Plaintiff (Appointed Party Law Firm LLC, Attorneys Gyeong-chul et al., Counsel for the plaintiff-appointed Party-appellant)

Head of the Geum-gu Busan Metropolitan Government (Attorney Park Jong-sik, Counsel for the plaintiff-appellant)

Busan District Housing Redevelopment and Improvement Project Association (Law Firm International Law, Attorneys Kim Da-Hy et al., Counsel for the plaintiff-appellant)

April 18, 2019

1. The plaintiff (appointed)'s claim is dismissed.

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

On October 29, 2018, the Defendant’s disposition of approving the establishment of the redevelopment project promotion committee of the 2nd unit area redevelopment project is revoked.

1. Progress of the disposition;

A. Since the Defendant’s Intervenor comprehensively succeeded to the status of the said promotion committee, the said promotion committee and the Defendant’s Intervenor’s Intervenor were approved on January 6, 2006 to implement the housing redevelopment improvement project (hereinafter “instant rearrangement project”) in the Geum-gu Seoul Metropolitan Government ○○○-dong (number 23 omitted) (hereinafter “instant rearrangement zone”).

B. On March 29, 2016, an assistant intervenor filed an application with the Defendant for authorization to establish an association (hereinafter “previous application for authorization”) with 712 owners of land, etc. located in the instant project zone, among 930 owners of land, etc., accompanied by a written consent to establish the promotion committee of the association.

C. On June 16, 2016, the Defendant: (a) issued a written withdrawal of consent to establish an association from February 12, 2016 to February 29, 2016, to exclude 90 owners of land, etc. who submitted a written withdrawal of consent to establish an association from the number of consenters; and (b) the ratio of consent should be calculated by 6.88% [66.8% of the remaining consenters except for the withdrawal of consent (=622 persons of the existing consent - 90 persons of the land, etc.) / 930 persons of the land, etc.] of the statutory consent rate (at least 3/4 of the owners of land, etc.) for authorization to establish an association.” (hereinafter “instant previous disposition”).

D. On September 8, 2018, the Intervenor held an inaugural general meeting on September 8, 2018, and subsequently, on September 10, 2018, the Intervenor applied for authorization to establish an association (hereinafter “instant application for authorization”) with 713 written consent of the owners of land, etc. (i.e., the remaining consenters + 622 existing consent forms + 91 new consent forms). Accordingly, the Defendant approved the establishment of an auxiliary intervenor on October 29, 2018 (hereinafter “instant authorization disposition”).

[Ground of recognition] Facts without dispute, Gap 2, 3, 6, Eul 1, 2

2. Whether the authorization disposition of this case is legitimate

A. The plaintiff (appointed)'s assertion

The Plaintiff (Appointed Party, hereinafter referred to as the Plaintiff) and the designated parties are owners of land, etc. within the instant project zone, and the instant disposition of authorization is sought to revoke the said disposition by asserting that there is an unlawful ground as follows:

1) The assertion of defects in the establishment requirement

The instant authorization disposition is unlawful due to the lack of the requirements for consent due to the following reasons.

A) The assistant intervenor’s articles of association was amended by the 18th articles of association (hereinafter “the 17th articles of association”) established at the 17th meeting of the promotion committee (hereinafter “the 17th articles of association”) and re-amended by the 24th articles of association that are identical to the 17th articles of association. Therefore, in order for the assistant intervenor to obtain authorization for the establishment of the 17th articles of association based on the 24th articles of association, the assistant intervenor confirmed the withdrawal of the 18th articles of association with respect to the 17th articles of association, and the 18th articles of association with consent to the 17th articles of association, and the 18th articles of association with respect to the 18th articles of association, and the 18th articles of association with respect to the 18th articles of association, but the 18th articles of association with respect to the person who consented to the 18th articles of association, but the 24th articles of association with respect to the 18th articles of association.

