209Guhap5655 Approval for the establishment of an association

Maximum 00

The head of Dongjak-gu Seoul Metropolitan Government

Promotion Committee for the Establishment of Housing Redevelopment and Improvement Project Cooperatives in Zone 7

April 1, 2010

May 13, 2010

1. The plaintiff (designated party)'s claim is dismissed.

2. The costs of the lawsuit shall be borne by the Plaintiff (Appointed Party) including the cost of participation.

On November 22, 2004, the defendant confirmed that the establishment approval disposition of the committee for the redevelopment project partnership against the defendant joining the defendant is invalid.

1. Details of the disposition;

A. On June 25, 2004, the Mayor of Seoul Special Metropolitan City formulated and publicly announced a master plan for urban and residential environment improvement (housing redevelopment project and residential environment improvement project) with the content that he/she designates the area of housing redevelopment as the area of housing redevelopment as the area of housing redevelopment under Article 204-204 of the Seoul Special Metropolitan City Notice No. 2004-204, Dong 159- Japan, Dongjak-gu, Seoul Metropolitan Government 47,924m of Dong 159- Japan (hereinafter referred to as the "area of housing redevelopment project and residential environment improvement project").

B. On November 10, 2004, the Defendant requested the Defendant to grant approval for the establishment of an association to implement a housing redevelopment project (hereinafter referred to as the “promotion committee”) in the zone where the instant rearrangement project is planned, and the Defendant rendered the instant disposition against the Defendant on November 22, 2004, on the ground that he obtained the consent of a majority (28 persons among the total 363 persons, 62.81% of the building owners or superficies) from among the owners of the land in the instant prearranged zone and the building in the instant zone, and Article 13(2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7392, Mar. 18, 2005; hereinafter referred to as the “former Urban Improvement Act”) and Article 6 of the former Enforcement Rule of the Urban Improvement Act.

C. On February 16, 2006, the Mayor of Seoul Special Metropolitan City announced a change in the Seoul Special Metropolitan City's basic plan for the improvement of urban and residential environment (Housing redevelopment project and residential environment improvement project) with the content that the residents' opinions were reflected during the period of public inspection and announcement as to the designation of the housing redevelopment project zone (not known) and the connection with the neighboring urban planning project, etc., should be additionally incorporated into the project zone and the size of the planned improvement area should be expanded from 4.9 to 5.4 fourth. The Seoul Special Metropolitan City announced the change of the basic plan for the improvement of urban and residential environment (Housing redevelopment project and residential environment improvement project) as the Seoul Special Metropolitan City Notification No. 2006-291, 159, 55, 618 (hereinafter referred to as the "maintenance zone") as the Seoul Special Metropolitan City Notification No. 2006-291 on August 24, 2006.

D. Meanwhile, the Intervenor joining the Defendant submitted a written consent to the establishment of the Committee from 68 persons among 90 persons who own or own land or buildings in the said expanded zone.

E. The designated parties including the Plaintiff (designated parties), including the Plaintiff (designated parties), are limited to the land, etc. in the instant rearrangement zone.

[Ground of recognition] Unsatisfy, Gap evidence 1, 8, 9, Eul evidence 1 to 3, Eul evidence 6 to 14, the purport of the whole pleadings and arguments

2. Whether the disposition is lawful;

A. The plaintiff's assertion

On the premise that a committee for the promotion of housing redevelopment project is to be organized, the status of the owner of a plot of land, etc. should be determined. Since the scope of the owner of a plot of land, etc. is determined after the designation and public notice of a housing redevelopment project zone, it is evident that the approval for establishment of a committee for the promotion of housing redevelopment project zone should be possible after the designation and public notice of a housing redevelopment project zone. On the contrary, if the approval for establishment of a committee for the promotion of housing redevelopment project zone is allowed before the designation and public notice of a housing redevelopment project zone is designated and public notice of a plan for the promotion of housing redevelopment project, it is difficult to permit the approval for establishment of a committee for the promotion of housing redevelopment project conducted without the designation and public notice of a rearrangement zone, and the legal status of the owners of a plot of land, etc. in the zone is considerably likely to be unfairly affected. Accordingly, the permission for establishment of the committee for the promotion of housing redevelopment project conducted without the designation and public notice of a housing redevelopment project zone is invalid.

(b) Relevant statutes;

As shown in the attached Form.

