205Du4150. Nullification of the resolution of the General Meeting of Association

It shall be as shown in the attached list.

A Reconstruction Project Cooperatives

December 22, 2005

January 12, 2006

1. All of the plaintiffs' claims are dismissed. 2. Costs of lawsuit are assessed against the plaintiffs.

The defendant's reconstruction resolution of March 14, 2002 and the management and disposal plan plan resolution of the special general meeting of October 20, 2002 are confirmed to be null and void.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the entire pleadings as to the results of the inquiry into the fact of Gap's 1, 7, 8, 9, Gap 4, 11-1, 2, 3, and Eul 1-1 through 17, respectively.

A. The defendant was established for reconstruction of A (22 Dong-dong 590 households, 1 commercial building 6 households) which was constructed on the ground outside and 25 lots, Nam-gu Incheon Metropolitan City, and was authorized by the head of the Nam-gu Incheon Metropolitan City on May 10, 1996, and was approved for establishment by the head of the Nam-gu Incheon Metropolitan City. The plaintiffs are the members of the defendant.

B. The Defendant obtained approval of the housing construction project plan on May 13, 1998. The Defendant partially modified the project plan to reconstruct the apartment of 18 units, 1733 units on each of the above lands, and obtained approval from the head of the above Gu on April 8, 2002 (hereinafter referred to as the “building of this case”). From July 10, 2001 to February 6, 2002, the Defendant: (a) from 58 members of the total number of 596 members of the 596 members of the 598 members of the 596 association, determined the difference between the cost required for the removal of the building and the new construction of the new building; (c) the matters concerning the apportionment of the cost; (d) the members of the 1,733 units on each of the above lands (hereinafter referred to as the “re-building resolution”); and (d) the members of the 50% association or the amount of the 160 billion unit shares to be paid without compensation.

D. The Defendant, at the special meeting held on October 20, 202 and 20, adopted a resolution by the majority of at least 4/5 of both the sectional owners and voting rights on a management and disposal plan that changes the ratio of shares provided free of charge (free of charge) from 110% to 121% of the shares that have been provided free of charge while maintaining a final settlement payment system regarding the apportionment of rebuilding expenses (hereinafter “the instant management and disposal plan resolution”).

2. Determination on this safety defense

With respect to the instant lawsuit seeking confirmation of invalidity of each of the instant rebuilding resolution and the instant management and disposal plan resolution, the Defendant asserted that filing a claim for confirmation of invalidity is unlawful, as there is no violation of the good faith principle or no benefit of confirmation, and there is no benefit of confirmation.

However, even if the plaintiffs consented to each of the above resolutions or the lawsuit of this case was filed within the nearest three years, such circumstance alone is insufficient to deem that the defendant also has a legitimate expectation to believe that the plaintiffs did not dispute the validity of each of the above resolutions, and as long as the reconstruction project, such as the completion of the reconstructed building or the liquidation of contributions, has not been completed, the defendant's defense is without merit.

3. Judgment on the merits

A. The plaintiffs asserted that the rebuilding cost of this case was KRW 164.97 billion at the time of the rebuilding resolution of this case, and thereafter increased to KRW 235.0 billion, so the rebuilding resolution by the majority of 4/5 or more of the sectional owners and voting rights is again required, but the defendant did not undergo it again, and accordingly, the rebuilding resolution of this case was invalidated.

The statement of Gap evidence No. 5 (no data to acknowledge the existence of a petition) alone is insufficient to recognize that the rebuilding cost of this case is 235 billion won, and there is no other evidence to acknowledge it. The defendant's union members agreed to follow the final contribution system with respect to the apportionment of rebuilding costs of this case as seen above. Thus, even if the expenses are increased, the agreement of the union members changing the contents of rebuilding resolution cannot be deemed necessary again as the union members do not need additional contribution to the rebuilding cost, and the rebuilding resolution of this case which was effectively formed in king cannot be deemed null and void, regardless of the fact that the rebuilding cost of this case cannot be implemented again even if the agreement of family union members is needed. Thus, the plaintiffs' above assertion is without merit.

B. The plaintiffs asserted that each of the above resolutions violates Article 47 (3) of the Act on the Ownership and Management of Aggregate Buildings and are null and void, since they did not specifically present the proceeds of sale, construction cost, development gains, proportional ratio (the number of union members' rights per unit area), and the conversion price per unit area in making the instant rebuilding resolution and the instant management and disposition plan resolution.

The rebuilding cost sharing becomes the standard for selecting whether the sectional owners would participate in the rebuilding, or whether the sectional owners would sell the sectional ownership and not participate in the rebuilding in accordance with the market price. Therefore, it would be sufficient to determine the apportionment or calculation standards to the extent that the rebuilding implementation stage would not have agreed again on the cost sharing. In the rebuilding resolution of this case, although the rebuilding resolution of this case did not specify the free share ratio, the rebuilding decision of this case determined the share to be paid according to the usual choice at a certain rate. Since the management and disposal plan of this case explicitly stated the share of a certain amount calculated according to a certain free share ratio, it cannot be said that the above resolution was null and void even if the plaintiffs did not notify all the members of the calculation basis as argued by the plaintiffs. Ultimately, the plaintiffs asserted that the rebuilding rate of 10% should be converted to the previous appraisal and management plan of this case as the size of the land and the amount claimed by the members of the association in accordance with the above management and disposal plan of this case, it cannot be viewed that the above 20% resolution of each of this case is invalid.

The entries in Gap evidence 6 and the statement in Gap evidence 13-1 and 2 to the purport that the free share ratio of the low-rise apartment in Gangnam-gu Seoul and Seocho-gu is between 150% and 170%, and that the free share ratio of the other C apartment is between 130% and 202%, are insufficient to recognize that the appropriate free share ratio in the reconstruction apartment in this case exceeds 121%, and there is no other evidence to support it, the plaintiffs' above assertion is without merit.

D. The plaintiffs asserted that, while the land implemented by the reconstruction project of this case is located in the apartment district, the management and disposal plan of this case is not approved by the administrative agency under the former Urban Redevelopment Act or the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, so the resolution of this case is invalid.

On the other hand, the approval act of the administrative agency is a supplement to complete the legal effect by supplementing the basic act subject to it, and its validity is an issue depending on the existence or absence of such approval does not affect the internal judicial system between the reconstruction improvement project association and its members (see Supreme Court Order 2002Da12, Mar. 11, 2002). Thus, even if the defendant did not obtain the approval of the administrative agency on the management and disposition plan, the resolution of the management and disposition plan of this case does not become null and void under the private law in relation to the plaintiffs, without examining whether or not the administrative agency's approval should be obtained on the management and disposition plan of the reconstruction of this case under the related Acts and subordinate statutes. Thus, the plaintiffs' above assertion is without merit.

4. Conclusion

Therefore, all of the plaintiffs' claims are dismissed. It is so decided as per Disposition.

Judges of the presiding judge, Yang Sung-ju

Judges Heroop

Judge Kim Jae-soo