Where the board of representatives of a housing redevelopment association disposes of the reserved land in the manner prescribed by the management and disposition plan, the validity of the disposition (Invalidity) and the validity of the articles of association provisions of the association contrary to the management and disposition plan (Invalidity

Under the former Urban Redevelopment Act (amended by Act No. 5116 of Dec. 29, 1995), the method of disposal of reserved land was classified as a management and disposal plan and separate resolution, and the method of disposal of reserved land was stipulated to enable the board of representatives to pass a resolution by proxy. Under the former Urban Redevelopment Act (amended by Act No. 5288 of Jan. 13, 1997), the resolution of the general meeting of partners and the disposal disposition of reserved land included in the management and disposal plan authorized by the competent authorities, in principle, shall not be effective in cases where the method prescribed by the management and disposal plan is not followed, and the articles of association of an association, which are contrary to such management

Articles 18 (see current Article 24 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents), 34 (see current Article 48 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents), and Article 41 (see current Article 50 of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents) of the former Urban Redevelopment Act (amended by Presidential Decree No. 15359, Apr. 25, 1997)

Plaintiff Housing Improvement Development Cooperatives (Law Firm LLC, Attorneys Yellow-jin et al., Counsel for the plaintiff-appellant)

Defendant 1 (Attorney Noh Jeong-bong et al., Counsel for the defendant-appellant)

Defendant 2 (Law Firm Woo, Attorneys Lee Im-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2006Na87431, 87448, 87455 decided March 30, 2007

The part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the Seoul High Court. Defendant 2’s appeal is dismissed. The costs of appeal between the Plaintiff and Defendant 2 are assessed against the said Defendant.

The grounds of appeal are examined (to the extent of supplement in case of Defendant 2’s supplemental appellate brief not timely filed).

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

Comprehensively taking account of the adopted evidence, the lower court prescribed the following: (a) on September 30, 1991, the Plaintiff’s association established for a housing redevelopment project of the size of 60,90 square meters designated as a housing improvement redevelopment district under the former Urban Redevelopment Act (amended by Act No. 5116, Dec. 29, 195; hereinafter “former Act”); (b) and (c) on February 12, 2001, the Plaintiff association’s representative meeting, which was dissolved by a resolution of the board of representatives and is undergoing liquidation procedures as of January 9, 1998; and (d) on February 12, 1998, the Plaintiff association’s reserved land in the reserved land of the Plaintiff association, which was allotted to 15 persons including the Defendants, under Article 1 of this case’s Articles of association, and (e) determined that the method of disposition by the Plaintiff association’s general meeting under the provisions of Article 30 subparag. 2 of the Urban Redevelopment Act, with respect to the method of disposition by proxy of the Plaintiff association’s general meeting under Article 301 of the Urban Redevelopment Act.

In addition, the lower court determined that the Plaintiff’s association’s disposal of the reserved land constitutes an unlawful and invalid resolution of the Plaintiff’s association’s 1/20 of the former Urban Redevelopment Act (amended by Act No. 516, Dec. 29, 195; hereinafter “amended Act”), Article 18(1), Article 34(4) and (9), Article 41 of the Enforcement Decree of the said Act (amended by Presidential Decree No. 15096, Jun. 29, 196); and Article 47(2) of the Articles of the Plaintiff association’s association’s association’s establishment of a resolution of the board of representatives’ meeting on the sole ground that the resolution of the board of representatives of the Plaintiff association’s disposal association’s disposal of the reserved land constitutes an unlawful and invalid resolution of the Plaintiff association. Article 18(1) of the amended Act provides that the resolution of the board of representatives of the Plaintiff association’s disposal association’s disposal of the remaining land subject to the resolution of the general meeting shall be excluded from the amendment’s resolution of Article 19(2).

