Plaintiff 1 and 10 others (Law Firm Davia, Attorney Cho Dong-pon, Counsel for the plaintiff-appellant)

The head of Mapo-gu Seoul Metropolitan Government

New Number 1 Housing Reconstruction and Improvement Project Association (Law Firm Eul, Attorneys Jeong Jae-ok et al., Counsel for the plaintiff-appellant)

October 14, 2011

Seoul Administrative Court Decision 2010Guhap29383 decided May 12, 2011

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal, including the part arising from the supplementary participation, shall be borne by the Plaintiffs.

The judgment of the first instance court is revoked. In the first instance court, it is confirmed that the defendant's approval of change against the Housing Reconstruction Promotion Committee of New Number 1 District on April 23, 2010 and the approval of establishment against the New Number 1 District Housing Reconstruction Improvement Project Association on June 4, 2010 are invalid.In the first instance, the above approval of change and the approval of establishment are revoked.

1. Details of the disposition;

가. 서울특별시장은 2006. 3. 23. 서울특별시 고시 제2006-95호로 서울 마포구 신수동 (지번 1 생략) 일대 4.9㏊(49,000㎡)를 도시 및 주거환경정비법(이하 ‘도시정비법’이라고 한다)이 정한 정비예정구역으로 지정하는 내용 등의 도시·주거환경정비기본계획(이하 ‘이 사건 정비기본계획’이라고 한다)을 수립하여 이를 고시하였다.

B. On May 3, 2006, Nonparty 26, etc. filed an application for approval to establish the said promotion committee on the ground that, in order to promote the housing reconstruction improvement project where the project is scheduled to implement the new zone of 49,000 square meters in Mapo-gu Seoul Metropolitan Government (number 1 omitted), all 343 owners of the land, etc., obtained the consent of 187 members among 343 owners of the land, etc. (54.51% of the consent rate), and the Defendant filed an application for approval to establish the “establishment Promotion Committee for the New Zone of Housing Reconstruction Association” with the Defendant on the ground that the Defendant approved the establishment of the said promotion committee on the ground that there was the consent of 187 members among the total 342 owners of the land, etc. in the said zone (hereinafter referred to as the “instant approval to establish the promotion committee, and the said promotion committee is referred to as the “instant promotion committee”).

C. On October 29, 2009, the Mayor of Mapo-gu Seoul Metropolitan Government changed the size, etc. of the instant rearrangement plan to a rearrangement zone (hereinafter “instant rearrangement zone”) and publicly announced the relevant topographical map as follows. In this case, in a zone to be rearranged under the instant rearrangement plan, the area of the instant rearrangement zone was excluded from 960 square meters, not only Seoul Mapo-gu, Mapo-gu, Seoul (number 2 omitted), but also 1,142.3 square meters in the rearrangement zone, and the area of the rearrangement zone was determined 47,501.4 square meters in the size of the instant rearrangement zone according to the cadastral record.

[Modification of Basic Plan for Maintenance of this case]

본문내 포함된 표 구분 구역번호 동명 지번 면적 용적율 층수 추진단계 기존 11 신수동 (지번 1 생략) 5.9㏊ 190%이하 평균층수 10 1 변경 ″ ″ ″ 5.8㏊ ″ - ″

【Location and Size of the Rearrangement Zone】

The name and location of the zone for the designation of a table in the main sentence and new number of new housing reconstruction improvement zones (number 1 omitted) in Mapo-gu 47,501.4

D. On March 26, 2010, the instant promotion committee filed an application with the Defendant for approval of the change of the promotion committee of this case with the content that the project implementer is scheduled to implement the said 47,501 square meters, by asserting that the owners of the instant improvement zone were 401 owners of the land, etc., and that the consent (51.62% of the consent rate) was additionally obtained in addition to the consent of 187 owners who consented to the establishment of the promotion committee at the time of the instant approval of the establishment at the time of the instant approval of the establishment. The Defendant approved the change of the promotion committee of this case on April 23, 2010 on the ground that there was 207 consent of 401 owners of the land, etc. in the instant improvement zone (hereinafter “instant approval of the change”).

E. On May 24, 2010, the instant promotion committee filed an application with the Defendant for authorization to establish an association, attaching a written consent of the owners of land, etc., and the Defendant approved the establishment of the Defendant’s Intervenor Cooperative (hereinafter “ Intervenor Cooperative”) on the ground that 314 of the owners of land, etc., among 414 owners of land, etc., gave consent (75.8% of the consent rate), on June 4, 2010 (hereinafter “instant approval to establish the association”).

