[1] The standard for determining whether a new project implementation plan was replaced by a new project implementation plan which actually changes the main parts of the previous project implementation plan and the validity of the previous project implementation plan and the main parts of the original project implementation plan, in case where the Housing Redevelopment and Improvement Project Association established a new project implementation plan and approved a new project implementation plan to substantially change the main parts of the original project implementation plan and changed the original project implementation plan

[2] In a case where there is a defect in the project implementation plan for a housing redevelopment project, whether there is a legal interest in seeking nullification or revocation of the project implementation plan, such as land which did not apply for parcelling-out within the period of application for parcelling-out or lost its membership under Article 47 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents

[3] Where a written consent of a project implementation plan was made before the contents of the project implementation plan become final and conclusive, whether such circumstance alone is illegal (negative) / Whether the consent becomes null and void as a matter of course where the contents of the project implementation plan were changed after the consent (negative), and in such case, whether the association has a duty of good faith to notify its members of the contents of the changed project implementation plan and

[4] In a case where there is no defect in the approval disposition of a project implementation plan, whether the cancellation or invalidation of the approval disposition of a project implementation plan, which is a supplementary act, can be claimed for the invalidation of a project implementation plan (negative)

[1] Articles 28(1) and 30 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444 of Feb. 6, 2009) / [2] Article 47 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444 of Feb. 6, 2009); Article 12 of the Administrative Litigation Act / [3] Article 28(5) and (6) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444 of Feb. 6, 2009); Article 28(1)5 (def) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 2145 of Apr. 21, 2009) / [4] Article 28 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents

[2] Supreme Court Decision 2008Du18342 Decided December 8, 2011 (Gong2012Sang, 135) / [4] Supreme Court Decision 2001Du7541 Decided December 11, 2001 (Gong2002Sang, 304)

Plaintiff 1 and two others (Attorneys Seo Hong-hoon et al., Counsel for the plaintiff-appellant)

The Intervenor joining the Plaintiff

The head of Seodaemun-gu Seoul Metropolitan Government (Law Firm Korea, Attorneys Kim Jong-chul et al., Counsel for the plaintiff-appellant)

Hong 12 District Housing Redevelopment and Improvement Project Association (Law Firm Barun et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2011Nu2080 decided September 23, 2011

Of the judgment of the court below, the part against Defendant Hong 12 Housing Redevelopment Project Association is reversed, and that part of the case is remanded to the Seoul High Court. The plaintiffs' appeals are dismissed in entirety. The costs of appeal by the plaintiffs are assessed against the plaintiffs.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal by the Defendant Union

A. As to the assertion on the benefit of action

According to Articles 28(1) and 30 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444, Feb. 6, 2009; hereinafter “former Act”), where a project implementer intends to implement a housing redevelopment project, he/she shall obtain authorization from the head of a Si/Gun along with the project implementation plan, including the land use plan, fundamental infrastructure and common use facilities, resident relocation measures, resident relocation measures, resident relocation measures, resident relocation measures, building plans for rental houses, building plans for rental houses, building volume ratio, building volume ratio, etc. of buildings generated in the course of implementing the construction plan and maintenance project, and other matters necessary for the implementation of the project, including the matters prescribed by City/Do municipal ordinances, as prescribed by Presidential Decree, and also obtain authorization from the head of a Si/Gun, and if he/she intends to modify the authorized matters, he/she shall report it to the head of

In light of the contents, form, purport, etc. of the relevant laws, the validity of a new project implementation plan shall be lost if it has changed the contents of the original project implementation plan and reported minor matters, and if the approval has been obtained by changing other matters, the portion not changed in the original project implementation plan shall still exist and its validity shall be maintained. However, the validity of a new project implementation plan shall be determined by comprehensively taking into account the contents of the change in the original project implementation plan, the cause and degree of change, the period between the original project implementation plan and the original project implementation plan, the period between the original project implementation plan and the original project implementation plan, the subsequent act and its progress, etc. based on the premise that the original project implementation plan is valid, in order to correct the defects of the original project implementation plan, and the new project implementation plan can be evaluated as replacing the original project implementation plan with the fact that the main parts of the original project implementation plan are substantially changed.