C. Determination

(1) In order for an administrative disposition to be called an invalidation as a matter of course, only if there is an illegality in the disposition, is insufficient, and the defect is serious in violation of the essential part of the law and is so objectively obvious.

(2) Whether there is a material defect

Article 13 (1) and (2) of the former Act on the Improvement of Urban and Residential Environments (amended by Act No. 9444 of Feb. 6, 2009) provides that "where a person, other than the head of a Si, the head of a Gun, or the Korea Housing Corporation, intends to implement a rearrangement project, an association consisting of landowners, such as land, shall be established; where such association is to be established, a council for the promotion of the establishment of an association shall be organized with the consent of a majority of owners of land, etc. and the approval of the head of a Si, Gun shall be obtained; and Article 2 subparagraph 9 (a) of the same Act provides that "the owner of land, etc." means the owner of land or building located in a rearrangement zone or the person with superficies thereof, and Article 4 (1) and (2) of the same Act

The head of a Si/Gun shall formulate an improvement plan including an improvement zone and its area, etc., apply for the designation of an improvement zone to the Mayor/Do Governor, and the Mayor/Do Governor shall designate and publicly announce the improvement zone and publicly announce the improvement zone.

In full view of these provisions, in order to establish an association establishment promotion committee with respect to various maintenance businesses under the Act on the Improvement of Urban Areas, such as Housing Redevelopment Projects, it is necessary to determine the scope of "owner of land, etc." under such premise, and in addition, in order to determine the scope of "owner of land, etc.", it is reasonable to interpret that the designation and announcement of a rearrangement zone by the Special Metropolitan City Mayor, the Metropolitan City Mayor, or the Do governor should be prior to the designation and announcement of a rearrangement zone even if a zone is designated

The approval of establishment is illegal.

As to this, the defendant stipulated that Article 13 (2) of the Act on the Maintenance and Improvement of Urban Areas (amended by Act No. 9444 of Feb. 6, 2009) stipulates the timing of organization of the promotion committee as after the designation and announcement of the improvement zone and Article 3 of the Addenda of the Act applies the above provision from the first application date for approval of the promotion committee after this Act enters into force, and the provisions of Article 6 of the Ordinance on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 944) of the Ministry of Construction and Transportation (amended by Act No. 944) stipulate that the above provision can be applied to the establishment of the promotion committee even before the designation of the improvement zone as well as before the designation of the improvement zone. However, in light of the relevant provisions prior to the amendment, it can be interpreted that the above provision of the Act on the Maintenance and Improvement of Urban Areas (amended by Act No. 1900, Feb. 6, 2009) is not subject to the above amendment of the Act.

However, as seen earlier, the Defendant only designated and publicly announced the instant rearrangement zone, but the instant disposition against the Defendant’s Intervenor on November 22, 2004, which was prior to the designation and public notice of the rearrangement zone, was made. As such, the instant disposition was rendered against the Defendant’s Intervenor, and thus, there is a significant defect for which approval for establishment was made before the rearrangement zone was designated and publicly notified.

(3) Whether it is objectively apparent defect

On the other hand, regarding whether the defects in the dispositions in this case conducted before the designation and dismissal of the rearrangement zone was significant and obvious despite the designation and announcement of the rearrangement zone as above, Article 13 (2) of the former Act does not explicitly stipulate the timing for composition of the promotion committee, and Article 2 subparagraph 9 (a) and Article 13 (1) and (2) of the former Act does not explicitly stipulate the timing for composition of the promotion committee, so that the joint establishment promotion committee is constituted, the designation and announcement of the rearrangement zone should be prior to the designation and announcement of the improvement zone. The statutory interpretation was not clearly clear (such, because of the amendment of the Urban Improvement Act on February 6, 2009, Article 13 (2) stipulated the timing for composition of the promotion committee of the establishment of the promotion committee, and Article 3 of the Addenda of the same Act does not apply to the establishment of the promotion committee for the first time after the enforcement of the above amended Act).

On December 28, 2003, preparing the Ministry of Construction and Transportation, which is the administrative working rules prepared to conduct affairs, the standards for handling affairs of the self-management association establishment promotion committee are not formulated, and in the case of a Si which is not subject to the establishment of the master plan for urban and residential environment improvement, the master plan for urban and residential environment improvement is determined to allow approval for the promotion committee after determining the rearrangement zone, while urban and residential environment improvement is possible.

