The meaning of the “public notice date of approval of project implementation” as stipulated in Article 48(1)4 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (=the date of public notice of approval of the first project implementation plan) and where there is a change of the project implementation plan to substantially change the main parts of the first project implementation plan, whether the management and disposal plan formulated based on the previous asset price assessed as of the date of public notice of approval of the first project implementation plan violates

Article 48(1)4, (2)1, (5)1, and (6) (current deletion) 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);

Plaintiff 1 and one other (Law Firm Jae-sung, Attorneys Lee Jae- lodging et al., Counsel for the plaintiff-appellant)

The Intervenor joining the Plaintiff

Daak 2 Housing Reconstruction and Improvement Project Association (Law Firm Rowon, Attorneys Go Jin-do et al., Counsel for defendant-appellant)

Seoul High Court Decision 2014Nu1200 decided September 25, 2014

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Article 48(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”) stipulates that a project implementer (excluding a residential environment improvement project) shall establish a management and disposal plan including the following matters based on the current status of application for parcelling-out under Article 46 and obtain authorization from the head of a Si/Gun, when the period for application for parcelling-out expires under Article 46, one of the matters included in the management and disposal plan under subparagraph 4 shall be determined by applying mutatis mutandis the provisions of Article 48-2(2) to the head of a Si/Gun as of the date of public announcement of the approval for the implementation of the project (in cases of buildings removed under Article 48-2(2) prior to the authorization for the implementation of the project, the price calculated based on the date of obtaining permission from the head of a Si/Gun, and Article 48-2(1) of the former Act provides that the project implementer shall reasonably allocate the land price or housing redevelopment project to be determined under the following guidelines:

In addition to the language, purport, structure, etc. of the above provisions, improvement project, such as redevelopment and reconstruction under the former Act, is a project that the owner of land, etc. in an improvement zone newly constructs multi-family housing, etc. after investing the previous assets, etc., and divides development gains accruing from the sale of remaining multi-family housing, etc. to the general public according to the investment ratio among the members of the association. As the contents of the management and disposal plan, the appraisal of previous assets is for determining the relative investment ratio among the members of the association. ② Article 48(1)4 of the former Act stipulates that the appraisal of previous assets should be made as of the date of public announcement of the project implementation plan as a matter of principle, and it is unreasonable to evaluate the previous assets price as of the date of approval of the previous project implementation plan as of the date of public announcement of the project implementation plan, even if the project implementation plan has been modified, it can be seen that there is no provision that the new appraisal of the previous assets price will have to be changed after the alteration of the previous project implementation plan's project implementation plan's price.

2. The reasoning of the lower judgment reveals the following facts.

A. On December 24, 2002, the defendant association was established with the approval of the head of Jongno-gu Seoul Metropolitan Government by the head of Jongno-gu Seoul Metropolitan Government for the implementation of the housing reconstruction project. The defendant association established the project implementation plan on March 14, 2005 and obtained the approval from the head of the Seoul Metropolitan Government by the head of the Gu, and established the management and disposition plan based on the application for parcelling-out from the members, and obtained the approval from the head of the Seoul Metropolitan Government by the head of the Gu on September 25, 2006.

B. The first project implementation plan was revised and published on three occasions on November 23, 2007 and September 25, 2008 and August 9, 2011 thereafter (hereinafter “final project implementation plan”), and the size of apartment houses, total floor area of apartment houses, number of households of housing scale, etc. compared to the first project implementation plan.

C. After receiving applications for parcelling-out from the members of the association after the approval of the final project implementation plan, on June 2, 2012, at the general meeting to formulate and amend the management and disposal plan on June 2, 2012, the Defendant Union attended 59 members of the association and resolved to revise the above management and disposal plan with the consent of 48 members, and the head of Jongno-gu Seoul Metropolitan Government approving the amendment of the above management and disposal plan on July 9, 2012 (hereinafter

D. Meanwhile, in establishing the instant management and disposal plan, the Defendant Union used the appraised value of the previous asset price as it is on March 14, 2005, which was the date of the first public notice of project implementation authorization.

3. Examining these facts in light of the legal principles as seen earlier, even if the main contents of the initial project implementation plan were to be substantially changed, such circumstance alone cannot be deemed as unlawful of the instant management and disposal plan established based on the previous asset price assessed based on the public notice date of approval of the initial project implementation plan.

Nevertheless, on different premises, the lower court determined that the instant management and disposition plan was unlawful on the ground that the price of the previous assets was prepared based on the price of the previous assets appraised as of the announcement date of approval of the initial project implementation plan, without evaluating the price of the previous assets as of the announcement date of approval of the initial project implementation plan. In so determining, the lower

4. Therefore, the lower judgment is reversed, and 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 Kim So-young (Presiding Justice)