F. Meanwhile, the Plaintiffs are owners of land or its ground buildings located within the instant rearrangement zone.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 7, Gap evidence 8, Gap evidence 9, Gap evidence 10, Eul evidence 10, Eul evidence 2-1, 2, Eul evidence 5, Eul evidence 6, the purport of the whole pleadings and arguments

2. Determination as to the defense prior to the merits regarding the claim related to the approval for modification of the instant case

A. The intervenor's assertion

The plaintiffs primarily seek revocation of the approval for modification of the instant case’s modification and conjunctively sought revocation of the approval for modification. Accordingly, the Intervenor Mutual Aid Association asserts that “The Intervenor Mutual Aid Association shall comprehensively succeed to the rights and obligations of the Promotion Committee under the Urban Improvement Act upon obtaining the approval for establishment of the Promotion Committee, and at the same time the Promotion Committee ceases to exist. As such, the Plaintiffs’ petitioning nullification of the approval for modification of the instant case’s modification, and the conjunctive claim for revocation is unlawful as there is no benefit of lawsuit

B. Determination

As seen in the background of the disposition, the Defendant issued a disposition to authorize the establishment of the instant promotion committee on June 4, 2010.

However, in full view of the following facts: (a) if an association is a temporary organization established for the purpose of establishing the association, the rights and obligations of the committee's business affairs are comprehensively succeeded to the association; (b) the committee's objective is achieved at the same time; and (c) the application for authorization for establishing the association becomes extinct automatically; and (b) the application for authorization for establishing the committee's establishment is a requirement for the revocation or invalidation of the approval for establishing the committee; (c) there is no need to seek confirmation or revocation of the approval for establishing the committee in a case where the committee's approval for establishing the association is issued; and (d) even if the application is accepted in a lawsuit seeking nullification or revocation of the approval for establishing the association, the committee's already extinguished is not the most effective and appropriate means to resolve disputes, and thus, there is no interest in the lawsuit.

C. Sub-committee

Therefore, among the lawsuits of this case, the plaintiffs sought confirmation of invalidity of the approval of the modification of this case, and the preliminary claim for revocation is unlawful as there is no benefit of lawsuit.

3. Determination on the claim related to the establishment authorization disposition of this case

A. The plaintiffs' assertion

1) Defect in the illegality of the instant permit for establishment and the instant permit for modification

The approval of the establishment of this case and the approval of the modification thereof shall be null and void or revoked for the following reasons. Accordingly, the approval of the establishment of this case based on the application by the committee of promoters of this case, which is lawful, is based on the application by a non-authorized person, and its defect shall be null and void

A) Defect in the approval of the establishment of this case

In order to establish an association for a housing reconstruction project, the scope of the owners of land, etc. needs to be determined on the premise that the promotion committee is established, and in order to determine the scope of the owners of land, etc., the designation and announcement of a rearrangement zone by the Mayor/Do Governor should be prior to the designation and announcement of the rearrangement zone. However, since the instant approval for establishment was made before the designation and announcement of the rearrangement zone, the defect is significant and apparent, and the instant approval for alteration is null and void, and the instant

B) Defects in the instant modified approval disposition

(1) Violation of Article 13 of the Urban Improvement Act, etc.

Since the rearrangement zone of this case was designated and publicly announced differently from the originally planned rearrangement zone, the promotion committee of this case should have obtained a new written consent from the entire owners of the land, etc. in the rearrangement zone of this case, and applied for approval for modification of the promotion committee. Furthermore, according to Articles 3 and 4 of the Addenda to the Urban Improvement Act (Act No. 9444, Feb. 6, 2009), when intending to apply for approval for the establishment of the promotion committee based on the written consent to the establishment of the promotion committee, which was obtained prior to the enforcement of the above Act, the promotion committee of this case should apply

Nevertheless, the committee of promotion of this case, after three months from the date of enforcement of the above Act, cannot be deemed to be a new consent form or deemed to be a new consent form for the establishment of the committee, and only 20 existing 187 consent form and additional consent form received at the time of the approval form of this case, received the approval form of this case and received the approval form of this case from the defendant. Thus, the approval form of this case was defective in violation of Article 13 of the Act, Articles 3 and 4 of the Addenda to the same Act ( February 6, 2009).

(2) Defects in the requirements to modify the rearrangement zone

According to Article 23(1) of the Enforcement Decree of the Urban Improvement Act, when a promotion committee intends to expand or reduce the scope of implementation of a rearrangement project, it shall obtain consent from the majority of the owners of the land, etc. or from at least 2/3 of the owners of the land, etc. who have consented to the organization of the promotion committee. Since the majority of the owners of the land, etc

2) Defect in the disposition of approving the establishment of the instant association

The disposition of approving the establishment of this case has unique defects as follows, and the disposition of approving the establishment of this case shall be null and void or cancelled due to the significant and apparent defects.