Article 6(1) of the former Ordinance on the Improvement of Urban Areas and Residential Environments (amended by Act No. 4359, Jan. 1, 2006) provides that if the head of the Gu intends to formulate a non-permanent zone at the request of residents, he/she shall obtain the consent of at least 2/3 of the owners of the land, etc. (Article 6(1) of the same Ordinance amended by Ordinance No. 4359, Jan. 1, 2006, which is amended by Ordinance No. 4359, changed to the head of the competent Si/Gun to formulate a plan for the designation of a non-permanent zone for the improvement of the 6th improvement zone, even if it appears that the designation of a non-permanent zone is possible after reflecting the basic plan, and that there is no confusion between the owners of the land, etc. and the owner of the land, etc. who will be entitled to obtain approval for the designation of a non-permanent zone for the improvement zone.

In full view of the status of the owner of a plot of land, etc. within the zone or the status of the owner of a plot of land, etc., even if the Urban Improvement Act was amended on February 6, 2009 and the time of organizing the promotion committee has been clearly determined and publicly announced before the time of organizing the promotion committee, the improvement zone is designated and publicly announced.

Before this designation and public notice, the legal interpretation that the approval for establishment of the promotion committee cannot be granted can not be said to have been objectively apparent.

(4) Sub-decisions

Therefore, even though the instant disposition was designated and publicly announced as the zone to be rearranged, there is any defect in the approval for establishment of the committee before the rearrangement zone is designated and publicly announced, but it cannot be objectively apparent that the defect is not obvious. Thus, the Plaintiff (the Plaintiff), who is the immediate invalidation of the instant disposition, is selected.

We do not accept the assertion of the parties.

3. Conclusion

Thus, the plaintiff (designated party)'s claim is dismissed as it is without merit.

Judges of the presiding judge 000

Judges 000

Judges 000

List of Selections

1. Maximum 00 others and 2 others;

Related Acts and subordinate statutes

Gu Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7392 of March 18, 2005)

Article 2 (Definitions of Terms)

9. The term "owner of a plot of land, etc." means the following persons:

(a) In cases of a residential environment improvement project or a housing redevelopment project or an urban environment improvement project, within a rearrangement zone;

The owner or superficies of the land or building located;

Article 3 (Formulation of Master Plans for Urban Residential Environment Rearrangement)

(1) The Special Metropolitan City Mayor, Metropolitan City Mayors or the heads of Sis shall develop a residential environment improvement plan including the following:

(hereinafter referred to as the “basic plan”) shall be established every ten years: Provided, That such actions as prescribed by the Presidential Decree shall be established.

In cases of scale, the master plan may not be formulated.

8. Outline extent of zones scheduled to be designated as the rearrangement zone under Article 4;

(3) The Special Metropolitan City Mayor, Metropolitan City Mayors or heads of Sis shall formulate or modify the basic plan referred to in paragraph (1).

for at least 14 days to the residents, and after hearing the opinions of the local council, the National Land Planning and Utilization Ordinance;

A local urban planning committee pursuant to the provisions of Article 113 (1) and (2) of Korea-China Act (hereinafter referred to as the “local urban planning committee

shall undergo deliberation by the Council: Provided, That any modification to insignificant matters prescribed by the Presidential Decree shall be made;

50,000,000

Article 4 (Formulation of Rearrangement Plans and Designation of Rearrangement Zones)

(1) The head of a Si/Gun shall concentrated buildings inferior to aging within the extent consistent with the basic plan, etc. prescribed by Presidential Decree.

A rearrangement plan including the following matters shall be formulated for a zone meeting the requirements prescribed:

The opinions of the local councils shall be made available to residents for at least 14 days, and the opinions of the local councils shall be attached thereto and determined to

An application for designation of a non-area shall be filed, and where it is necessary to modify the details of the improvement plan, the same procedure shall be applied.

An application for modified designation shall be filed through a modified designation: Provided, That any modification to insignificant matters prescribed by Presidential Decree shall be made.

this provision shall not apply in the case.

2. Rearrangement zone and its size;

(2) Where the Mayor/Do Governor intends to designate or change an improvement zone, he/she shall formulate a local urban

The designation or change of designation shall be made after deliberation.

(3) Where a Mayor/Do Governor designates or alters an improvement zone under paragraph (2), he/she shall maintain the relevant improvement zone.