The court below determined to the purport that the change of the project execution plan approved on December 28, 2010 cannot be deemed to have actually established a new project execution plan as a substitute for the project execution plan of this case approved on June 8, 2009, on the ground that the change of the project execution plan approved on December 28, 2010 cannot be deemed to have actually established a new project execution plan as a substitute for the project execution plan of this case, since the change of the project execution plan of this case approved on December 28, 2010 cannot be deemed to have lost the validity of the project execution plan of this case, and there is no interest in legal action to seek confirmation of invalidity because the change of the project execution plan of this case loses its validity.

In light of the above legal principles, the judgment of the court below is just, and there is no error of law by misunderstanding the legal principles as to whether a project implementation plan loses its validity due to the change of a project implementation plan or legal principles as to the interest

B. As to the assertion that no standing to sue exists due to the loss of membership

Where there is a defect of invalidity automatically in the project implementation plan for a housing redevelopment project, a redevelopment project partnership shall establish a new project implementation plan and obtain authorization from the competent authority, and establish a management and disposal plan by applying for parcelling-out. Therefore, since an owner of land, etc. who fails to apply for parcelling-out within the period of application for parcelling-out or lost the status of a member under Article 47 of the former Urban Improvement Act and the articles of association of the partnership can purchase buildings, etc. by applying for parcelling-out at that time, there is a legal interest to seek nullification or revocation of the project implementation plan (see Supreme Court Decision 2008Du18342, Dec. 8, 201).

According to the above legal principles, even if the plaintiffs lost their membership because they did not apply for parcelling-out within the period of application for parcelling-out after the approval of the project implementation of this case, there is a legal interest to dispute the validity of the project implementation plan of this case. Therefore, the judgment of the court below on the premise that they have standing to sue is justifiable, and there is no

C. Whether the defects of the project implementation plan of this case were serious and clear

(1) Article 28(5) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 2145 of Apr. 21, 2009) provides that the project implementer shall obtain prior consent from the owners of land, etc. as prescribed by its articles of incorporation, etc. before applying for authorization for the project implementation, and Article 17(6) of the same Act provides that Article 17 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 2145 of Apr. 21, 2009) shall apply mutatis mutandis to the consent to the project implementation plan. Article 28(1)5 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 2145 of Apr. 21, 2009) provides that “the person who withdraws consent before applying for authorization for the

According to the contents and purport of the relevant laws and regulations, the former Act only stipulates that prior approval of a project implementation plan shall be made before applying for approval of the project implementation plan, and the method and quorum shall be subject to autonomous legal regulations by articles of association, etc., so if consent was prepared before the contents of the project implementation plan become final and conclusive, it shall not be deemed unlawful merely because it can be deemed that the consent was made. In light of the purport of Article 17 of the Act on the Maintenance of Urban Areas and Dwelling Conditions applicable mutatis mutandis to the consent of the project implementation plan pursuant to Article 28(6) of the Act and Article 28(1)5 of the Enforcement Decree of the Act, it cannot be deemed that the consent was naturally invalidated even if the contents of the project implementation plan were changed after the consent of the project implementation plan without relation to the change of the contents of the project implementation plan after the consent of the project implementation plan (see Supreme Court Decision 2011Du12801, Jan. 16, 2014).

(2) According to the reasoning of the judgment below and evidence duly adopted and examined by the court below, the promotion committee or the defendant union received the written consent of establishment from the owners of land, etc. before and after the inaugural general meeting of the association from June 2007 to September 2007 as well as the written consent of the project implementation plan (23 persons from among all the owners of land, etc., 357, and 62.3% from the initial consent rate). The defendant union presented the project implementation plan (the draft) as the agenda at the inaugural general meeting of July 10, 2007. The project implementation plan (the draft) was partially transferred out of the rearrangement plan and was not included in the project implementation plan, such as building-to-land ratio, volume ratio, number of households, and distribution of households by square. The defendant union applied for the approval of the project implementation plan of this case from the owners of land, etc. during the process of obtaining the consent of the project implementation plan of this case.