B) According to a civil petition reply with the purport that “the consent of the 18th Articles of Incorporation is possible, 61 of the persons consenting to the 17th and 18th Articles of Incorporation, among those consenting to the 17th Articles of Incorporation, was withdrawn prior to the application of this case. Therefore, the above 61 persons should be excluded from the number of consenting persons. As such, the above 61 persons should eventually be excluded from the number of consenting persons. Accordingly, the ratio calculated based on the 712 persons, excluding the above 61 persons (i.e., 712 persons - 61 persons), 651 persons, excluding the above 61 persons, is 69.2% (i.e. 651 persons/940 persons)

2) Omission of procedures for resolution of the residents' general meeting concerning the outline project implementation plan

According to Article 21 subparagraph 5 of the attached Table 21 of the Regulations on the Operation of the Rearrangement Project Establishment Promotion Committee, the amendment of the project implementation plan, which is a general plan, shall be determined through the resolution of the residents' general meeting. The supplementary intervenor did not go through the resolution procedure of the residents' general meeting on the change of the project implementation plan, such as the project cost increases to KRW 140 billion.

(3) Failure to comply with the duty to provide information, such as estimated contributions.

According to Article 35(8) of the Urban Improvement Act, the Promotion Committee provides the owners of lands, etc. with the estimated contributions, etc. before obtaining the consent necessary for establishing an association, but the subsidized intervenor did not provide information, such as estimated contributions, before obtaining the consent to establish an association from the owners of lands, etc. Therefore, since the consent of the owners of lands, etc. omitted the above procedure is null and void, the approval

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Whether the requirements for consent to the establishment are incomplete;

1) Facts of recognition

A) A supplementary intervenor filed a lawsuit seeking revocation of the previous disposition of this case with Busan District Court 2016Guhap3032, and the above court rendered a judgment revoking the previous disposition on April 6, 2017 on the ground that the pertinent articles of incorporation and the 18th articles of incorporation are recognized as identical in terms of social norms. Thus, the owners of lands, etc. who consented to the 17th articles of incorporation cannot withdraw consent. The previous disposition of this case premised on the withdrawal of consent was unlawful.

B) Accordingly, the Defendant appealed to Busan High Court Decision 2017Nu21364. On August 30, 2017, the said appellate court dismissed the motion of the Intervenor on the ground that the following Articles 14 and 15 of the 17th Articles of the 18th Articles of the 17th Articles of the 17th Articles of the 18th Articles of the 17th Articles of the 17th Articles of the 17th Articles of the 17th Articles of the 18th Articles of the 17th Articles of the 17th Articles of the 17th Articles of the 17th Articles of the 17th Articles of the 17th 17th Articles of the 17th 17th Articles of the 17th 17th 2017

(2) The provisions of Article 13 (1) through (3) shall apply mutatis mutandis to the selection and contract of a designer, respectively. Article 13 (1) through (3) of the Addenda included in the main text of this Decree. Article 13 (1) of the Addenda included in the main sentence of this Decree No. 2014, Feb. 2008>

C) On July 24, 2018, the Intervenor held a meeting of the 24th Promotion Committee and subsequently amended the provisions of Articles 14 and 15 of the 18th Articles of Incorporation to the same extent as the 17th Articles of Incorporation. Thereafter, the Intervenor’s withdrawal of consent was received by 61 until September 10, 2018, which is the time of the application for the authorization of the instant case. Of them, 56 copies are the withdrawal letter submitted by the consenting person who did not withdraw consent with respect to the 18th Articles of Incorporation after consenting to the 17th Articles of Incorporation (hereinafter “Withdrawal of consent”).

