(영문) 서울행정법원 2020.1.31. 선고 2019구합3766 판결

A. The Defendant is an association that implements a housing redevelopment improvement project in Eunpyeong-gu Seoul Metropolitan Government (hereinafter referred to as the “instant rearrangement zone”) and the Plaintiff is the owner under the Eunpyeong-gu Seoul Metropolitan Government Down Housing E in the instant rearrangement zone and is the Defendant’s member.

B. The defendant publicly announced the application for parcelling-out, sent an instruction on the application for parcelling-out to its members individually by registered mail, and the plaintiff did not apply for parcelling-out within the period of application for parcelling-out.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

2. Summary of the plaintiff's assertion

The defendant announced the plaintiff that "the plaintiff is eligible for cash settlement because he/she did not apply for an application for parcelling-out within the period of application for parcelling-out, and is eligible for membership loss." However, since the plaintiff was in a prison from March 22, 2017 to March 22, 2019, the defendant failed to receive an instruction on the application for parcelling-out, and due to this, the defendant did not apply for parcelling-out within the period of application for parcelling-out, so it is improper for the defendant to classify the plaintiff as a person subject to cash settlement, and the plaintiff still

3. Determination ex officio as to the legitimacy of the instant lawsuit

The management and disposal plan determines that the rights to the land and buildings created by implementing the rearrangement project based on the details of application for parcelling-out from the association members shall be allocated to the association members and the general public in accordance with certain standards, and when it becomes final and conclusive through the public notice of authorization, it constitutes an independent administrative disposition with binding force on the interested parties (see, e.g., Supreme Court Decision 2015Du51347, Dec. 15, 2016). If a union member fails to make an application for parcelling-out or parcelling-out of the newly constructed housing as a rearrangement project, it becomes a person subject to cash settlement and lose his/her status as a union member is determined only when the management and disposal plan, including the contents thereof, is established and authorized and publicly announced (see, e.g., Supreme Court en banc Decision 94Da31235, Feb. 15, 196).

The plaintiff is the plaintiff, "the plaintiff is a person subject to cash settlement and is disqualified for membership."

Under the premise that "the plaintiff was notified, the plaintiff did not receive a written guidance on the application for parcelling-out, and thus the plaintiff filed the lawsuit in this case claiming that the plaintiff does not correspond to the person subject to cash clearing. However, there is no evidence to acknowledge the fact that the defendant provided guidance to the plaintiff as alleged by the plaintiff, and even if the defendant provided guidance to the plaintiff as alleged by the plaintiff, it does not lose the status of the plaintiff as a member due to such defendant's notification or guidance, but as mentioned above, the plaintiff establishes a management and disposition plan by classifying the plaintiff as a person subject to cash clearing, obtains approval of the management and disposition plan after the resolution of the association general meeting, and makes a public notification thereof (However, the time when the plaintiff loses his status as a member is retroactively applied to the following day of the expiration date of the period for application for parcelling-out, but this is premised on the premise that all of them were effective as an independent administrative disposition by which the management and disposition plan that designates the plaintiff as the person subject to cash clearing was approved, and therefore, the plaintiff still has the status of the defendant's member

However, in order to have the interest to confirm the legal relationship that is the object of a lawsuit for confirmation, it is necessary to immediately determine the legal relationship in accordance with the judgment for confirmation in order to eliminate the risk and apprehension, and it is the most effective and appropriate means (see, e.g., Supreme Court Decision 2002Du1823, Jun. 14, 2002). Under the current Administrative Litigation Act, a lawsuit seeking administrative agencies to confirm or not to take certain measures in the future is not allowed (the lawsuit for confirmation of performance, lawsuit for confirmation of obligation, or lawsuit for prevention) (see, e.g., Supreme Court Decisions 91Nu4126, Feb. 11, 192; 2003Du1988, May 25, 2006; hereinafter referred to as the “Plaintiff’s membership in the defendant’s association), and even if the Defendant does not have an obligation to seek for confirmation of the legal relationship, it is not subject to the Plaintiff’s right to seek for confirmation of the management and disposition plan and its legal status.

Therefore, the instant lawsuit is unlawful.

4. Conclusion

Therefore, we decide to dismiss the lawsuit of this case and decide as per Disposition.