(평당 20,313,000원), 평형별 분양대금 등이 모두 삭제된 채, “사업추진방식은 확정지분제 방식으로 한다. 확정지분제 방식으로 사업을 추진하기로 결정한 경우의 비용분담 : 시공사 선정시 시공사가 제시하는 조합원 권리지분(무상지분) 금액과 분양평형별 부담금액에 따른다”는 내용과 “예상사업비는 시공사의 선정 및 계약에 따라 변경될 수 있으며, 입주시 확정됨”이라는 내용만이 기재되어 있는 사실, 그 후 피고 조합은 2002. 9. 6. 소외 주식회사와 사이에 조합원 분양분을 제외한 아파트 잔여세대의 일반분양가는 일응 조합원 분양가에 부가가치세액을 더한 금액으로 하되 장차 일반분양가가 상승하여 일반분양금 총액이 당초보다 10% 이상 초과하는 경우에는 그 10% 이상 초과분(차액)을 조합원들에게 환급하기로 하고, 조합원들의 권리가액은 평당 약 2,368만 원으로 하며, 조합원들의 권리가액, 조합원 분양아파트의 분양가 및 분양가 총액은 변동 없이 확정하기로 하는 확정지분제 방식으로 도급공사를 시행하기로 하여 공사도급가계약을 체결한 사실, 그런데 소외 주식회사는 그 후 피고와의 본계약 협상과정에서 정부의 정책변경 등으로 최소 2,000억 원의 추가비용발생요인이 생겼음을 주장하면서 이를 전액 인정하여 줄 것을 요구하였고, 이에 피고 조합은 향후 일반분양가 상승에 따른 10% 이상 초과분에 대한 배분을 조합원들이 받지 않는 대신에 시공사가 추가 발생비용을 포함한 모든 사업비용을 부담하는 것으로 하고 부족시에도 시공사가 모든 책임을 지기로 하여 사업을 진행하기로 하되, 일반분양의 분양가가 25평형의 경우 평당 1,700만 원(조합원 분양가는 1,130만 원), 35평형의 경우 평당 1,800만 원(조합원 분양가는 1,135만 원)으로 각 증가되는 것으로 계산하여 총 사업수입금액을 2,328,770,260,000원으로 하고, 이 금액에서 지출예상액(공사비 및 조합사업비 예상액 955,959,388,000원)을 공제하여 개발이익을 산출하고, 각 조합원의 무상지분 권리금액을 약 24,526,000원으로 책정하며, 당초 소외 주식회사가 시공사 선정단계에서 사업참여조건으로 제시한 평형과 동일·유사한 평형의 아파트에 대한 조합원 예상분양가와 평당분양가는 그 사업참여조건이나 공사도급가계약 상의 그것에서 약간의 증감 변동이 있되 별다른 차이가 없는 가격으로 정하여 시공사 본계약안을 마련한 사실, 피고 조합의 2004. 1. 15.자 소식지에는 “일반분양가가 계속 상승하고 있고 후분양을 실시하는 2008년에 이르러서는 계속 분양가가 상승할 것이다. 일반분양가 10% 초과 상승시 조합원 배분 약정은 지켜져야 한다”는 내용이 게재된 사실, 피고 조합은 2005. 2. 5.자 관리처분총회에서 위와 같은 시공사 본계약안의 내용이 담겨진 제3호 안건인 ‘시공사 계약서 결의 건’을 상정하였고, 투표결과 재적 조합원 2,516명 중 찬성 1,378명, 반대 770명, 무효 1명, 기권 56명으로 집계된 사실을 알 수 있다.

In light of the above facts, the members of the defendant association decided to adopt the "determined Share System" which will not transfer the burden to the members of the association even if the project cost was increased ex post. Since the non-party corporation voluntarily presented the fixed share system as one of the terms and conditions of business participation in the contract for construction works, even if the project cost was inevitably increased after the lapse of the initial period after the rebuilding resolution, it constitutes a change in the rebuilding resolution that actually increases the burden of the members of the association by concluding a contract that imposes project cost on the members of the association even if the project cost was inevitably increased, unlike the originally anticipated share after the lapse of the period of time after the rebuilding resolution. In particular, if the proceeds from the rebuilding of a general apartment exceed 10%, the condition that all the members of the association should allocate the excess amount is the important content of the rebuilding resolution, and it is difficult to view the non-party corporation as being entitled to refund the excess amount of 10% of the initial rebuilding agreement or to bear the expenses for the use of the rebuilding agreement at the time of the initial increase in the rebuilding project cost.

