[1] In a case where a reconstruction association under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents makes a claim for sale to a person who owns only a parcel of land or building within a “area which is not a housing complex”, whether it should go through the highest procedure under Article 48(1) of the Act on the Ownership and Management of Aggregate Buildings

[2] Court's explanation and cadastral duty as to legal matters

[1] Articles 2 subparag. 7 and 9(b), 16(3), 19(1), and 39 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785 of Dec. 21, 2007), Article 48(1) of the Act on the Ownership and Management of Aggregate Buildings / [2] Article 136(1) and (4) of the Civil Procedure Act

[1] Supreme Court Decision 2006Da56572 Decided February 29, 2008 / [2] Supreme Court Decision 2001Da11055 Decided January 25, 2002 (Gong2002Sang, 559) Supreme Court Decision 2005Da6403 Decided April 27, 2007 (Gong2008Da45187 Decided December 11, 2008 (Gong2009Sang, 27)

Suwon 1 Housing Reconstruction and Improvement Project Association (Law Firm Square, Attorneys Yu-hee et al., Counsel for the plaintiff-appellant)

Defendant 1 and three others (Law Firm Sejong, Attorneys Jeon Ha-soo, Counsel for the defendant-appellant)

Daegu High Court Decision 2009Na2829 Decided October 23, 2009

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

The grounds of appeal are examined.

1. (1) The court below affirmed the judgment of the court of first instance that dismissed the plaintiff's right to demand sale against the defendant 1, 2, and 4 (hereinafter "Defendant 1, etc.") who did not consent to the establishment of the association because the plaintiff, a housing reconstruction improvement project association under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785, Dec. 21, 2007; hereinafter "former Act") only owns the land in the rearrangement zone, without following the peremptory notice procedure under Article 39 of the former Act. Although the plaintiff exercised the right to demand sale within 2 months from December 22, 2006, the date of the establishment registration of the association of this case, the date of the establishment of the association of this case, which was more than 2 months prior to the date of the registration, since the plaintiff's right to demand sale was unlawful, and the plaintiff's right to demand sale against the defendant 1, etc. was dismissed as it is without legitimate consent to the plaintiff's right to demand sale.

2. However, the lower court’s determination is difficult to accept for the following reasons.

A. As to Defendant 1, etc.

(1) Article 19(1) of the former Act provides that 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 “owners of land, etc.” In the case of a housing reconstruction project, “owners of land, etc.” shall be “owners of buildings and appurtenant land prescribed by Presidential Decree and the owners of appurtenant, welfare facilities and the land attached thereto located in a rearrangement zone other than a rearrangement zone,” and Article 16(3) of the same Act provides that “the owners of buildings and appurtenant lands prescribed by Presidential Decree and the owners of appurtenant, welfare facilities and the persons who are owners of appurtenant, etc.,” and Article 16(3) of the same Act provides that when an area other than a housing complex is included in a rearrangement zone, at least 4/5 of the owners of land or buildings within an area other than a housing complex and at least 2/3 of the land area shall obtain consent of owners of land within a rearrangement zone. Article 2 subparag. 7 of the same Act provides that “the housing complex and appurtenant and welfare facilities” shall be entrusted with the approval of a project plan.

Meanwhile, Article 39 of the former Act provides that a project implementer may file a claim for sale by applying mutatis mutandis the provisions of Article 48 of the Act on Ownership and Management of Condominium Buildings (hereinafter “Act on Ownership and Management of Condominium Buildings”) to the land and buildings of a person (including a person who owns only a building or land; hereinafter the same shall apply) who does not consent to the establishment of an association pursuant to Article 16(2) and (3) while implementing a housing reconstruction project, and Article 48(1) of the Act on Ownership and Management of Condominium Buildings (hereinafter “Act on Ownership and Management of Condominium Buildings”), and Article 48(1) of the Act on Ownership and Management of Condominium Buildings (hereinafter “Act on Ownership and Management of Condominium Buildings”), and Article 48(1) of the Act on Ownership and Management of Condominium Buildings shall give written notice

(2) In full view of the above provisions, in a case where only a parcel of land is owned in a housing complex for the implementation of a housing reconstruction project under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, and is not the other party to the consent to establish an association, it is not legally interested in the highest procedure stipulated in Article 48(1) of the Act on the Construction and Management of Aggregate Buildings. Thus, in a case of a claim for sale against such person, even without the highest procedure prior to the request for sale, the claim for sale against such person cannot be deemed unlawful or invalidated (see Supreme Court Decision 2006Da56572, Feb. 29, 2008). However, in order for a reconstruction association to obtain authorization for the establishment of an association, a parcel of land or building owner located in a housing complex within a housing complex shall obtain the consent of the owner of the land which is not a housing complex pursuant to Article 16(3) of the former Act. Therefore, it is reasonable to deem that such person has a legal interest in the highest procedure stipulated in Article 48(1) of the Act.

According to the facts acknowledged by the court below based on its adopted evidence, Defendant 1, etc. owned the land in the "area other than a housing complex" which is included in the rearrangement zone for the housing reconstruction project of this case. In such a case, the court below should have judged the propriety of the claim for the transfer registration of ownership of this case by examining whether the plaintiff filed a claim for sale within the period of reply and the period of exercise of the claim for sale in accordance with the above legal principles after going through the due peremptory procedure stipulated in Article 48(1) of the Multi-Family Building Act. However, the court below decided that Defendant 1, etc., who is the landowner, need not take the highest procedure against the plaintiff 1, etc., and dismissed the claim for sale registration of the plaintiff association only on the ground that the plaintiff did not exercise the right to claim sale within two months from the time when the establishment registration of the association was completed. The court below erred in the misapprehension of legal principles as to the exercise of the right to claim sale of the housing

B. As to Defendant 3

In a case where a party’s assertion is clearly unreasonable due to negligence or misunderstanding, or where the party’s assertion is unclear or incomplete or contradictory from a legal point of view, the court shall actively exercise its right of explanation to provide the party with an opportunity to state his/her opinion. If a trial based on a legal point of view that the party had not been able to anticipate at all, and the party’s rhe/she did not perform his/her duty of explanation or cadastral obligation and thereby, it is unlawful (see Supreme Court Decisions 2001Da11055, Jan. 25, 2002; 2005Da64033, Apr. 27, 2007, etc.).

Examining the proceedings in the court of first instance and the court of first instance which revealed the record, the full bench of this case urged "whether to exercise the right to demand sale following the resolution of the previous establishment of the association or whether to exercise the right to demand sale following the resolution of the new establishment of the association or exercise all of them," through an order to make a tin preparation on November 27, 2008. Accordingly, the plaintiff argued to the effect that, through the statement of legal brief dated December 15, 2008, the plaintiff, including defendant 3, seeking a registration of ownership transfer following the new establishment of the association through the peremptory procedure, based on the consent to the establishment of the new association. At the fifth date of the court of first instance, the court of first instance submitted "in addition to the preliminary claim for sale by adding the exercise of the right to demand sale based on the new reconstruction resolution," and that the court of first instance did not provide the defendant 3 with an opportunity to modify the purport of the right to demand sale without giving it an opportunity to do so, which affected the plaintiff's right to demand sale.

3. Therefore, without examining the remaining grounds of appeal by the Plaintiff, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)