(3) Examining these facts in light of the legal principles as seen earlier, since the improvement project cost of the instant project implementation plan was increased compared to the rearrangement project cost scheduled at the time the consent was requested, it should be deemed that there was an error of procedural violation of the principle of trust and good faith that the Defendant association has a duty to notify the owners of land, etc. of the contents of the changed project implementation plan before applying for approval of

However, 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 the important part of the law and is objectively apparent. In determining whether the defect is significant and obvious, 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 (see, e.g., Supreme Court en banc Decision 94Nu4615, Jul. 11, 1995; Supreme Court en banc Decision 2010Du10907, Feb. 16, 2012).

In light of the above legal principles, the Act on the Maintenance of Urban Areas and Dwelling Conditions does not have any provision on the validity of consent in cases where the contents of the consent differ from those proposed at the time of the initial consent, and there is no Supreme Court decision on the validity of the consent, and in such cases, it is unclear whether the consent loses its validity or not. In such a case, there was no declaration on the legal principles as to whether the consent should be notified to the owners of land, etc., and ② in this case, the majority of the entire members of the inaugural general meeting agreed to the project implementation plan (in addition to the consent of the project implementation plan in this case, the consent of only 106 persons who are less than the majority of the total members of the 357 members of the 357 members of the inaugural general meeting was deemed to have agreed to the amendment of the project implementation plan after the written consent for the establishment of the association, etc., it seems that the consent of the owner of land, etc. can not be deemed as serious and apparent.

(4) However, since the contents of the project implementation plan of this case were not determined at the time of the preparation of the written consent, the court below held that the defects of this case's project implementation plan of the defendant association were serious and obvious, since the defects of this case's project implementation plan are important and obvious, since the project implementation plan of this case's project implementation plan is not illegal on the premise that the consent was defective, the cost of improvement project was increased by 23% compared to the time of the request for consent, and the defendant association seems to have been clearly aware that the majority of the owners of land, etc. should obtain the consent of this case's project implementation plan of this case's implementation plan of this case's implementation plan of this case's implementation plan of this

2. Regarding the plaintiffs' grounds of appeal

A. As to the assertion of misapprehension of legal principles as to the validity of approval of the project execution plan

Where a business action plan which is a basic act is null and void, the business action plan which is the basic act cannot be deemed valid, even if there is a disposition to approve it, and if the basic act is defective only in the legal, effective, and complementary act itself, the invalidation or revocation of the approval disposition can be asserted. However, if there is no defect in the approval disposition, even if there is no defect in the basic act, it may not be claimed for the revocation or invalidation of the approval disposition on the ground that the basic act is null and void (see Supreme Court Decision 2001Du7541, Dec. 11, 2001, etc.).

Therefore, in this case where it is impossible to seek a confirmation of invalidity of the authorization disposition on the ground that the basic act is null and void, the judgment of the court below is not appropriate, but it is justified in its conclusion that rejected the plaintiffs' claims against the defendant head of the Gu who sought a confirmation of invalidity

B. As to the assertion of misapprehension of the legal principle regarding the procedure for project implementation authorization

The lower court determined that the period for the public inspection of the instant project implementation plan was at least 14 days pursuant to Article 31(1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (wholly amended by Act No. 9444, Feb. 6, 2009); and that the Defendant head of the Gu made the period for the public inspection of the instant project implementation plan from April 10, 2009 to April 24, 200, pursuant to the foregoing provision, the period for the public inspection was lawful. In addition, based on the comprehensive consideration of the adopted evidence, the lower court determined that the Defendant head was subject to individual notification procedures by the latter part of Article 42 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (wholly amended by Presidential Decree No. 22277, Jul.

In light of the relevant legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of the legal principles as to the procedure of project implementation as otherwise alleged in the ground of appeal, or exceeding the bounds of free evaluation

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Defendant Union, the case is remanded to the Seoul High Court and all appeals by the Plaintiffs are dismissed. The costs of appeal by the Plaintiffs are assessed against the Plaintiffs. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)