D) Meanwhile, the attached Table of the Operational Rules of the Rearrangement Project Establishment Promotion Committee includes the following matters:

Article 9 (Methods of Disclosure and Notification of Matters concerning Rights and Obligations of Owners of Land, etc.) (1) The Promotion Committee shall post the following matters concerning the rights and obligations of owners of land, etc. at a place easily accessible to the owners of land, etc., or via the Internet, etc., and, if necessary, make such details possible to be sufficiently made by the owners of land, etc., such as giving written notice to the owners of land, etc.;

[Reasons for Recognition] Whether withdrawal of consent of this case can be made in the entirety of the arguments and arguments without dispute, Gap 4, Eul 5, Eul 1

A) Article 28(4) of the former Enforcement Decree of the Urban Improvement Act (amended by Presidential Decree No. 24007, Jul. 31, 2012; hereinafter “former Enforcement Decree of the Urban Improvement Act”) provides that “In principle, consent may be withdrawn or opposing prior to the application for authorization, permission, etc. pursuant to the consent of the establishment of an association. However, where consent of the establishment of an association under Article 16(2) is not modified, the consent shall not be withdrawn even before the application for authorization of the establishment of an association is made.” The proviso of Article 28(4) of the former Enforcement Decree provides that “where the matters are not modified without the consent, the consent shall not be withdrawn if the matters are not modified, the consent of the establishment of an association shall not be withdrawn.” The purpose of Article 28(4) of the former Enforcement Decree is to prevent the procedure that had been implemented since partial members’ withdrawal of consent after the application for the establishment of an association, to prevent disputes among the administrative agencies concerned from withdrawing the establishment of an association.

Therefore, even if the content of the articles of association, which is one of the matters included in a written consent, is partially modified, where it is recognized as identical to the previous articles of association, the consent under the previous written consent still remains valid as an agreement on authorization to establish an association pursuant to the modified contents, and thus, the owner of a plot of land, etc. cannot withdraw his/her consent (see Supreme Court Decision 2013Du9298, May 14, 2015). Meanwhile, whether the above amendment was made should be determined at the time of submission of the written consent (see Supreme Court Decision 2011Du21218, Dec. 13, 2012).

B) In light of the above legal principles, in full view of the following circumstances, the consent of the consenting parties who did not withdraw their consent with respect to the 18th articles of association among the consenting parties to the 17th articles of association (hereinafter “the consenting parties of this case”) is valid as the consent to the establishment of the association of this case. Even if some of the consenting parties applied for the withdrawal of consent prior to the application for the establishment of the association of this case, the consent cannot be excluded from the calculation of the number of consenting parties.

① According to Article 28(4) of the Enforcement Decree of the above Act, where the owner of a plot of land, etc. has consented to establish an association, his/her consent cannot be withdrawn in principle before applying for authorization to establish an association, and where the matters under subparagraphs of Article 26(2) are changed, the consent can be withdrawn, but no new consent procedure should be

② The instant consenters agree to establish the association until the 17th articles of incorporation (from the 18th articles of incorporation). The 24th articles of incorporation submitted at the time of application for authorization can be recognized as identical to the 17th articles of incorporation in its contents.

③ Although the 17th articles of incorporation were amended by the 18th articles of incorporation, which are not identical to that of the 17th articles of incorporation, and the 18th articles of incorporation re-amended by the 17th articles of incorporation, determination as to whether the 18th articles of incorporation is identical to that of the 17th articles of incorporation, as seen earlier at the time when the withdrawal of consent was submitted, the 17th articles of incorporation consenting to the 17th articles of incorporation and the 24th articles of incorporation at the time when the withdrawal of consent of this case was submitted cannot be deemed as having undergone the 18th articles of incorporation prior to the application for authorization of this case, or having undergone a new procedure for consent

④ In using the articles of association recognized as identical to the existing articles of association, in the case of this case where some of the contents of the articles of association were amended during the intermediate process, the time and economic waste is bound to take place, and the stability of the establishment of the association is not ensured. The rearrangement project of the Republic of Korea is considered to have a significant impact on a large number of economic interests, and the approval of the association of the Republic of Korea should be promptly carried out as a project. The approval of the association of this case must specify the requirements of an administrative disposition as possible, considering the following: (a) the approval of the association of this case did not withdraw consent until the 18th articles of association; and (b) the approval of the association of this case did not consent to the establishment of the association at the 18th articles of association; and (c) the approval of the association of this case does not require the withdrawal of consent under the existing consent in relation to the articles of association recognized as identical to the existing association