A) Defects related to multiple requirements

(1) Total number of owners of lands

Of the owners of land, etc. in the instant improvement zone, Nonparty 1, 7, 3, 4, 11, 12, and 5 were omitted from the total number of owners of land, etc. Therefore, if the said six persons are included in the total number of owners of land, etc., the owners of land, etc. are not 414 but 420 persons (397 persons who own land and buildings + 8 landowners and 11 landowners + 4 State-owned and public land management authorities).

(2) Number of consenters

(A) Since the identity of the rearrangement zone under the instant rearrangement plan and the rearrangement zone is not recognized, the written consent prior to the instant modification disposition cannot be deemed a legitimate written consent for the establishment of the Intervenor association.

(B) The finance division, the Ministry of Land, Transport and Maritime Affairs, the Seoul Metropolitan Government, and the Mapo-gu, which are state-owned and public land management authorities, need not consult with the defendant about the establishment of an association, and there is no need to be a member of the Housing Reconstruction Project Association, and it is not explicitly expressed his/her intention of consent. Therefore

(C) The period between the date of preparation of a written consent for the establishment of the association and the date of issuance of a certificate of personal seal impression attached thereto shall not be less than six years, Nonparty 13 and not less than three years, Nonparty 14, not less than two years, and Nonparty 15 and 16 must be excluded from the consenters.

(D) Nonparty 17 and 18, whose written consent to the selection of representatives of co-owners was omitted, must be excluded from the consenters.

(E) Non-party 19 who has a “road error” in the written consent for the establishment of the association must be excluded from the consenters.

(f) After submitting a written consent for the establishment of the association, Nonparty 20, whose certificate of personal seal impression has been supplemented, must be excluded from the consenters.

(G) Nonparty 21, 22, 23, 24, and 15 who has withdrawn the consent to establish an association after the designation and announcement of the instant rearrangement zone and before the application for authorization to establish an association should be excluded from the consent holder. In addition, Article 13(3) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”) guarantees the right to withdraw consent before the application for authorization to establish an association, and does not have any provision on the restriction on the right to withdraw consent, it is null and void as it violates the mother law.

(h) Some of the written consent for the establishment of the association submitted by the Intervenor is not a written consent for the establishment of the promotion committee, but merely a written consent for the establishment of the promotion committee or the consent for the modification of the promotion committee.

(i) Among the written consent for the establishment of an association submitted by the Intervenor, the person who prepared the above written consent for the establishment of an association should be excluded from the person who consented, as it partially omitted the details of the design of the building, the expenses and allocation standards for the removal and new construction of the building, the ownership ownership after completion of the project, etc.

(3) Sub-decisions

Even if a defect is recognized under paragraph (2) above, the consent rate is only 73.8% (310 / 420). Ultimately, the instant disposition for approving the establishment of an association was conducted without consent of at least 3/4 of the owners of land, etc.

B) any defect related to the area requirement;

The ratio of the area of State-owned and public land to 7,640 square meters among the total area of 47,501.4 square meters in the instant improvement zone is about 16%, and for the same reason, state-owned and public land management authority should be excluded from the person consenting to the establishment of the association. As such, in calculating the ratio of the area of land, the area of state-owned and public land should be excluded. However, as the area agreed by the owners of land, etc. among the area of 39,861 square meters in the instant improvement zone is 24,905 square meters (based on the total number of owners of land, etc. 420 square meters), the ratio of the area of land (based on the total number of owners of land, etc. 420 square meters) is substantially short of the statutory consent ratio (2/3). Furthermore, even if the area of land owned by the Defendant among state-owned and public land management authorities is added to the area of land owned by the association

C) Abuse of discretionary power due to the design of the application period for authorization of establishment

In light of the purport of Article 8(4)2-2 of the Urban Improvement Act, the Defendant’s application for authorization to establish the instant association was unlawful, since it abused discretion in light of the purport of Article 8(4)2-2 of the Act.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) As to the assertion of defects in the approval for establishment of this case

A) Article 13(1) and (2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8852, Feb. 29, 2008; hereinafter “former Act”) provides that where a person who is not the head of a Si/Gun or the Korea Housing Corporation intends to implement a rearrangement project, an association consisting of the owners of land, etc. shall be established, and where the association is to be established, an association establishment promotion committee shall be organized with the consent of a majority of the owners of land, etc. and the head of a Si/Gun shall be approved. Article 2 Subparag. 9(b) of the same Act provides that “owner of land, etc.” means the owner of a house and its appurtenant land located within an area other than the owner of a building and its appurtenant land or its appurtenant land, and Article 4(1) and (2) of the same Act provides that “the head of a Si/Gun shall establish a rearrangement zone including the size of a rearrangement zone and its appurtenant land, etc. and apply for the designation of an improvement zone.”

