In a housing redevelopment project, whether the association, which is a project implementer, can impose and collect dues under Article 61 (1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents by satisfying the requirements prescribed by the articles of association of the association under Article 47 of the same Act on the members who become the project implementer.

According to Articles 19(1), 60(1), 61(3), and 47 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”), and Article 48 of the Enforcement Decree of the same Act and Article 48 of the same Act, a housing redevelopment project implementer may impose and collect the difference between the income accrued in the course of implementing the rearrangement project and the rearrangement project under Article 61(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; hereinafter “former Act”). However, if a partner becomes a person subject to cash liquidation upon meeting the requirements prescribed by the articles of association of the former Act, it is reasonable to impose and collect dues under Article 61(1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, and a cooperative may seek the refund of the portion of the association’s members before the cash liquidation project is lost.

Articles 19(1), 47, 60(1), and 61(1) and (3) 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 48 of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents;

Plaintiff 1 and two others (Law Firm Park & Park, Attorneys Park Dong-young et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 201Na1448 delivered on May 2, 2012

Seoul High Court Decision 2012Nu37472 decided August 16, 2013

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Article 19(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; hereinafter “former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”) provides that “A member of a rearrangement project (excluding a housing reconstruction project implemented by the head of a Si/Gun or the Housing Corporation, etc.) shall be the owner of a plot of land, etc. (in cases of a housing reconstruction project, limited to the person who has consented to the housing reconstruction project), but when any of the following is applicable, one member representing such person shall be deemed as a member.” Article 60(1) provides that “The cost of the rearrangement project shall be borne by the project implementer, except as otherwise provided for in this Act or other Acts and subordinate statutes.” Article 61(1) provides that “A project implementer may impose and collect the difference of revenues accrued in the course of implementing the rearrangement project under Article 60(1) from the owner of a plot of land, etc. as a charge.” Article 61(3) provides that “.

In addition, Article 47 of the former Act provides that "If the owners of land, etc. fall under any of the following subparagraphs, the project implementer shall liquidate the land, buildings or other rights in cash according to the procedures prescribed by Presidential Decree within 150 days from the date of falling under the following subparagraphs. 1. A person who fails to apply for parcelling-out; 2. A person who has withdrawn the application for parcelling-out; 3. A person excluded from the objects of parcelling-out in accordance with the management and disposal plan approved under Article 48." Article 48 of the Enforcement Decree of the same Act provides that "where the project implementer liquidates the land, buildings or other rights of the owners of land, etc. under Article 47 of the Act in cash, the liquidation amount may be calculated through consultation between the project implementer and the owners of land, etc.. In such cases, the amount calculated by taking an arithmetic mean of the values appraised by at least two appraisal

Meanwhile, a partner who becomes subject to cash settlement by failing to apply for parcelling-out or withdrawing an application for parcelling-out, etc. falls under the requirements prescribed in Article 47 of the former Act and the articles of association of an association (see, e.g., Supreme Court Decision 2009Da81203, Aug. 19, 2010). The legal relationship between a cooperative and its members under the former Act is governed by the relevant statutes or the articles of association, a resolution of a general meeting of partners or an agreement between a cooperative and its members, and unless otherwise expressly provided for in the relevant regulations, it does not necessarily have an obligation to return the benefits acquired in the capacity of its members retroactively even if a member loses his/her status as a cooperative member (see, e.g., Supreme Court Decision 2009Da32850, 32867, Sept. 10, 209).

According to the contents, form, system, etc. of the former Act and the Enforcement Decree of the same Act, in a housing redevelopment project, a cooperative, which is a project implementer, may impose and collect the difference between the income accrued in the course of implementing the rearrangement project and the rearrangement project pursuant to Article 61(1) of the former Act from its members, who are the owners of land, etc., but it is reasonable to view that a cooperative may seek the refund of the difference between the income accrued in the course of implementing the rearrangement project under Article 47(2) of the former Act and the income accrued in the course of implementing the rearrangement project. However, in cases where a cooperative member becomes a person subject to cash liquidation upon meeting the requirements prescribed by the articles of association of the cooperative under Article 47(2) of the former Act, the cooperative is no longer entitled to impose and collect dues under Article 61(1) of the former Act on the person subject to cash settlement, as it is no longer entitled to impose and collect surcharges under Article 61(1) of the former Act from its members

2. The lower court rejected the Defendant’s defense of setting-off on the ground that the Defendant could not seek reimbursement for the rearrangement project cost incurred by the consultation sale date from the Plaintiffs on the following grounds: (a) although Article 10(1)6 of the Defendant’s Articles of incorporation provides that members are liable for the payment of the cost of rearrangement project, the provision that the person subject to cash settlement bears the cost of rearrangement project incurred before he/she loses his/her membership’s membership,

In light of the above legal principles and records, the above determination by the court below is just, and contrary to what is alleged in the grounds of appeal, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)