Standard time to determine the quorum for authorization to establish redevelopment cooperatives under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (=at the time of applying for authorization to establish redevelopment cooperatives

The purport of Article 28(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. 11293, Feb. 1, 2012) requires the consent of the owner of a plot of land, etc. in writing, and submission of written consent to an administrative agency at the time of applying for authorization to establish a redevelopment association is to prevent disputes between the owners of a plot of land, etc. and related persons who may incur consent by clarifying their consent in writing and allowing the administrative agency to examine whether consent requirements are met only by the consent submitted at the time of applying for authorization to establish a redevelopment association. In light of Article 28(4) 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. 2407, Jul. 31, 2012), the owner of a plot of land, etc. may either withdraw the consent before the application for authorization to establish an association, or at any time after the date of application for authorization to establish an association, it is difficult to determine the number of land.

Articles 16(1) and (5) and 17(1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 11293, Feb. 1, 2012); Article 28(4) 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. 24007, Jul. 31, 2012); Article 7(1) of the Enforcement Rule of the Act on the Maintenance and Improvement

Plaintiff 1 and four others (Law Firm Cheongan, Attorneys Gyeong-soo et al., Counsel for the plaintiff-appellant)

The head of Seongbuk-gu Seoul Metropolitan Government

1st City Housing Redevelopment and Improvement Project Association (Law Firm LLC et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2011Nu37024 decided August 24, 2012

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

According to Article 16(1) and (5) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 11293, Feb. 1, 2012; hereinafter “former Act”), in order for a redevelopment project promotion committee to establish an association, at least 3/4 of the owners of a plot of land, etc. and at least 1/2 of the size of land shall obtain authorization from the competent administrative agency with the consent of the owners of the plot of land, etc., by attaching the articles of association and the documents prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs. Therefore, the administrative agency, upon receipt of an application for authorization to establish a redevelopment association, shall

On the other hand, the consent shall be made by means of written consent using a seal imprint, accompanied by a certificate of seal impression (Article 17(1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents), and the committee for the promotion of a rearrangement project shall submit to the competent administrative agency an application for authorization for the establishment of the redevelopment association along with a list of members and a written consent of the owners of the land, etc.,

As above, Article 28(4) 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. 24007, Jul. 31, 2012) provides that the owner of a plot of land, etc. may withdraw consent before applying for authorization or express opposition to the establishment of redevelopment association, and the consent shall be submitted to the competent administrative agency when applying for authorization to establish redevelopment association by clarifying the consent of the owner of a plot of land, etc. to prevent disputes between the parties concerned who may arise regarding the consent in advance, and further, the administrative agency may decide whether to approve the consent by examining whether the consent requirements are met only by the consent submitted at the time of applying for authorization to establish redevelopment association. In light of the above purport, it is to ensure that a dispute over the consent can be withdrawn before applying for authorization to establish redevelopment association, and that it is difficult to determine whether there is a large-scale rate of consent after the date of applying for authorization to establish the redevelopment association at any time after the date of application for authorization to establish the redevelopment association can be determined based on the number of land and the disposal.

Based on its stated reasoning, it was reasonable to calculate the consent rate based on the time of disposition (the date of authorization for establishment), the lower court determined that at least 3/4 of the owners of a plot of land, etc. as stipulated in Article 16(1) of the former Act was satisfied in this case, by considering that the number of owners of a plot of land, etc. increased by 28 persons from the time of application for authorization for establishment of redevelopment association to the time of disposition, and that 25 persons among them consented to

However, according to the above legal principles, since the base point of time for calculating the consent rate is the time of applying for authorization to establish redevelopment association, it shall not be included in the quorum for calculating the above consent rate. In this case, there is a high room to view that the person who became the owner of land, etc. after applying for authorization did not meet the requirements for consent of at least 3/4 of the owners of land, etc. as stipulated in Article 16(1) of the former Act

Nevertheless, the lower court determined that the person who acquired ownership after filing an application for authorization to establish redevelopment association as above was included in the owners of land, etc. under Article 16(1) of the former Act, thereby obtaining consent from more than 3/4 of the owners of land, etc.

2. Regarding ground of appeal No. 2

After finding facts as stated in its holding, the lower court determined that: (a) Nonparty 1 cannot be included in the owners of land, etc. because it falls under a person whose whereabouts are unknown pursuant to Article 28(1)4 of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents; (b) Nonparty 2 was included in the consenters since it submitted written consent after obtaining the consent of the representative owner from Nonparty 3; and (c) Nonparty 4 and 5, a foreigner, stayed in the Republic of Korea on the date of issuing a certificate of seal imprint; and (d) provided the certificate of seal imprint issued by him

In light of the relevant legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to calculation of the number of landowners or consenters under Article 16 (1) of the former Act as alleged in the grounds of appeal.

3. Regarding ground of appeal No. 3

Article 77-4 (1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents provides that "the head of a Si/Gun may support a project implementation process (public management) for a rearrangement project prescribed by municipal ordinance of a City/Do to enhance transparency and efficiency of a rearrangement project; however, the above provision was newly established on April 15, 2010 and enforced as Ordinance No. 5007 from July 15, 2010 after the disposition of this case; the Seoul Special Metropolitan City Ordinance on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents was not amended at the time of the disposition of this case; the public management system was not implemented before the enforcement of the public management system; therefore, it is difficult for owners of land, etc. to deem that the public management system was applied to any impact on the owners of land, etc. by applying the public management system as above, on the sole basis that the promotion committee of this case was informed as above, it cannot be deemed that the owners of land, etc. failed to implement the rearrangement project by mistake or fraud and that consent to establish an association cannot be effective.

In light of the relevant legal principles and records, the above judgment of the court below is just, and there is no violation of the rules of evidence as alleged in the grounds of appeal.

4. Conclusion

Therefore, the judgment of the court below is reversed, and 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 Lee In-bok (Presiding Justice)