In a case where a member becomes a person subject to settlement of cash due to satisfying the requirements prescribed in the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents in a housing reconstruction project, whether a cooperative may impose and collect dues pursuant to Article 61(1) of the same Act on the person subject to settlement of cash (negative in principle)

In light of the contents, form, and structure of Article 19(1) and Article 47 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 11293, Feb. 1, 2012); Articles 60(1) and 61(3) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Areas and Dwelling Conditions for Residents”); Article 48 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. 27409, Jul. 28, 2016); and the general process in which a project implementer collects charges from owners of land, etc., a cooperative, who is a project implementer, may impose and collect the difference of revenues accrued in the course of implementing a rearrangement project and a rearrangement project from its members, who meet the requirements prescribed in the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, can no longer be separately determined by the association’s articles of association from its members.

Articles 19(1) and 47 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 11293, Feb. 1, 2012); Articles 60(1), 61(1), and 61(3) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents; Article 48 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. 27409, Jul. 28,

Supreme Court Decision 2013Du19486 Decided December 24, 2014 (Gong2015Sang, 202) Supreme Court Decision 2015Da207785 Decided August 30, 2016

원고 1 외 1인 (소송대리인 법무법인 윈앤윈 담당변호사 이승환)

New Jinju Housing Reconstruction and Improvement Project Association (Law Firm Rowon, Attorneys Go Jin-ia et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Na104764 decided November 15, 2013

The part of the lower judgment against the Plaintiffs is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. Article 19(1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 11293, Feb. 1, 2012; hereinafter “former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”) provides that “The members of a rearrangement project (excluding a rearrangement project implemented by the head of a Si/Gun or the Korea Housing Corporation, etc.) shall be landowners, etc. (in cases of a housing reconstruction project, limited to those who consent to a housing reconstruction project), but if any of the following applies, one member representing the number shall be deemed as one member.” Article 60(1) of the current Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”) provides that “The cost of a rearrangement project shall be borne by a project implementer, except as otherwise provided for in this Act or other Acts and subordinate statutes,” and Article 61(1) provides that “The project implementer, such as land, imposes the difference between the cost and dues imposed under Article 60(1).”

In addition, Article 47 of the former Act provides, “If the owner of land, etc. falls under any of the following subparagraphs, the project implementer shall liquidate the land, buildings, or other rights in cash within 150 days from the date falling under such cases according to the procedures prescribed by Presidential Decree. 1. A person who fails to apply for parcelling-out; 2. A person who has withdrawn the application for parcelling-out; 3. A person who is excluded from the object of parcelling-out in accordance with the management and disposal plan approved under Article 48.” Article 48 of the Enforcement Decree of the same Act provides, “If the project implementer liquidates the land, buildings, and other rights of the owner of the land, etc. under Article 47 of the Act, such as the land, etc., in cash, the liquidation amount may be calculated through consultation with the project implementer and the owner of the land, etc. In such cases, consultation may be made based on the arithmetic mean of the values appraised by at least two appraisal business entities under the Public Notice of Values and Appraisal of Real Estate Act recommended by

2. The legal relationship between a reconstruction association (hereinafter referred to as “association”) and its partners is governed by the relevant Acts and subordinate statutes and the articles of association, a resolution of a general meeting of partners, or an agreement between a cooperative and its partners (see, e.g., Supreme Court Decision 2013Du19486, Dec. 24, 2014). Meanwhile, if a partner becomes subject to cash settlement by failing to apply for parcelling-out or withdrawing an application for parcelling-out, etc., constituting the requirements stipulated in the Urban Improvement Act and the articles of association of the cooperative, he/she shall lose his/her status (see, e.g., Supreme Court Decision 2009Da81203, Aug.

In light of the contents, form, and structure of the Act and subordinate statutes, and the general process in which a project implementer collects charges from owners of land, etc., a cooperative, which is a project implementer, may impose and collect the difference between revenues accrued in the course of implementing a rearrangement project and a rearrangement project pursuant to Article 61(1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions, from its members, including land. However, in cases where a cooperative member becomes a person subject to cash settlement upon meeting the requirements prescribed in the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions, the cooperative is no longer in the position of its members, barring special circumstances, and thus, it cannot impose and collect charges under Article 61(1) of the Act on a person subject to cash settlement, barring any special circumstance. Therefore, if a cooperative’s articles of association, a resolution of the general meeting of its members, or an agreement between the cooperative and its members, etc., did not provide for a certain portion of the cost of the rearrangement project that occurred before the person subject to cash settlement loses its membership, it cannot be separately requested a cooperative to liquidate (see Supreme Court Decision 2075Da75.