However, as seen in the background of the disposition, the Defendant issued the instant approval for the establishment of the instant promotion committee on June 30, 2006, which was before the designation and announcement of the zone to be rearranged or before the rearrangement zone is designated and announced. As such, the instant approval for establishment was defective when the scope of “owner of land, etc.” was not determined.

B) However, in order for an administrative disposition to be deemed null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient, and the defect is objectively obvious as serious in violation of the important part of the law. In determining the importance and clearness of the defect, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective, and at the same time, reasonable consideration should be made on the specificity of the specific case itself. In addition, in a case where an administrative disposition was rendered by applying a certain Act to a certain legal relationship or fact-finding, notwithstanding the absence of room for dispute over the interpretation of the law, when the administrative disposition was rendered by applying the above provision, it shall be deemed that the defect is significant and obvious. However, in a case where there is room for dispute over the interpretation of the law because the legal principles on the legal relation or fact-finding are not clearly revealed, even if the administrative disposition was issued by an erroneous interpretation, it is not clear that the defect is merely erroneous as to what legal relation or fact-finding not subject to the administrative disposition, and even if there is an objective circumstance that it may not be apparent.

C) However, considering the following circumstances, the instant approval disposition cannot be deemed as serious or apparent (see Supreme Court Decision 2010Du9358, Sept. 30, 2010).

(1) Unlike Article 13(2) of the former Urban Improvement Act, Article 13(2) of the same Act only provides that “where a person, other than the head of a Si/Gun or the Housing Corporation, intends to implement a rearrangement project, an association consisting of the owners of a plot of land, etc. shall be established, and where such association is intended to be established, an association establishment promotion committee shall be organized with the consent of a majority of the owners of a plot of land, etc. and the approval of the head of a Si/Gun shall be obtained.” However, there was no provision that limits

(2) According to Articles 3 and 4 of the former Act, when formulating a master plan for urban and residential environment improvement that includes a rough scope of zones scheduled to be designated as a rearrangement zone, the head of a Si/Gun/autonomous Gu shall establish a rearrangement project’s name, improvement zone, size, etc. to the extent consistent with the master plan, and request the Mayor/Do Governor to apply for designation of an improvement zone. As seen below, as seen in Article 3 (1) (3) of the former Act, the Defendant’s designation and announcement of the proposed rearrangement zone based on the master plan of this case on March 23, 2006 was almost possible while maintaining its identity.

(3) The Ministry of Construction and Transportation enforced and enforced as of September 2, 2003 by the Minister of Construction and Transportation, pursuant to the Act on the Work Process Standard of the Promotion Committee of the Establishment of the Urban and Residential Environment Cooperatives, if the pertinent area is reflected in the basic plan, the approval of the Promotion Committee was allowed even before the designation of the rearrangement zone.

(4) Article 6(1) of the Seoul Special Metropolitan City Ordinance on the Maintenance of Urban and Residential Environments, which was enforced at the time of the instant approval for establishment, states that “The Establishment Promotion Committee approved under Article 13 of the Urban and Residential Environment Improvement Act may propose the head of the competent Gu to formulate a plan for the designation of a rearrangement zone.” In addition, Article 6(2) of the said Ordinance on the Maintenance, which states that “The owners of land, etc. may propose the formulation of a plan for the designation of a rearrangement zone to the head of the competent Gu. In this case, consent shall be obtained from at least 2/3 of the owners of land, etc. in the relevant region.” However, the said Ordinance is premised

D) Therefore, even if there was a defect in the instant approval disposition on the establishment of the promotion committee, which is the telegraphic body of the Intervenor association, the defect does not automatically become invalid, and thus does not succeed to the instant approval order and the instant approval order on establishment of the association. Therefore, the Plaintiffs’ assertion that the instant approval order and the instant approval on establishment of the association are unlawful, invalid, or revoked due to the defect in the instant approval on establishment of the association is not accepted.

2) As to the assertion of defects in the instant modified approval disposition

A) As to the assertion of violation of Article 13 of the Urban Improvement Act

(1) As seen above, although there is a defect in the instant permit to establish the instant promotion committee, the instant promotion committee was established on June 30, 2006, which was the date of the permit to establish the instant promotion committee.

