[1] In a case where a housing reconstruction project association obtained a disposition for authorization to newly establish an association through the same requirements and procedures as that for obtaining authorization to establish an association, whether the interest in lawsuit seeking confirmation of invalidity of the disposition for authorization to establish an association is extinguished

[2] Requirements for consent to establish a reconstruction association where a rearrangement zone for a housing reconstruction project consists of only a housing complex, where an area which is not a housing complex is included, or a housing complex is not included

[3] Whether a defect is apparent in a case where an administrative agency made a disposition without a reasonable ground when it erroneously interpreted the meaning of the requirements for the disposition under the statutory provision without a reasonable ground (affirmative)

[1] Article 16 (2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 10268 of April 15, 2010) / [2] Article 16 (2) and (3) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 10268 of April 15, 2010) / [3] Article 19 of the Administrative Litigation

[1] [2] Supreme Court Decision 2010Du25107 decided Oct. 25, 2012 (Gong2012Ha, 1931)

See Attached List of Plaintiffs (Attorney Lee Hong-sik, Counsel for the plaintiff-appellant)

The head of Jung-gu Seoul Metropolitan Government

Myeon 4 Housing Reconstruction and Improvement Project Association (Law Firm Dong, Attorneys Lee Dong-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Nu23394 decided September 30, 201

All appeals are dismissed. The costs of appeal are assessed against the Defendant and the Intervenor. Of the party’s indication in the lower judgment, the “Plaintiff 12. Kim Jong-young” shall be corrected to “Plaintiff 12. Kim Jong-young”.

The grounds of appeal by the Defendant and the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor Union”) are also examined (to the extent of supplement in case of supplemental appellate brief submitted after the lapse of the period for supplemental appellate brief).

1. As to the interest of a lawsuit seeking confirmation of invalidity of the disposition approving the establishment of the instant association

Where a housing reconstruction association obtains a new authorization to establish an association through the same requirements and procedures as the authorization to establish an association, if the relevant housing reconstruction association conducted follow-up acts such as exercising a right to demand sale, resolution of the general meeting on the selection of the executor, establishment of a project implementation plan, and establishment of a management and disposal plan under the premise that the initial authorization to establish an association is invalidated or revoked, such follow-up acts under the premise that the initial authorization to establish an association remains null and void retroactively. Thus, barring any special circumstance, barring such circumstance, the interest of litigation seeking confirmation of invalidity of the initial authorization to establish an association cannot be deemed to be extinguished (see Supreme Court Decision 2010Du25107, Oct. 25, 2012, etc.).

According to the reasoning of the judgment below and the evidence duly adopted and examined by the court below, ① applied for authorization to establish the association of this case to the defendant on December 18, 2008. The defendant, on April 16, 2009, filed a new lawsuit for authorization to establish the association of this case on the premise that the above application satisfies the consent requirement stipulated in Article 16 (3) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 10268, Apr. 15, 2010; hereinafter the "former Act") for authorization to establish the association of this case to establish the association of this case within the rearrangement zone of this case including housing complex and areas not housing complex together. ③ The defendant newly filed a lawsuit for authorization to establish the association of this case on July 22, 2009, the intervenor association of this case, asserting that the plaintiffs failed to meet the consent requirement stipulated in the former Act against the defendant, and sought confirmation of invalidity of the approval to establish the association of this case.

Examining these facts in light of the aforementioned legal principles, even if the Intervenor’s association obtained a new approval of establishment after the disposition of approving the establishment of the association, as long as the Intervenor’s association did follow-up activities such as selecting a contractor on the premise of the validity of the disposition of approving the establishment of the association of this case, the Plaintiffs should be deemed to have an interest in the lawsuit seeking nullification of the disposition of approving the establishment of the association of this case. The allegation in the grounds of appeal on this different premise is

2. As to whether the judgment of the court below which recognized the Yong-Ba as a housing complex was erroneous

For the reasons indicated in its holding, the lower court determined that the site of the Yong-Ba in the instant rearrangement zone constituted a housing complex under Article 2 subparag. 7 (a) of the former Act.

Examining the reasoning of the lower judgment in light of the record, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, by misapprehending the legal doctrine

3. As to the requirements for consent to establish a reconstruction association in the rearrangement zone of this case

According to Article 16(2) of the former Act, when the committee for promotion of housing reconstruction projects intends to establish an association, at least 2/3 of the sectional owners of each building in the housing complex, and at least 1/2 of the area of the land (excluding cases where the sectional owners of each building in multi-family housing have not more than five), at least 3/4 of the entire sectional owners in the housing complex, and at least 3/4 of the area of the land in the housing complex with the consent of the landowners who own not less than 3/4 of the area of the land, and at least 2/3 of the area of the land shall obtain the approval of the head of a Si/Gun, and at the same time, he/she intends to modify the authorized matters, notwithstanding the provisions of paragraph (3) of the same Article.

In light of the contents, form, and structure of the above provisions, when a committee for promotion of housing reconstruction projects establishes an association, it is reasonable to view that (1) where a rearrangement zone consists of only a housing complex, consent is required pursuant to Article 16(2) of the former Act, and (2) where an area which is not a housing complex is included in a rearrangement zone, consent is required pursuant to Article 16(2) of the former Act for a housing complex, but consent is required pursuant to Article 16(3) of the same Act for an area which is not a housing complex, and (3) where a housing complex is not included in a rearrangement zone, consent is required pursuant to Article 16(3) of the former Act for a housing complex (see Supreme Court Decision 2010Du25107, Oct. 25, 2012).

