[1] In a case where a consultation on the amount of liquidation between a housing redevelopment and a housing redevelopment and improvement project association and a person subject to cash liquidation under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents is not concluded, whether a cooperative can expropriate land, etc. of a person subject to cash liquidation under the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (affirmative);

[2] Where a housing redevelopment and rearrangement project association newly obtains authorization for the establishment of a new association under the same conditions and procedures as the authorization for the establishment of a new association, and the previous authorization for the establishment of a new association is invalidated or revoked, whether the association should obtain authorization (affirmative); and where the association establishes a management and disposal plan according to the current status of the previous application for parcelling-out, whether the management and disposal plan is unlawful (affirmative)

[3] The articles of association or management and disposition plan of the Housing Redevelopment Project Association established under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents ("the Housing Redevelopment Project Association shall enter into a sales contract within a certain period after the expiration of the period of the sales application" and the purport and meaning of "the rights shall be liquidated in cash if

[1] According to Articles 38, 40(1), and 47 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 12116, Dec. 24, 2013; hereinafter “Urban Improvement Act”), Article 48 of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, and Article 67(1) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation for Land, etc. for Public Works (hereinafter “Land Compensation Act”), liquidation money for a person subject to cash liquidation in a housing redevelopment project under the Urban Improvement Act shall be determined by consultation between the Housing Redevelopment and Improvement Project Association (hereinafter “Union”), but if consultation fails to reach an agreement, the Cooperative may acquire ownership of land, etc. subject to cash liquidation through a land expropriation committee’s decision pursuant to the Land Compensation Act. However, given that the Urban Improvement Act does not have a provision on the base date for calculating the price of expropriation compensation, compensation money for land, etc. shall be calculated based on the date of expropriation under Article 67(1).

[2] Where a housing redevelopment and rearrangement project association (hereinafter “association”) has obtained authorization for the establishment of a new association under the same conditions and procedures as a disposition for authorization for the establishment of a new association under the circumstance that a lawsuit seeking confirmation of invalidity or revocation of the previous disposition for authorization for the establishment of a partnership is pending, etc., the authorization for the establishment of a new association is effective. However, where the previous disposition for authorization for the establishment of a partnership is invalidated or revoked as a matter of course, the previous disposition for authorization for the establishment of a new association shall lose its validity retroactively. Therefore, the association may not implement an improvement project under the previous management and disposal plan formulated and authorized before obtaining authorization for the establishment of a partnership, and the association shall newly establish and obtain authorization according to the requirements and procedures prescribed by the Ordinance on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 12116, Dec. 24, 2013). In such case, the association shall undergo a new procedure for notification and announcement of application for subdivision, etc., or establish the status of the applicants for parcelling-out without following examination.

However, in exceptional cases where it is deemed that a management and disposal plan was formulated based on the current status of the application for parcelling-out by the owners of land, etc. at the time of establishing a new management and disposal plan, that is, there is no substantial change between a new project implementation plan and a previous project implementation plan concerning the matters to be included in the notification of application for parcelling-out, such as “the details of a site or structure subject to parcelling-out” and “the details of an outlined contribution,” and in light of the nature and scale of the project, etc. of the two project, the time interval between the approval date of the two project implementation plan is not too large, among the applicants for parcelling-out, and there is no person who has expressed his/her intent to

[3] In a case where the articles of association or management and disposal plan of the Housing Redevelopment and Improvement Act (amended by Act No. 12116, Dec. 24, 2013) established under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “association”) requires the association members to enter into a contract for sale within a certain period after the expiration of the period for the application for sale, which provides that “if the contract for sale is not concluded within such period, the right shall be liquidated in cash.” This is an additional opportunity for the association members to leave the business by refusing to enter into the contract for sale within the pertinent period. The articles of association or management and disposal plan stipulated as above is that the association shall be subject to settlement in cash by violating its obligation to enter into the contract for sale, even if the association demands the association members

[1] Articles 38, 40(1), and 47 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 12116, Dec. 24, 2013); Article 48 of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents; Articles 3 and 67(1) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor / [2] Articles 16, 46(1), and 48 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 12116, Dec. 24, 2013); Article 47 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 12116, Dec. 24, 2013)

