Plaintiff 1 and 119 others (Attorney Cho Jong-hwan et al., Counsel for the plaintiff-appellant)

Defendant Reconstruction Association (Law Firm, Kim & Lee, Attorneys Park Jong-chul et al., Counsel for the defendant-appellant)

October 18, 2007

1. The defendant's annual meeting held on August 11, 2006 that each resolution on "building ruling" in subparagraph 1, "case of approval of a management and disposition plan (draft), and "case of approval for modification of a business plan" in subparagraph 6, among the agenda items for the general meeting of shareholders of August 11, 2006 is invalid.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 25% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

In the case of paragraph (1) of this Article and the defendant's general meeting of August 11, 2006, the resolution on "cases of delegation of matters subject to the resolution of the general meeting" in subparagraph 10 of Article 10 is invalid.

1. Basic facts

The following facts may be found either in dispute between the parties or in Gap evidence Nos. 1, 2, 3, 7, 8, 9, and Eul evidence Nos. 3 and 4 (including serial numbers), by integrating the whole purport of the pleadings.

A. Status of the parties

The defendant is a cooperative whose members are those who agree to the reconstruction among the sectional owners of 55 households (114 Dong, 118 Dong, 115 Dong, 117 Dong, 116 Dong, 117 Dong, 117 Dong Dong, 117 Dong, 118 Dong Dong and 96 households) with 55 Dong-dong 15 (hereinafter "the apartment of this case") on the ground of the Seocho-gu Seoul Seocho-gu (number omitted), and which obtained the authorization for the establishment of the housing association from the head of Seocho-gu Seoul Metropolitan Government on August 18, 2001. The plaintiffs are the co-owners of the apartment of this case.

B. Holding, etc. of the defendant's ordinary meeting on January 29, 2005

(1) On January 29, 2005, the Defendant held a general meeting of shareholders to obtain rebuilding consent (hereinafter “the rebuilding resolution of this case”) with the following contents, and received project implementation authorization from the head of Seocho-gu on May 16, 2005.

(A) Summary of the construction of new buildings;

- Floor area ratio: 285.84%

- Site area: 27,562.30 square meters;

- Total floor area: 19,229.74С

-Scale: 600 households and ancillary and welfare facilities with the first underground floor, 23-25 floors above ground;

- In square: 35Ap 92 households, 35Bp 81 households, 40Ap 46 households, 40Bp 162 households, 42Ap 138 households, 42Bp 81 households;

B. Estimated amount required for removal and new construction

- The basis for calculation: the outline amount required for the removal and reconstruction of existing buildings;

- Removal costs: 2,280,000,000

- New construction cost: 74,800,000 won

- Other project costs: 21,680,000,000

- Total: 98,760,000,000

(c) Matters concerning the cost-sharing under paragraph (b): The extent of KRW 2.9 million per square year in cases of a contract system;

(d)Classification of new buildings, and ownership ownership;

- 55 households of reconstructed apartment shall first be sold in lots to all members of the association.

- The remaining 45 households after the sale in lots to the members shall be appropriated for project costs by the sale in general.

(2) On April 1, 2005, the Defendant filed an application for revision of the business plan on April 1, 2005 due to the revision of the master plan for the development of the ○ apartment zone, etc., and obtained on February 9, 2006 the project implementation authorization from the head of Seocho-gu to “five apartment houses with the floor area ratio of 266.40%, the site area of 24,557.83 square meters, the total floor area of 105,349.51 square meters, and the incidental facilities.”

(3) On April 12, 2006, the Defendant received an application for parcelling-out from its members by making a public announcement of the application for parcelling-out and received a written consent to modify the project plan on February 9, 2006.

C. Holding a general meeting of the Defendant on August 11, 2006

(1) On August 11, 2006, the Defendant held a general meeting of shareholders (hereinafter “instant general meeting”) and passed a resolution on each of the following items in the “age” column among 549 members of the entire 549 members, and the result of voting is as follows.