In this regard, the court below is just in holding that in order to establish a reconstruction association in the rearrangement zone of this case since the rearrangement zone of this case includes an area other than a housing complex, a consent under Article 16 (2) of the former Act shall be obtained for the housing complex within the rearrangement zone of this case, and that the consent under paragraph (3) of the same Article shall be required separately for an area which is not a housing complex, and contrary to the allegations in the grounds of appeal, there is no error of law by misapprehending the legal principles as to the requirements for consent for the establishment of a reconstruction association in the rearrangement zone of

4. As to whether the retention area located within the rearrangement zone of this case is excluded from the area subject to consent

The lower court determined that, in determining the consent requirements under Article 16(3) of the former Act, there is no ground to exclude the area of the retention area in the determination of the consent requirements, and that, even if the land owned by the light passenger transport company, which is used as a passenger bus stop in the instant rearrangement zone, is planned to be partially changed in the shape of the land as the instant project, and thus, it cannot be excluded from the area in determining the consent requirements as long as the land owned by the light passenger transport company is included in the instant rearrangement zone.

In light of the relevant legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the requirements for consent to the establishment of a reconstruction association.

5. As to whether the instant disposition approving the establishment of the association is invalid as a matter of course

A. In order for a defective administrative disposition to be null and void as a matter of course, it must be objectively obvious that the defect violates an important part of the relevant law and objectively. In determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the relevant 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 (see, e.g., Supreme Court en banc Decision 94Nu4615, Jul. 11, 1995; Supreme Court Decision 2010Du10907, Feb. 16, 2012). Meanwhile, in a case where an administrative agency takes an administrative disposition with respect to a certain legal relation or factual relationship by applying a certain provision, the legal doctrine clearly stating that the provision of the relevant law cannot be applied to such legal relation or factual relationship, and thus, it is evident that there is no room for 1500 Supreme Court’s error in interpreting the legal principles as to the pertinent administrative disposition, even if there is no room for 2015Da20165, etc.

B. According to the reasoning of the judgment below, under the premise that the establishment of a reconstruction association within the rearrangement zone of this case including a housing complex and an area which is not a housing complex meets only the requirements under Article 16(3) of the former Act, the Defendant determined that at least 3/4 of the owners of land or buildings (at least 76% = 76/100) stipulated in Article 16(3) of the former Act were satisfied, and issued the instant disposition to establish the association. Meanwhile, at the time of the instant disposition to establish a reconstruction association, 20 of the sectional owners of Yong-Ba, which is a housing complex within the rearrangement zone of this case, agreed to establish a reconstruction association, and the size of the land of 1,473 square meters, which is 1,473 square meters, and meets all of the requirements under Article 16(3) of the former Act, but the area of the land within the housing complex of this case 】 90% of the size of the land or building within 79% of the area of the land within the housing complex of this case 】 960.6.

Thus, the disposition of approving the establishment of the instant association is a serious defect that violates the majority and area requirements under Article 16(3) of the former Act, which is an important part of the laws and regulations regarding an area which is not a housing complex.

However, in light of the language and text of Article 16(2) and (3) of the former Act, Article 16(2) and (2) of the same Act applies to a rearrangement zone only composed of a housing complex, and Article 16(3) of the same Act is likely to be mistaken as it applies to a case where a rearrangement zone is most of a housing complex and a non-owned housing complex is included. In the event a rearrangement zone is a part of a housing complex at the time of the instant disposition to establish an association, the application of each of the above provisions could have been made unclear and complicatedly interpreted. (2) If a rearrangement zone is composed of a part of a housing complex and an area which is not a most housing complex, the legal principle that Article 16(2) and (3) of the former Act should be applied to a rearrangement zone after the instant disposition was issued, and there is no circumstance to deem that there was a conclusive interpretation of the above provisions at the time of the instant disposition to establish an association. In full view of the above, it appears that the Defendant did not have consented to the renewal project under Article 16(3) of the former Act.

However, as interpreted by the Defendant, even if only Article 16(3) of the former Act applies to the entire rearrangement zone, at least 3/4 of the owners of land or buildings and at least 2/3 of the land size are required to obtain consent. The instant disposition to establish the association satisfies the majority requirements of at least 3/4 of the owners of land or buildings (at least 76% ± 76% ± 100 x 100) but did not meet the requirements of at least 2/3 of the land size (at least 53.45% = 7,974.9 ± 14,918.86 x 100). However, there is no room to dispute over the interpretation of the legal requirements, since there is no ground to exclude the area in determining whether the area satisfies such requirements.

Therefore, even though the meaning of the area requirement in the language and text of the above provision is clear, the Defendant may be deemed to have rendered the instant disposition of approving the establishment of the association without any reasonable ground as a result of an erroneous interpretation of its meaning without satisfying the disposal requirements. Furthermore, Article 33 of the former Urban Improvement Act provides for special cases of approving the project implementation, including the contents of the maintenance or remodeling of a part of a building, but the said special cases are relevant to the authorization for the

Therefore, even if the Defendant’s application of Article 16(2) and (3) of the former Act, including the interpretation adopted at the time of the instant disposition approving the establishment of a housing complex, if most of the rearrangement zone is an area which is not a housing complex, and a part of a housing complex is included, it is clear that the instant disposition approving the establishment of a housing complex does not meet the size requirement of at least 2/3 of the area of the land. Thus,

C. Therefore, the decision of the court below on the same purport is just to have determined that the defect is so serious and clear that it is null and void as a matter of course, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on the invalidation of an administrative disposition as alleged in the grounds

6. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. Since there is an obvious error in the indication of the parties to the judgment below, they are corrected. It is so decided as per Disposition by the assent of all participating Justices.

[Attachment] List of Plaintiffs: Omitted

Justices Jo Hee-de (Presiding Justice)