[1] Supreme Court Decision 2006Du2954 Decided March 13, 2008 / [2] Supreme Court Decision 2011Du21010 Decided December 13, 2012 (Gong2013Sang, 169), Supreme Court Decision 201Du19680 Decided December 27, 2012, Supreme Court Decision 201Du27094 Decided May 16, 201 / [3] Supreme Court Decision 2008Da91364 Decided July 28, 201 (Gong201Ha, 1717), Supreme Court Decision 201Da71141 Decided May 9, 2013Da131320 Decided July 13, 2013

Attached 1 List of Plaintiffs (Law Firm LLC et al., Counsel for the plaintiff-appellant)

Local Land Tribunal in Seoul Special Metropolitan City

Freeboard 4 Housing Redevelopment and Improvement Project Association (Attorney Dog-ho et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2015Nu38155 decided August 13, 2015

Of the judgment of the court below, the part against the plaintiffs in attached Form 1 and the part against the defendant local Land Tribunal of Seoul Special Metropolitan City against the plaintiffs in attached Form 2 (2) are reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeal by the defendant local Land Tribunal of Seoul Special Metropolitan City is dismissed. The costs of appeal between the plaintiffs in attached Form 2 (3) and the defendant local Land Tribunal of Seoul Special Metropolitan City are

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Judgment on the grounds of appeal by the plaintiffs in attached Form 2 (1)

Article 47 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 12116, Dec. 24, 2013; hereinafter “Urban Improvement Act”) and Article 48 of the Enforcement Decree of the same Act shall be liquidated in cash for a person subject to cash settlement within 150 days from the date he/she falls under the said Act, but the liquidation amount shall be calculated through consultation between the project implementer and the person subject to cash settlement; however, there is no separate provision on cases where consultation on the liquidation amount has not been reached (the current Act also provides the same provision and the same period differently), and Articles 38 and 40(1) of the same Act shall apply mutatis mutandis to cases where necessary to implement a rearrangement project within a rearrangement zone, the project implementer may expropriate or use land, goods or other rights under Article 3 of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor at the time of the adjudication on the expropriation or use of land under this Act, except for such cases.

According to the above provisions, the liquidation money for the persons subject to cash liquidation in the housing redevelopment project under the Urban Improvement Act shall be determined by the consultation between the housing redevelopment project association (hereinafter “association”) and the persons subject to cash liquidation, but if the consultation is not concluded, the association may acquire ownership of the land, etc. subject to cash liquidation by the adjudication of the Land Tribunal pursuant to the Land Compensation Act (see Supreme Court Decision 2006Du2954, Mar. 13, 2008). However, since the Urban Improvement Act does not have any provision on the base date for the calculation of the price of the expropriation compensation, the compensation for the expropriation of the land, etc. of the persons subject to cash liquidation shall be calculated based on the price on the date of the adjudication on expropriation of the land, etc. pursuant to Article 67(1)

Nevertheless, the lower court determined that the amount of compensation for acceptance of the Plaintiffs as stated in attached Table 2(1) should be calculated on the basis of the date following the end of the period of conclusion of the sales contract, not on acceptance ruling. In so determining, the lower court erred by misapprehending the legal doctrine on the base date for calculation of the price of compensation for cash liquidation

2. Determination on the first ground for appeal by Defendant Local Land Tribunal of Seoul Special Metropolitan City

The argument in the grounds of appeal by the defendant local Land Tribunal of Seoul Special Metropolitan City (hereinafter “Defendant Land Tribunal”) that the judgment of the court below contradicts res judicata of the previous final and conclusive judgment does not constitute a legitimate ground of appeal, as it is alleged that the above defendant was only at the time of the final and conclusive appeal. In addition, the judgment of the court below

3. Determination on the grounds of appeal Nos. 2 and 3 of the Defendant Expropriation Committee

A. As to the plaintiffs in attached Form 2 (2) of the list of plaintiffs

1) The lower court acknowledged the following facts.

A) Defendant Asia-do Housing Redevelopment and Improvement Project Association (hereinafter “Defendant Association”) established with the approval of establishment on November 29, 2006, established with the approval of establishment of the association on November 29, 2006, shall establish a project implementation plan and obtain the approval on September 3, 2007, and received the application for parcelling-out from the land owners from September 2007 to October 2 of the same year.