(2) In addition, Article 4(1) of the Urban Improvement Act provides that the contents of a rearrangement plan may be modified; Article 16(2) of the Urban Improvement Act provides that a housing reconstruction project association may modify matters authorized to establish; Article 16(2) proviso of the Urban Improvement Act and Article 27 subparag. 3 of the Enforcement Decree of the Urban Improvement Act provides that a rearrangement zone area may be modified without the consent of the association members if the size of the rearrangement zone is changed to less than 10% following the alteration of the rearrangement zone. Article 23(1)1(b) of the former Enforcement Decree of the Urban Improvement Act (amended by Presidential Decree No. 21679 of Aug. 11, 2009; hereinafter “former Enforcement Decree of the Urban Improvement Act”) provides that a majority of the owners of land, etc. or the owners of land, etc. who consent to the organization of the promotion committee shall obtain the consent of the promotion committee.

In light of the above contents of the Urban Improvement Act, as long as the rearrangement zone established by the promotion committee or the rearrangement scheduled zone is not modified to the extent that its identity is not recognized, it is reasonable to deem that the existing promotion committee continues to exist, and that the written consent to the establishment of the promotion committee is still valid. Of course, according to Article 23(1)1(b) of the former Enforcement Decree of the Urban Improvement Act, the promotion committee shall obtain the consent of the majority of the owners of land, etc. in the rearrangement zone or the three-minutes of the owners of land, etc. who have agreed to the organization of the promotion committee, but it is not necessary to obtain the written consent to

(3) However, as seen in the details of the disposition, it is reasonable to view that the area of 49,00 square meters in the zone subject to improvement based on the instant basic improvement plan is limited to a decrease of 1,498.6 square meters in size, which is about 3% of the rearrangement zone in this case, and the excluded area is about 2% of the size of the rearrangement zone, 960 square meters in size, and the transferred area is merely 1,142.3 square meters in size of the area subject to improvement, which is about 2.3% of the size of the rearrangement zone.

Therefore, even after the designation and public notice of the rearrangement zone of this case, the committee of promotion established based on the proposed rearrangement zone based on the proposed rearrangement zone of this case was somewhat modified in the proposed rearrangement zone, it shall be deemed that the intervenor continued to exist before the intervenor association was established, and there was no need to obtain a written consent to establish a promotion committee from the owners of land in the rearrangement zone.

(4) Therefore, under the premise that the identity of the rearrangement zone under the instant rearrangement plan and the rearrangement zone in this case is not recognized, the Plaintiffs’ assertion that the existing written consent to establish the promotion committee was submitted three months after the date of enforcement of the Urban Improvement Act (Act No. 9444, Feb. 6, 2009) cannot be accepted, on the premise that the new written consent to establish the promotion committee should be obtained from the owners of lands, etc. in the rearrangement zone.

B) Whether the requirements for the amendment are satisfied

In accordance with Article 23(1)1(b) of the former Enforcement Decree of the Urban Improvement Act, in order for the promotion committee to expand or reduce the scope of implementation of the rearrangement project, a majority of the owners of lands, etc. or at least 2/3 of the owners of lands, etc. who have consented to the organization of the promotion committee should be agreed.

However, comprehensively taking account of the purport of the entire arguments in each statement of evidence Nos. 30-1 to 411, it can be acknowledged that 198 of the owners of lands, etc. in the rearrangement zone of this case, namely, 374 persons within the rearrangement zone of this case, and 152 of the owners of lands, etc. who have consented to the composition of the promotion committee, who have agreed to the alteration of the rearrangement zone of this case, have consented to the alteration of the rearrangement zone of this case.

According to the above facts, the promotion committee of this case satisfies the requirements to revise the scope of implementation of the improvement project, and there is no ground to interpret that a majority of the owners of lands, etc. within the area to be newly incorporated should consent when the scope of implementation of the improvement project is changed, so the plaintiffs' assertion that the approval of modification of this case is unlawful is not acceptable.

3) As to the assertion of defects in the instant disposition approving the establishment of the association

A) Regarding multiple requirements

As delineated below, although the Defendant calculated the total number of the owners of land, etc. erroneously and thereby partly changed the consent rate, the final consent rate is 75.72% [315 persons (314 persons indicated in the written consent to establish the association of this case + Nonparty 1) / Total number of the owners of land, etc. 416 persons (414 persons indicated in the written consent to establish the association of this case + Nonparty 1, 11, and 25)] of the owners of land, etc. at the time of obtaining consent of at least 3/4 of the owners of land, etc.