Public notice of the details of designation or alteration including the plan, in the public bulletin of the local government

After completing the meeting, the Minister of Construction and Transportation shall designate it to the Minister of Construction and Transportation pursuant to methods and procedures.

The contents of use or alteration shall be reported.

(4) Where public announcement is made for the designation or alteration of a rearrangement zone under paragraph (3), the relevant determination.

Private companies falling under any of subparagraphs of Article 52 (1) of the National Land Planning and Utilization Act among the non-area and improvement plans;

The Class-I district unit planning and Class-I district unit planning zone under the provisions of Articles 49 and 51 of the same Act.

such decision shall be deemed to have been announced publicly.

Article 13 (Establishment of Partnership and Composition of Promotion Committee)

(1) Where a person other than the Mayor, the head of a Gun or the Korea Housing Corporation intends to implement a rearrangement project, land ownership.

An association shall be established: Provided, That the owners of lands, etc. under Article 8 (3) shall be the owners of lands, etc.

Where urban environment improvement projects are to be independently executed, this shall not apply.

(2) Where it is intended to establish an association under paragraph (1), it shall obtain consent of a majority of the owners of lands, etc.

(1) A committee of promoters (hereinafter referred to as "committee of promoters") shall be comprised of five or more members, including the chairperson.

C) by organizing B and obtaining approval from the head of Si/Gun in accordance with the methods and procedures prescribed by Ordinance of the Ministry of Land, Transport

of this section.

Article 14 (Functions of Promotion Committee)

(1) Every promotion committee shall perform the following duties:

3. Preparation of a rough implementation plan for a rearrangement project;

4. Preparatory affairs for obtaining authorization to establish a cooperative;

Gu Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444 on October 02, 2009)

Article 4 (Formulation of Rearrangement Plans and Designation of Rearrangement Zones)

(1) The head of a Si/Gun shall concentrate on old and inferior buildings within the extent consistent with the basic plan, etc., as prescribed by Presidential Decree.

A rearrangement plan including the following matters shall be formulated for a zone meeting the requirements prescribed:

Resident briefing sessions and residents for at least 30 days shall be made available to the local council, and the opinions of the local council shall be heard.

the head of the Si/Gun shall present his/her opinion within 60 days from the date on which the head of the Si/Gun has notified the improvement plan.

Where 60 days have elapsed without the Si, it shall be deemed that there is no objection thereto) attached and determined to the Mayor/Do Governor.

An application for designation of a non-area shall be filed, and where it is necessary to modify the details of the improvement plan, the same procedure shall be applied.

An application for modified designation shall be filed through a modified designation: Provided, That any modification to insignificant matters prescribed by Presidential Decree shall be made.

In such cases, the procedures for the explanation of residents, public inspection of residents and the hearing of opinions of the local council may not be followed.

2. Rearrangement zone and its size;

(3) The owners of land, etc. shall comply with paragraph (1) in any of the following cases:

It may propose the formulation of a rearrangement plan, and in such cases, the Dong of the owner of the land, etc. for the proposal of the rearrangement plan.

Matters necessary for the significance, the settlement of proposals, etc. shall be prescribed by Presidential Decree.

The timing for the establishment of the maintenance plan in accordance with the maintenance project promotion plan by phase under Article 3 (1) 9 shall be one year (Si/Do Article)

Notwithstanding the lapse of at least more than one year in the event that an example is determined by his/her or more training;

Where an improvement plan has not been formulated;

2. Where the owners of land, etc. intend to request the Housing Corporation, etc. to implement a project under Article 8 (4).

3. Cases prescribed by municipal ordinance of a Si/Gun which is not a large city.

Article 13 (Establishment of Partnership and Composition of Promotion Committee)

(1) Where a person other than the Mayor, the head of a Gun or the Housing Corporation, etc. intends to implement a rearrangement project,

An association comprised of relics shall be established: Provided, That discussions on urban environment improvement projects under Article 8 (3) shall be conducted;

If the land owner wishes to execute a project, this shall not apply.

(2) When intending to establish an association pursuant to paragraph (1), public announcement of designation of an improvement zone under Article 4 shall be made.

In cases of a housing reconstruction project in a zone other than such zone, the time for a housing reconstruction project under Article 12 (5).

At least five members, including the chairperson, and the operating rules under Article 15 (2) after the issuance of a decision of conduct

National land damage by organizing a promotion committee for establishing an association with consent of a majority of the owners of lands, etc.