B) On May 20, 201, when part of the owners of the land, etc. filed a lawsuit seeking confirmation of invalidity of the disposition approving the establishment of a partnership, the Defendant Mutual Association received the disposition for authorization to alter the establishment of a partnership on May 20, 201 (hereinafter “instant disposition for authorization to alter the establishment of a partnership”).

C) After that, the Defendant Union established a project implementation plan and authorized on June 17, 201, and followed the procedures for public announcement and notification of application for parcelling-out to its members, or without individually verifying their intent to apply for parcelling-out, and established a management and disposition plan based on the current status of application for parcelling-out in 2007 (hereinafter “instant management and disposition plan”), and obtained authorization on August 26, 201.

D) The instant management and disposal plan is assessed based on September 3, 2007, which was the date of authorization for the first project implementation plan, which was not June 17, 201, which was the date of authorization for the first project implementation plan after the instant disposition to approve the establishment of the association was issued.

2) Based on these facts, the lower court determined as follows.

A) The Defendant’s association’s establishment of the instant management and disposition plan constitutes an important and apparent defect that received new applications for parcelling-out from its members or did not confirm their intent to apply for parcelling-out, and that assessed the price of the previous assets by the object of parcelling-out based on the authorization date of the initial project implementation plan, which is null and void as a matter of course.

B) Even if the Plaintiffs listed in attached Table 2(2) did not conclude a contract for sale in lots with the Defendant during the period from August 6, 2012 to August 20, 2012, the instant management and disposal plan, which serves as the premise for the contract for sale in lots, is null and void, the said Plaintiffs do not constitute the “person who did not conclude the contract for sale in lots by the end of the period for the contract for sale in lots” (hereinafter “person subject to settlement in cash due to the failure to execute the contract for sale in lots”) stipulated by the articles of incorporation as the grounds for becoming the object of cash settlement. Therefore, the instant expropriation ruling that accepted

C) Since the Defendant Union received the authorization for change of the establishment of the instant association and did not re-rown the number of apartment buildings to be sold to its members, the number of buildings and units to be sold to its members is not specified. Therefore, the said Plaintiffs, which withheld the conclusion of the sales contract on the grounds thereof, cannot be deemed to be subject to cash settlement following the conclusion of the sales contract, and thus, the instant expropriation ruling is unlawful in this respect

3) However, it is difficult to accept such determination by the lower court for the following reasons.

A) Article 46(1) of the Urban Improvement Act and Article 47(1) of the Enforcement Decree of the same Act provide that a project implementer shall notify the owners of land, etc. of the period for application for parcelling-out, details of sites or structures subject to parcelling-out, details of estimated charges, etc. after obtaining approval of a project implementation plan, and publicly notify the project implementer thereof in a daily newspaper. Article 48(1) of the same Act provides that when the period for application for parcelling-out under Article 46 expires, the project implementer shall establish a management and disposal plan based on

Where an association obtains authorization for the establishment of a new association under the same conditions and procedures as the authorization for the establishment of a new association under the circumstance that a lawsuit seeking confirmation of invalidity or revocation of the previous disposition of authorization for the establishment of a new association is pending, the authorization for the establishment of a new association is effective as a disposition for the authorization for the establishment of a new association. However, where the previous disposition for the establishment of a new association is invalidated or revoked, the management and disposal plan formulated and approved under the premise that the previous disposition for the establishment of an association is valid shall retroactively lose its validity (see, e.g., Supreme Court Decisions 2011Du2100, Dec. 13, 2012; 201Du19680, Dec. 27, 2012; 2011Du27094, May 16, 2014). Therefore, the association may not implement an improvement project under the previous management and disposal plan formulated and approved prior to obtaining authorization for the establishment of an association, and the association should establish the status of the applicants for parcelling-out under the previous management and disposal plan.