(a) Total number of the owners of lands, etc.: 416 persons;

In full view of the following facts, the Defendant calculated the total number of owners of land, etc. at the time of the instant disposition approving the establishment of the association as 416 persons (414 + Nonparty 11,25), although it was found that the Defendant calculated the total number of owners of land, etc. at the time of the instant disposition approving the establishment of the association as 414 persons (414 persons indicated in the instant disposition approving the establishment of the association, 11, and 25), 208, 247, 648, 686, 686, 5 Eul’s evidence No. 7, Eul’s evidence No. 2-1 through 5, and 2-1 through 5 of Eul’s evidence No. 3-19, 203; and

(Plaintiff filed an application for resumption of pleadings with the assertion that Nonparty 8 and 2 “Nonindicted 9,10”, the co-owners of the land at Mapo-gu Seoul ( Address 3 omitted) and Mapo-gu Seoul ( Address 4 omitted), were omitted from the owners of the land, etc. However, even if it is assumed that two persons were omitted from the owners of the land, etc. as alleged by the Plaintiffs, the owners of the land in the instant rearrangement zone are 418 owners of the land, etc., and the number of consenting persons is 315, the number of consenting persons is 75.35% among them, as seen below.

(A) Non-party 1: including

In addition to the sole ownership of land in Mapo-gu Seoul Metropolitan Government ( Address 1 omitted), the non-party 1 shares the same ( Address 2 omitted) land and the above ( Address 2 omitted) building and one lot of land outside the same ( Address 2 omitted) with the non-party 2, etc., it shall be included in the owners

(B) Non-party 7: Exclusion

Non-party 6 owned a year-based ( Address 6 omitted) such as Mapo-gu Seoul ( Address 5 omitted), but submitted written consent to the establishment of the instant promotion committee on January 11, 2010. In addition, Non-party 7 was donated from Non-party 6 to Non-party 6 on June 1, 2010 and completed the registration of ownership transfer.

However, Article 28 (1) 3 of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents provides that the person who acquired the land or building from the person who has consented to the establishment of the association shall be deemed to have consented to the establishment of the association. Thus, it is reasonable to view that the person who acquired the land from the person who has consented to the establishment of the association succeeds to the status of the person who has consented to the establishment of the association. Further, Article 28 (1) 1 (c) of the Act provides that the number of parcels of land or buildings shall be calculated as one person regardless of the number of parcels of land or buildings if one person owns a large number of parcels of land or buildings. In light of the above provision, the person who acquired part of the land from the owner of a

However, as seen above, since Nonparty 7 acquired part of the building owned by Nonparty 6 who already agreed to establish an association, it cannot obtain the status of the owner of the land, etc. separate from Nonparty 6. Therefore, Nonparty 7 should be excluded from the number of the owners of the land, etc.

(Plaintiffs asserted that Nonparty 7 is included in the number of consenters, but the person who submitted written consent to establish an association is the same as the list of consenters, which does not include Nonparty 7.

(C) Nonparty 3, 4, 5: Exclusion

In the case of Nonparty 3, 4, and 5, the resident registration number on the registry of the real estate owned by each person is not indicated, and around July 29, 2010, the intervenor association sent a peremptory notice on the establishment consent and request for sale to Nonparty 3, 4, and 5, which was close to the date of the disposition to approve the establishment of the association of this case, to the address indicated on each registry, but all of the addresses were returned due to unknown address. In full view of the facts, Nonparty 3, 4, and 5 constitute “a person whose address was not indicated at the time of being registered as the owner, and whose address is not confirmed as different from the present address” under Article 28(1)4 of the Enforcement Decree of the Urban Improvement Act. Accordingly, Nonparty 3, 4, and 5 should be excluded from the owners of land, etc.

(D) Nonparty 11 and 25: including:

A resident registration number of Nonparty 11 and 25 is not indicated on the registry of real estate owned by Nonparty 11 and 25, and an intervenor association sent a peremptory notice on July 29, 2010, near the date of the disposition to authorize the establishment of the association of this case, to Nonparty 25 on the registry, and on July 29, 2010, sent to Nonparty 25 a peremptory notice on the consent to establish the association and the claim for sale, but the fact that the address is unknown is recognized. However, in the case of Nonparty 11 who is another co-owner, the intervenor association sent the peremptory notice to another place ( Address 7 omitted) other than the Seoul Mapo-gu (Seoul Mapo-gu) on the registry ( Address 8 omitted), which is deemed to have been returned to the address unknown (No. 648, B-B-3). Therefore, it cannot be concluded that at the time of the disposition to authorize the establishment of the association of this case, the whereabouts of Nonparty 25 or Nonparty 11 cannot be excluded from the owner of land, etc.