3. The reasoning of the lower judgment, the reasoning of the first instance judgment as cited by the lower court, and the evidence duly admitted by the lower court reveal the following facts.

A. The Defendant is a reconstruction association which obtained authorization on July 3, 2008, for the reconstruction of the new reunited apartment with the land ( Address 1 omitted) and the land ( Address 2 omitted) as the project implementation district, for the reconstruction of the new reunited apartment with the land as the project implementation district. The Plaintiff 1 is the owner of the apartment as indicated in the attached Table 1 List 1 of the original judgment (hereinafter “real estate 1”), and the Plaintiff 2 was the owner of the apartment as indicated in paragraph (2) of the same attached Table (hereinafter “second real estate”).

B. On February 5, 2010, the Defendant obtained the approval of the management and disposal plan under the Urban Improvement Act from the Yongsan-si mayor, and publicly announced that the sales contract should be concluded from August 20, 201 to August 26, 201, but the Plaintiffs did not conclude the sales contract within the said period.

C. In order to calculate the cash liquidation amount for those who did not conclude a contract for sale in lots including the plaintiffs, the defendant requested an appraisal corporation's unification and the company virtualization as an appraisal corporation with the recommendation of the acceptable market. The standard value of cash liquidation calculated by calculating the arithmetic mean of the values appraised by both corporations was KRW 27,50,000 in the case of the first real estate, and KRW 300,000 in the case of the second real estate.

D. The Plaintiffs: (a) registered the transfer of ownership based on the trust on April 19, 2010 or on April 26, 2010 on the first and second real estate; and (b) delivered the first and second real estate to the Defendant on May 2010.

E. Prior to the registration of the above trust, the registration of the establishment of the new bank, the secured debt amounting to KRW 130,000,000 on the first real estate, and the second real estate was registered as the new bank, the secured debt amounting to KRW 150,000 on the second real estate, and the secured debt amounting to KRW 150,000,000 on the second real estate. However, the registration of the establishment

F. Meanwhile, Article 10(1)5 of the Defendant’s articles of incorporation provides that “A partner shall bear the obligation to pay expenses, such as rearrangement project costs, liquidation money, dues, late payment charges, late payment charges and late payment losses, etc.,” and Article 43(4) provides that “a partner shall settle in cash a building or other rights within 150 days from the date he/she falls under any of the following cases. The amount shall be calculated by calculating the arithmetic mean of the values appraised by at least two appraisal business operators recommended by the head of a Si/Gun: 1.

4. Based on the above factual basis, the lower court determined that the amount that the Plaintiffs should have borne as a member of the association from among the business expenses of the association that occurred until the Plaintiff lost its membership due to the occurrence of a cause for cash settlement to the Plaintiffs in calculating the liquidation amount to be paid to the Plaintiffs, namely, the amount equivalent to the ratio of the appraised value of the first and second real estate assets of the Defendant’s total business expenses incurred by the end of the period for filing an application for sale,

5. However, the above determination by the lower court is difficult to accept.

The Plaintiffs, as they did not enter into a contract for sale in lots within the period of the contract for sale in lots determined by the Defendant, become a subject of cash settlement pursuant to Article 43(5) of the Defendant’s Articles of incorporation, and are not in the position of its members. Article 10(1)5 of the Defendant’s Articles of incorporation provides that members are obliged to pay expenses for rearrangement projects, etc. However, this provision merely provides for a member’s duty of paying expenses, and does not mean that a person subject to cash settlement should share a certain amount of expenses for rearrangement projects incurred before he/she loses his/her membership. In addition, there is no provision under the Defendant’s articles of incorporation that the person subject

Therefore, the lower court should have deliberated on whether the person subject to cash settlement ought to share a certain portion of the rearrangement project cost that occurred before he/she loses his/her membership, by the resolution of the general meeting of partners or by the agreement between the Defendant and the Plaintiffs. If there is no such resolution or agreement between the Defendant and the Plaintiffs, the lower court should not deduct a certain portion of the rearrangement project cost incurred before the Plaintiffs lose their membership in calculating the liquidation amount to be paid to the Plaintiffs.

Nevertheless, in calculating the settlement money to be paid to the Plaintiffs, the lower court determined that among the Defendant’s business costs incurred until the Plaintiffs lose their membership due to the occurrence of a cause for cash settlement to the Plaintiffs, the amount that the Plaintiffs should have borne as a member should be deducted. In so doing, the lower court erred by misapprehending the legal doctrine on the duty to share the rearrangement project costs in the course of cash settlement by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

6. Therefore, the part of the lower judgment against the Plaintiffs is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)