The approval of the head of Si/Gun shall be obtained according to the methods and procedures prescribed by Ordinance of the Ministry of Construction and Transportation.

The Addenda No. 9444, February 6, 2009

This Act shall enter into force on the date of its promulgation: Provided, That the amended provisions of Article 4 (3) and (11), Article 5 (7), the part other than the subparagraphs of Article 8 (4), Articles 11 (3), 12, 13, 14 (2) and (3), 19 (1), 26, 28, and 40 (1) shall enter into force on the date on which six months have passed after the date of its promulgation.

The amended provisions of Article 13 (2) shall apply to the portion for which the first application for approval of the composition of the promotion committee is filed after this Act enters into force: Provided, That where an application for approval of the composition of the promotion committee is filed within three months from the enforcement date of this Act after obtaining such approval from the owners of land, etc. under the previous provisions, it shall be deemed an application for approval of legitimate composition of the promotion committee under this Act.

Article 9 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. 20947 of July 29, 2008)

(1) The Special Metropolitan City Mayor, Metropolitan City Mayors or the heads of Sis shall, when they intend to make the basic plan available for public perusal to residents pursuant to the main sentence of Article 3 (3) of the Act, announce in advance the outline and place of such public perusal in the official gazette and the Internet (hereinafter referred to as "official gazette, etc.") of the relevant local government, and shall keep related documents

(2) Article 31 (2) and (3) of the Act shall apply mutatis mutandis to the public perusal under paragraph (1). In such cases, "owners of a plot of land, etc., members of a plot of land, etc., and other persons who have an interest in a rearrangement project" shall be construed as "resident", and "head of a Si/Gun" as "Special Metropolitan City Mayor, Metropolitan City Mayors, or

Article 7 (Scope of Sis Not Required to Formulate Master Plans)

The term "small-scale Si prescribed by Presidential Decree" in the proviso to the part other than the subparagraphs of Article 3 (1) of the Act means a Si with a population of less than 500,00: Provided, That the Si designated by the Do Governor as being necessary to establish the main plan for the maintenance of the residential environment (hereinafter referred to as the "basic plan") under Article 3 (1) of the Act shall be excluded.

Article 6 of the former Enforcement Rule of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 79 on December 17, 2008)

A person who intends to implement a rearrangement project (hereinafter referred to as "improvement project") under subparagraph 2 of Article 2 of the Act and who intends to obtain approval for the establishment of an association establishment promotion committee under Article 13 (2) of the Act (hereinafter referred to as "promotion committee") shall submit an application for approval for the establishment promotion committee in attached Form 2 to the head of a Si/Gun, along with the following documents:

2. Consent letters of the owners of land, etc.;

Seoul Special Metropolitan City Ordinance on the Improvement of Urban and Residential Environments (amended by Ordinance No. 4359 of January 1, 2006)

Of those)

Article 6 (Residents' Proposal to Formulate Designation of Rearrangement Zone)

(1) Article 5 (7) shall apply where the head of the Gu intends to formulate a designation of an improvement zone at the request of residents.

Consent under this Act shall be obtained from two-thirds or more of the owners of a plot of land, etc.

(2) Article 28 of the Decree shall apply to the methods and procedures for calculating the number of consenters referred to in paragraph (1).

end. The end.

/Gu Ordinance on the Improvement of Urban and Residential Environments (amended by Ordinance No. 4359, Jan. 1, 2006)

Article 6 (Residents' Proposal to Formulate Designation of Rearrangement Zone)

(1) A committee for establishing an association approved pursuant to Article 13 of the Act on the Improvement of Urban and Residential Environments shall have jurisdiction over the committee.

The head of the Gu may propose the formulation of an improvement zone designation to the head of the Gu.

(2) Notwithstanding paragraph (1), designation of rearrangement zones shall be made to the head of the competent Gu.

A proposal for drafting may be made. In such cases, consent of at least 2/3 of the owners of the lands, etc. in the relevant area shall be obtained.

of this section.

(3) The methods and procedures for calculating the number of persons who consent under paragraph (2) shall apply mutatis mutandis to the provisions of Article 28 of the Decree, and persons who consent to the composition of an association establishment promotion committee under Article 13 (2) of the Act shall be deemed to consent to the formulation of a rearrangement zone