(b) Number of consenters: 315 persons;

The plaintiffs' assertion in this part cannot be accepted for the following reasons. In full view of the statements in Gap evidence 29-1 through 743, 310 persons, such as the list of consenters, from among the owners of land, etc. in the rearrangement zone of this case, submitted a written consent for establishing an association. Among them, the non-party 1 (No. 29-2) of No. 282, No. 282, which submitted a written consent for establishing an association as the sole owner of the land in Mapo-gu Seoul ( Address 1 omitted) and the representative of the co-owners of the same building ( Address 2 omitted) and the same ( Address 2 omitted), shall be counted as two persons, and as seen below, four administrative agencies within the rearrangement zone of this case are included in the number of consenters, and the number of consenters is 315 persons.

(A) A written consent prior to the instant modification disposition

If the owner of a plot of land, etc. voluntarily estimated the relevant zone before the formation of the promotion committee or the housing reconstruction and improvement project association before the rearrangement zone is set and the project area finally finalized has changed to the extent that it is impossible to recognize the identity with the project area scheduled at the time of the consent, it shall not be deemed that the consent of the improvement zone is obtained prior to the determination of the rearrangement zone (see Supreme Court Decision 2011Du2842, Jul. 28, 2011).

However, even if the project zone planned at the time of consent and the actual project zone are changed, if the identity can be recognized, the consent of the housing reconstruction project association applying for authorization for the establishment of the renewal zone can be seen as having been applied for prior to the determination of the rearrangement zone, and the rearrangement zone in this case is designated differently from the rearrangement project zone under the rearrangement plan in this case, but the identity can be recognized as stated in the above 2) (A) (3). Thus, even if the consent prior to the approval of the modification in this case is the consent prior to the disposition of the modification in this case

Therefore, the plaintiffs' assertion that the consent prior to the instant approval disposition cannot be seen as a written consent for the establishment of the Intervenor Union cannot be accepted.

(b) State and public land;

Among 314 persons indicated in the written disposition approving the establishment of the association of this case, four government and public land management authorities are included. ① The above management authorities shall not sell or transfer state and public property in the rearrangement zone for purposes other than the rearrangement project pursuant to Article 66(3) of the Urban Improvement Act, and the state and public property in the rearrangement zone of Article 66(4) of the same Act shall not be sold or transferred for the purpose other than the rearrangement project, and the state and public property in the rearrangement zone of Article 9 of the State Property Act or Article 77 of the Local Finance Act shall be sold or leased preferentially to the project implementer or occupant and user, notwithstanding the state and public property management plan under Article 9 of the State Property Act or the contract methods under Article 43 of the State Property Act and Article 61 of the Local Finance Act. ② In reality, it is not easy to indicate the owner’s intent with respect to state and public property in the establishment stage of the association, and ③ it is reasonable to consider that there is no evidence to oppose the intervenor’s objection to the establishment of the association.

(C) Certificates of personal seal impression

The purport of requesting the attachment of a certificate of personal seal impression to the written consent for the establishment is to guarantee the authenticity of written consent for the establishment of the association. As long as the seal impression attached to the certificate of personal seal impression is identical to the written consent for the establishment of the association, the period between the date on which the written consent for the establishment of the association and the date on which the certificate of personal seal impression was issued attached thereto is different for at least two years (the written consent for the establishment of the association in preparation of the written consent for the establishment of the association) or even if the certificate of personal seal impression was supplemented after the written consent for the establishment was submitted (the written consent for the establishment

(D) Written consent to the selection of representative

According to the evidence No. 23-317, evidence No. 29-340, and evidence No. 342, Nonparty 18 and 17 shared land at Mapo-gu Seoul Metropolitan Government ( Address No. 9 omitted). It is recognized that they submitted a written consent to establish each association without submitting a separate written consent to select a representative. However, in light of the fact that the submission of a written consent to select a representative is only one method of expressing co-owners’ consent, it cannot be deemed that Nonparty 18 and 17 did not separately submit a written consent to select a representative, unless Nonparty 18 and 17 submitted a written consent to establish a respective association.

(A) According to the evidence 23-234 and 316, in addition to the co-ownership of the land of Mapo-gu Seoul Metropolitan Government ( Address 9 omitted), Nonparty 18 may recognize the fact that the land of Mapo-gu Seoul Metropolitan Government ( Address 10 omitted) and the above land and the above land and the above above land are solely owned by the building. Accordingly, Nonparty 18 and two "Nonindicted 18,17" should be included in the number of consenters.

(e) Address error

Compared with the registry (Evidence No. 23-1) or the certificate of personal seal impression (Evidence No. 29-2 of the A), the fact that there are errors, such as the address indicated in the written consent to establish the association (Evidence No. 29-1 of the A) with the non-party 19 is not recognized, and there is no other evidence to acknowledge it.