However, in exceptional cases where it is deemed that a management and disposal plan was formulated based on the current status of application for parcelling-out by the owners of land, etc. at the time of establishing a new management and disposal plan, namely, ① there is no substantial change between a new project implementation plan and a previous project implementation plan concerning the matters to be included in the notification of application for parcelling-out, such as “the details of a site or structure subject to parcelling-out” and “the details of an outlined contribution,” and ② there is no excessive gap between the approval date of a two project implementation plan in light of the nature and size of the project, etc., and ③ there is no one who has expressed his/her intent to withdraw or modify the previous application for parcelling-out or to newly apply for parcelling-out

B) According to the evidence duly admitted by the lower court, the project implementation plan approved on September 3, 2007 and the project implementation plan approved on June 17, 201 shall be 9,742.72 square meters from the building area of 166,113.04 square meters, the total building area shall be 167,621.81 square meters from 166,113.04 square meters, the building-to-land ratio shall be 20.78% from 20.78% to 21.15%, the floor area ratio shall be 228.71% from 229.9% from the 271st generation to 285 households from the 271st generation, and it is difficult to view that there was no significant difference between the redevelopment project implementer and the redevelopment project developer’s association’s opinion to withdraw or modify the application for parcelling-out in the previous procedure, or there was no specific progress in the redevelopment project.

In addition, Article 48 (1) 4 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for inclusion in the management and disposal plan after evaluating the previous asset price by subject to parcelling-out is basically to determine the relative investment ratio among union members, so if the same evaluation base date is applied to all union members, the land price at any time does not affect the rights relationship of union members. Therefore, even if the defendant union erred in the evaluation base date of the previous asset price, it cannot be deemed that the defect is serious, and it cannot be concluded that the management and disposal plan in this case is null and void as a matter of course. Furthermore, if the management and disposal plan in this case, which specifies the number of units and units allocated to the subject to parcelling-out, cannot be deemed null and void for the above reasons, it cannot be deemed that the defendant

Ultimately, even if considering all the circumstances cited by the lower court, there is sufficient room to view that the above Plaintiffs are still subject to cash settlement following the conclusion of the sales contract.

4) Nevertheless, the lower court determined that the part against the above Plaintiffs of the instant acceptance ruling was unlawful because the Plaintiffs listed in attached Table 2(2) did not constitute the subject of cash settlement following the failure to conclude the sales contract. In so determining, the lower court erred by misapprehending the legal doctrine on the application for parcelling-out, the base date of previous asset prices, and the validity of the management and disposal plan, thereby failing to exhaust

B. As to the plaintiffs listed in paragraph (3) of the attached list of plaintiffs 2

1) In the articles of incorporation or management and disposal plan of a partnership established under the Urban Improvement Act, where the partnership demanded that it enter into a contract for sale in cash for its members within a certain period after the expiration of the period for the application for sale in lots, and the partnership stipulates that “if the contract for sale in lots is not concluded within the said period, its rights shall be liquidated in cash,” this additional opportunity is granted to the owner of the land, etc. that was a member of the partnership, etc., to leave the business by refusing to conclude the contract for sale in lots during the pertinent period (see Supreme Court Decision 2008Da91364, Jul. 28, 2011). The articles of incorporation or management and disposal plan stipulating the above contents means that the partnership shall be subject to cash settlement in violation of its obligation to conclude the contract for sale in lots even if it demands its members to conclude the contract for sale in lots (see, e.g., Supreme Court Decisions 2010Da71141, May 9, 2012; 2013Da13023

2) The lower court acknowledged that the Defendant Union did not notify the Plaintiffs listed in Paragraph (3) of the Plaintiff’s List 2 that it would conclude a sales contract from August 6, 2012 to August 20, 2012 to its members, and determined that the said Plaintiffs do not constitute a person subject to cash settlement due to the failure to conclude a sales contract, unless the said Plaintiffs did not conclude a sales contract on the grounds that they did not receive the notification of the conclusion of the sales contract. The lower court’s determination is justifiable. In so determining, it did not err by misapprehending the legal doctrine on the objects of cash settlement, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

Therefore, among the part of the judgment of the court below against the plaintiffs in paragraph (1) of the attached Table 2 and the part against the defendant confinement committee, the part against the plaintiffs in paragraph (2) of the attached Table 2 is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeal by the defendant confinement committee is dismissed, and the costs of appeal between the plaintiffs in paragraph (3) of the attached Table 2 and the defendant confinement committee are assessed against the above defendant. It is so decided as per Disposition by

[Attachment 1] List of Plaintiffs: Omitted

[Attachment 2] List of Plaintiffs: Omitted

Justices Park Poe-young (Presiding Justice)