The consent rate of 1.5% of the 1.5% of the 5th 5th 2nd 2nd 7th 2nd 5th 2nd 2nd 5th 2nd 14th 5th 2nd 6.5th 2nd 5th 1st 2nd 5th 1st 2nd 5th 2nd 5th 2nd 5th 2nd 2nd 56th 1st 5th 2nd 5th 2nd 5th 2nd 5th 2nd 142nd 142nd 142nd 65th 5th 2nd 5th 5th 2nd 5th 5th 2nd 5th 5th 5th 5th 2nd 56th 5th 56th 126th 58th 17th 1982nd 58th 17th 1942nd 56th 257th 197th 2nd 194

(2) Meanwhile, among the resolution of the above general meeting, the outlines of reconstruction project and the management and disposal plan (drafts) that are the subject of the agenda items Nos. 1 and 6 stipulated that “the outlines of the new building’s design” are as follows: 266.40% of the floor area ratio, 24,57.83 square meters of the site size, 105,349.51 square meters of the total floor area, 25,349.51 square meters of the underground floors of the apartment, 27 square-type 16 households, 27 square-type 10 households, 33 square-type 351 households, 35 square-type 204 households) and ancillary welfare facilities; the above management and disposal plan (drafts) provides that “the total project cost” including the removal of the buildings and the cost of new construction is as approximately 134,063, 247, 347 won, 333 square-type 201, 2505 square-types of the members.

(3) After the Defendant declared at the instant general meeting that all the items Nos. 1 through 10 were resolved, the Defendant is proceeding to move to partners in accordance with the management and disposition plan (a draft) set by the instant general meeting.

2. Determination on this safety defense

The defendant asserts that the management and disposal plan of the reconstruction association is an administrative disposition, and even if there is a defect in the resolution of the general meeting of the reconstruction association which is the basis of such administrative disposition, the validity of the management and disposal plan cannot be denied on the ground of the defect in the resolution, unless the management and disposal plan, which is an administrative disposition, is revoked. Thus, it is unlawful to seek nullification of the resolution of the general meeting by means of

A project implementer shall establish a management and disposal plan before removing an existing building when the period for application for parcelling-out expires, and obtain authorization from the head of a Si/Gun, and when authorization or announcement of a management and disposal plan is made, the owner, etc. of the previous land or building cannot use the previous land or building or profit therefrom (Article 48(1), Article 49(3), and (6) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Do Act”) until the date the relocation public announcement is made, which has a specific and direct impact on the owner of the land or building. Therefore, the management and disposal plan authorized and publicly announced constitutes an administrative disposition subject to appeal litigation, but the management and disposal plan subject to the resolution of the general meeting on August 11, 2006, which is subject to the invalidation of the plaintiff, constitutes an administrative disposition subject to appeal litigation, and there is no evidence to acknowledge that the above management and disposal plan (draft) is subject to the approval of the head of a Si/Gun. Therefore, the defendant's defense is without merit.

3. Judgment on the merits

A. Determination as to the invalidity of a resolution on an agenda item Nos. 1, 6, and 8

(1) Determination as to the cause of claim

The plaintiff asserts that the "case of adjudication on reconstruction", the agenda item 1, the "case of approval on the management disposal plan (draft)," the agenda item 6, and the "case of approval on the change of business plan", the "case of approval on the change of business plan", which is the agenda item 8 of this case, shall be a case of substantially changing the reconstruction resolution of this case, and it is necessary to make a resolution by a majority of not less than 4/5 of the members, the quorum of special resolution under Article 47 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter "the

In light of the purport of Article 47 (2) of the Aggregate Buildings Act, a resolution for reconstruction shall be adopted by the majority of the sectional owners and voting rights. The resolution requires that "the outline of the design of the new building, the estimated amount of expenses required for the removal of the new building and the construction of the new building, and the matters concerning the apportionment of the above expenses" (Article 47 (2) and (3) of the Act on the Ownership of Aggregate Buildings). The modification of the rebuilding resolution requires the consent of not less than 4/5 of the members by applying mutatis mutandis Article 47 (2) of the same Act, which provides for the quorum at the time of the rebuilding resolution, in light of the effect that it affects the interests of the members of the association (see Supreme Court Decision 2004Da3864, Jun. 23, 2005). However, the modification of the matters determined in the rebuilding resolution does not fall under all, and it does not constitute the modification of the rebuilding resolution within the scope ordinarily reasonable scope due to changes in the price, etc., and if it exceeds the above scope necessary.