Nevertheless, the court below determined, based on its stated reasoning, that the draft of the construction contract of this case shall bear all the increased project costs in return for the waiver of the estimated sales revenue of the general apartment unit in excess of 10%, and that the resolution on the "case of the construction contract resolution", which is an agenda item of the general meeting of February 5, 2005, cannot be deemed as a substantial alteration of the rebuilding resolution concerning the cost sharing, unless the draft of the construction contract of this case stipulates that the construction project of this case shall bear all the increased project costs in return for the waiver of the estimated sales revenue of the general apartment unit in excess of 10%, and that the amount of free shares of the union members raised to approximately KRW 24,526,00 per square year from 20,313,000 per square year. The ground of appeal pointing this out is with merit.

2. The articles of incorporation of a corporation and the detailed regulations for its business activities shall be deemed valid unless there are special circumstances. However, the same shall not apply to the cases where the decision-making procedure significantly loses validity due to social norms such as violating good morals and other social order, or where it is deemed that the decision-making procedure significantly violates the justice (see, e.g., Supreme Court Decisions 91Da29026, Nov. 24, 1992; 2006Ma635, Jul. 24, 2007).

Article 2 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7392, Mar. 18, 2005; hereinafter referred to as the “former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”) provides that the articles of association of a reconstruction association under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7392, Apr. 1, 2005) shall govern association members’ legal relations, such as the formation of reconstruction association association, activities, rights and obligations of association members, and shall not be permitted as a matter of principle, and the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 1836, Mar. 8, 2005; hereinafter referred to as the “former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”) shall stipulate that the contents of the new Act on the improvement of the articles of association shall be included in the new Act on the improvement of the articles of association.

According to the reasoning of the judgment below and the records, Article 18 of the articles of incorporation of the defendant cooperative provides that "i.e., matters concerning changes in the rights and obligations of union members or the amendment and repeal of the articles of association accompanying the burden on union members," "matters concerning the decision and modification of the project implementation plan", "matters concerning the formulation and modification of the management and disposal plan; iii. matters concerning the selection of the execution company and its agreement and matters concerning the project implementation entrustment agreement", etc., and Article 19 (1) of the articles of incorporation of the defendant cooperative provides that "a general meeting shall be held by the attendance of a majority of union members, and a resolution shall be made with the consent of a majority of union members present," and Article 19 (2) of the articles of incorporation of the defendant cooperative provides that "Notwithstanding the provisions of paragraph (1), matters concerning Article 18 subparagraph 1 of the same Article shall be

In light of the above legal principles and facts, it is reasonable to view that the articles of incorporation of the defendant association presented that the majority of union members registered under Article 18 subparagraph 6 and Article 19 (1) of the articles of incorporation of the defendant association may constitute a quorum, and the "matters concerning the selection of the construction company and its agreement" that can be resolved with the consent of a majority of union members present, may be resolved with the consent of a majority of union members present at the meeting, under the premise that the contents of the main contract of the construction project may not substantially change the matters concerning the apportionment of expenses prescribed in the initial rebuilding resolution. Since the "case of resolution on the construction project", which is an agenda item 3 of the general meeting of February 5, 2005, intends to actually change the matters concerning the apportionment of expenses prescribed in the original rebuilding resolution, the quorum of the above articles of association cannot be applied to the above resolution. Since the above resolution on the rebuilding resolution cannot be seen to have been included in the agreement with the construction association members at least 25 percent of the total amount of expenses to be included in the above 10-5th of the resolution.

Nevertheless, the court below rejected the plaintiffs' assertion that the above resolution on the agenda was null and void because the "case of the resolution on the construction contract", which is the agenda item No. 3, did not substantially alter the rebuilding resolution, was approved by the members meeting the quorum stipulated in Articles 18 subparagraph 6 and 19 (1) of the articles of incorporation of the defendant association. In this case, the court below erred by misapprehending the legal principles on the quorum of the resolution on the rebuilding association's general meeting, which affected the conclusion of the judgment. The ground of appeal pointing this out is with merit.

3. Therefore, the part of the judgment of the court below against the plaintiffs regarding the "resolution on the construction contract" of the general meeting No. 3 of February 5, 2005 is reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)