(f) Revocation of consent;

Comprehensively taking account of the overall purport of Gap evidence 29-223, 48, Gap evidence 33-1, Gap evidence 37-1, and Eul evidence 37-2, and the whole purport of the arguments, the non-party 24 is acknowledged to have not changed the matters prescribed in each subparagraph of Article 26 (2) of the Enforcement Decree of the Act on the Improvement of Urban Areas and Dwelling Conditions after the designation of the rearrangement zone in this case, and the non-party 15 prepared a written consent to establish each association around November 20, 209 and submitted it around that time. Non-party 24 and the non-party 15 expressed their intent to withdraw their consent to establish each association around June 3, 2010, and around February 26, 2010, the non-party 24 and the non-party 15 submitted the above written consent, and no change was made under the proviso to Article 26 (2) of the Enforcement Decree of the Act on the Improvement of Urban Areas and Dwelling Conditions until their withdrawal.

In addition, three persons, including Nonparty 21, 22, and 23, did not submit a written consent to the establishment of the association to the Defendant and were not included in the person who consented to the establishment of the association from the beginning. Ultimately, there was no member who could be excluded from

In addition, the content of Article 28(4) of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions constitutes “necessary matters concerning the method and procedure for calculating the number of consenters of land owners, etc.” under Article 17(2) of the Act, and thus, it can be deemed that the specific delegation of the parent law is followed. Article 28(4) of the Enforcement Decree of the Act is prepared to ensure that the maintenance and improvement procedure can be implemented smoothly, and it is difficult to deem that it exceeded the delegated limit within the predicted scope in light of the purpose of legislation of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions. In full view of the above, it cannot be deemed that Article 28(4) of the Enforcement Decree

(G) contain written consent to establish the promotion committee or written consent to change

The Defendant issued the instant disposition to establish the association based on the written consent for the establishment of the committee at the time of applying for the authorization to establish the committee, and there is no evidence to acknowledge the fact that the written consent for the establishment of the committee or the written consent for the modification of the committee was mixed with the written consent for the establishment of the committee (the Plaintiff did not specify whose name the written consent for the establishment of the committee or the written consent for the modification of the committee was included in all the written consent kept by the Defendant during the preparatory proceedings for pleadings

(h) Omission of legal particulars

In full view of the purport of the argument in subparagraph 3 above, it can be acknowledged that the standard written consent under Article 26(1) of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents and the attached Table 4-3 of the Enforcement Rule of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents submitted by the Promotion Committee of this case to the defendant at the time of applying for the establishment authorization, all the statutory matters stipulated

(B) relating to area requirements;

At the time of the disposition approving the establishment of the instant rearrangement zone, the total area of the instant rearrangement zone is 47,501.4 square meters; among them, the area of the State-owned or public land is 7,640 square meters, and the area of private land is 39,861 square meters, there is no dispute between the parties concerned. Furthermore, if the area of the State-owned or public land is included in the area of the State-owned or public land, the area of the consent within the private land is 24,905 square meters as alleged by the Plaintiffs, and the total area of the consent is 32,545 square meters (24,905 square meters + 7,640 square meters) and the area consent rate is 68.51 percent (32,545 square meters ¡À47,501.4 square meters). Accordingly, the Plaintiffs’ assertion that there is a defect in the area that failed to meet the requirements for approving the establishment of the instant rearrangement zone is not acceptable.

C) Regarding the application period for association establishment authorization

Article 8 (4) 2-2 of the Urban Improvement Act stipulates that the head of a Si/Gun may directly implement a rearrangement project or designate a designated developer or a housing construction project as a project implementer if the association establishment promotion committee fails to apply for authorization to establish the association within three years from the date on which the association establishment promotion committee obtains approval.

However, in light of the form of the provision, it is not necessarily required to designate a project implementer with the lapse of the above period, and in light of the fact that the promotion committee inevitably needs to obtain authorization for the establishment of a housing reconstruction project due to the nature of the housing reconstruction project, even if the promotion committee applied for authorization for the establishment of the instant project after the lapse of four years from the time when the approval for the establishment was received, it cannot be deemed that the Defendant’s approval for the establishment of the instant project constitutes an abuse of discretion.

Therefore, the plaintiffs' assertion that the disposition of approving the establishment of this case abused discretion is not acceptable.

4. Conclusion

Therefore, among the lawsuits of this case, the part seeking the revocation of the approval of this case's modification and the conjunctive part seeking the revocation of the approval of this case's modification should be dismissed, and the remaining claims of the plaintiffs shall be dismissed as it is without merit. The judgment of the court of first instance is justified as it is with this conclusion, and it is all dismissed as it is so decided as per Disposition.

[Attachment]

Judges Gangnam-gu (Presiding Judge)

1) Article 23(1) of the Enforcement Decree of the Act on the Improvement of Urban Areas provides the same content.