According to the facts of recognition as above, the defendant's 205 general meeting of 20.1.20, the scale of the reconstruction project according to the resolution of 20-5 units is 1, 23-25 units above ground (35-type 173 units, 408 units, 42-type 219 units) and 34 units below 2.4 units below 5 units below 5 units below 20, 34 units below 5 units below 5 units below 20, 360 units below 5 units below 20, 47 units below 5 units below 20, 34 units below 5 units below, 5 units below 5 units below 24 units below 5 units below, 5 units below 24 units below 5 units below 20, 37 units below 5 units below 20, 47 units below 5 units below 20, 304 units below 5 units below 27, 285 units below 36 units below

(2) Judgment on the defendant's assertion

In this regard, the defendant submitted a written consent to revise the project plan regarding the contents of the re-building resolution, such as the outline of the design of the new building before and after the modification, the estimated cost of removal of the building, and the estimated cost of new construction, from 445 members of 549 up to 4/5 (81.05%) among all 549 (4/5%). This constitutes a written resolution on the re-building modification, regardless of its form, and thus, the plaintiff's assertion that the re-building resolution failed to meet the quorum for re-building modification is groundless.

In light of the following circumstances: (a) a rebuilding association can make a written resolution under Article 41(1) of the Aggregate Buildings Act; (b) a rebuilding association can substitute for a large number of its members; (c) interest and degree of participation in rebuilding is considerably different depending on its members; (d) a rebuilding process is complicated over a long-term period; and (e) a building subject to reconstruction is divided into several places after the removal of the building; and (e) a modification of the contents of rebuilding resolution can be made by applying Article 41(1) of the Aggregate Buildings Act mutatis mutandis. In light of all such circumstances and the fact that the Aggregate Buildings Act recognizes a resolution of the management body meeting by a written agreement and does not impose any restrictions on the requirements, procedure and method of the written agreement, it is valid for rebuilding agreement to the extent that the opportunity of members to participate to the extent that it might affect the quorum, and there is no significant defect in the rebuilding agreement to the extent that it can not be recognized that an agreement has been reached by at least 4/5 of the members (see, e.g., Supreme Court en banc Decision 2009Da4925.

(2) In light of the purport of the entire statement of No. 6 to No. 12, No. 2, and No. 4, the Defendant’s consent to the alteration of the project plan was 5,000,000 won and the total amount of No. 6,00,000 won and the total amount of No. 2,00,000,000 won were 6,000,000 won and the total amount of No. 6,00,000,000 won were 6,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000 won.

(3) Sub-decisions

Therefore, each resolution on the "case of rebuilding decision" in subparagraph 1, "case of approval on a management disposition plan (draft)," and "case of approval on a change in the business plan" in subparagraph 6 among the agenda items of the instant general meeting shall be null and void all because it fails to meet the quorum of more than 4/5 special resolution.

B. Determination as to the invalidity of the resolution on the agenda item 10

The plaintiff asserts that the delegation of the resolution of the general meeting, which is an agenda item No. 10, by the general meeting of this case, is for the purpose of delegation of the execution of the resolution if the above agenda items No. 1,6, and 8 are valid, and since each of the above resolutions was not made, the validity of the resolution should also be denied.

According to the evidence evidence No. 9 of this case, the contents of the agenda item No. 10, which was resolved at the general meeting of this case, are acknowledged as "(1) the election and dismissal of representatives, (2) the conclusion of the main contract with the contractor approved by the general meeting, (3) the selection of the partner company and the conclusion of the contract, and (4) the modification of the minor business plan (excluding outside, external, external design, etc.) to the substitute committee." Since the contents of the agenda items No. 1, 6, and 8 above are different from the agenda items mentioned above, the plaintiff's assertion on the premise that the contents of the "case of delegation of matters resolved at the general meeting" (the agenda item No. 10) are to delegate the execution thereof if the agenda items No. 1, 6, and 8 are the valid resolution.

4. Conclusion

Thus, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit.

【Attachment List of Plaintiffs】

Judges Kim Jae-do (Presiding Judge)