First, the argument regarding the legal act against social order among the grounds of appeal is merely an error with the selection of evidence and fact-finding belonging to the exclusive jurisdiction of the court below, which is a fact-finding court, and it does not constitute a legitimate ground of appeal. Therefore, this part of the grounds of appeal

Next, Article 18(1) of the amended Act provides that the resolution of the general meeting of partners shall include a management and disposal plan. Article 34(4), (9), and (10) of the Enforcement Decree of the same Act provides that six provisions, including design for sale, address and name of a person subject to sale, and other matters prescribed by the Presidential Decree, may be determined or sold to the general public for the purposes prescribed by the rules, articles of incorporation, implementation rules, project implementation plans, etc. concerning the remainder after receiving the application for parcelling-out, and the site and constructed facilities due to the implementation of the redevelopment project shall be disposed of or managed by the management and disposal plan. Article 19(2) provides that the board of representatives may exercise the authority of the general meeting of partners, but exceptionally, matters prescribed by the Presidential Decree among the resolution of the general meeting of partners cannot be performed by proxy. Article 25 of the Enforcement Decree of the same Act provides that the resolution of the general meeting of partners cannot be carried out by proxy, and Article 34(4)6 of the amended Act provides that the resolution of the general meeting of partners and the reserved land shall not be carried out by proxy.

However, according to the records of this case, it can be seen that the plaintiff association decided to dispose of the reserved land in the management and disposal plan approved by the competent authority on October 21, 1996, which was after the establishment of the association and the approval of the project implementation of the association on September 30, 1991 after the establishment of the association and the approval of the project implementation of the association. In light of the provisions and purport of the Act on the Amendment of the Method of Disposal of Reserved Land, as seen above, the contents of such management and disposal plan are clearly understood to the purport that the disposal authority of the reserved building is at the general meeting and that the decision of the general meeting can be deferred in the future. It is difficult to view that the dispute about the disposition is to be resolved by the general meeting with the intention of setting the contents of the management and disposal plan to be resolved within the scope of the reserved land in reservation and the resolution of the general meeting on the disposal and disposal plan, which was enacted within the scope of the resolution of the plaintiff association's 2002.

Nevertheless, the lower court’s rejection of the Plaintiff’s assertion in this part without examining the validity of the resolution of the general assembly on December 27, 1996, which was asserted by the Defendants, without examining the contents and purport of the pertinent statutes and the instant management and disposition plan in detail, and by determining that the disposition of the reserved land in this case is valid only by its independent resolution of the board of representatives based on only some provisions of the relevant statutes, and thereby, it erred by misapprehending the legal doctrine on the validity of the disposition of the reserved land in violation of the amended management and disposition plan, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

The ground of appeal pointing this out is with merit.

2. As to Defendant 2’s ground of appeal

The court's exercise of the right to ask for a statement shall be made to supplement the statement of the party when it is impossible to know the purport of the statement due to any inconsistency or defect or omission, or to urge the party who has the burden of proof to prove it. The court's solicitation of submission of the requirement of legal effect or method of attack and defense which the party did not assert, and the same act is not allowed since it violates the principle of pleading (see Supreme Court Decision 99Da24256 delivered on May 10, 2002, etc.).

According to the records, Defendant 2 had the opportunity to dispute the Plaintiff’s assertion that the apartment supply contract of this case was null and void as a juristic act contrary to social order, and in fact, it seems to have proved it, and even if the opportunity to exercise the right of defense of simultaneous performance was sufficient, it was recognized that it was not asserted at all by the closing date of argument in the original trial. Therefore, in determining that the conclusion of the supply contract of this case between Defendant 2 and the Plaintiff’s association is null and void as a juristic act contrary to social order, there was no error of incomplete deliberation

On the other hand, the preparation of evidence and fact-finding belong to the full power of the fact-finding court, and this cannot be deemed a legitimate ground for appeal unless it goes beyond the limit of the principle of free evaluation of evidence. The above defendant's other grounds for appeal are merely erroneous in the judgment of the court below or erroneous in the judgment of the court below on the premise of facts different from the facts recognized by the court below, and they cannot be deemed a legitimate ground for appeal.

3. Conclusion

Therefore, the part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. Defendant 2’s appeal is dismissed, and the costs of appeal are assessed against the Defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)