3) Whether the procedure for withdrawing consent of this case is unlawful

A) Article 2(1) and (4) of the Regulations on Operation of the Establishment Promotion Committee of Rearrangement Projects intends to establish a rearrangement project association with the consent of a majority of the owners of land, etc. and obtain the approval of the head of a Si/Gun, etc.., and the consent of the owners of land, etc. shall be obtained by means of obtaining consent from the written consent to the formation of the Establishment Promotion Committee of the Rearrangement Project attached to the ○○ Improvement Project Promotion Committee, and Article 9 of the aforementioned attached Table provides that the consent of the owners of land, etc. shall be disclosed to the bulletin board, Internet, etc. regarding the withdrawal and method of consent to establish an association, and the written notification shall be made

B) In light of the following circumstances that can be seen by the overall purport of Eul evidence Nos. 6 and 8, Eul evidence Nos. 6 and 8, and Eul evidence No. 7, even though the Intervenor did not inform the owners of land, etc. of the matters regarding the withdrawal of consent by registered mail in relation to the 24th articles of association, the consent form submitted at the time of applying for authorization of the establishment of the instant association cannot be deemed null and void, or there is no illegality in the instant disposition of authorization.

① On July 25, 2018, the Intervenor appears to have posted a notice to the effect that “the method of cancelling consent to the establishment of an association shall be directed by the relevant statutes” in the name of the Intervenor to the establishment of the association at a large number of places. Around September 7, 2018, the Intervenor posted a notice on the Intervenor’s website of the “Guide to withdraw consent to the association” and the consent of the Intervenor up to the 18th articles of association stated matters concerning the withdrawal

② As can be seen, regarding the consenters to the 18th articles of association, which already provides information on the withdrawal of consent, and regarding the persons who withdraw consent in the process of the previous disposition of this case, there is a change in the 24th articles of association as seen earlier, and thus, it cannot be deemed that a new information on the withdrawal of consent should be provided or need to be provided individually

③ The owners of land, etc. in the instant rearrangement zone appears to have been fully aware of whether withdrawal of consent was made through the process of the previous application for authorization, the previous lawsuit, and the process of applying for authorization of the instant case, and due to the foregoing circumstances, the revocation of consent with respect to the 24th articles of association of the instant consenters is not acceptable is irrelevant to whether written notification is given to the owners of land

4) Therefore, this part of the plaintiffs' assertion on the lack of consent to establish an association is without merit.

(d) Whether a residents' general meeting exists concerning the change of a project implementation plan;

1) Article 14(1)3 of the former Urban Improvement Act (amended by Act No. 9401 of Jan. 30, 2009) provides that a promotion committee shall perform the work of preparing a rough implementation plan for a rearrangement project. Article 24(1)3 of the former Enforcement Decree of the Urban Improvement Act (amended by Presidential Decree No. 24007 of Jul. 31, 2012) provides that a outline project implementation plan, including the scope of shares to be borne by the owners of land, etc., shall be posted at a specific place where the owners of land, etc. can easily access to the land, etc., or disclosed through the Internet, and if necessary, the owners of land, etc. shall be fully informed of the details of the plan, such as written notification to the owners of land, etc.; Article 15(2) of the former Urban Improvement Act (amended by Act No. 2009-548 of Aug. 13, 2009); Article 21 of the former Enforcement Decree of the Urban Improvement Act provides that the following a new project plan shall include the project plan and the project cost.

2) We examine the following circumstances acknowledged by the overall purport of the written project implementation plan including evidence, evidence Eul and evidence Nos. 3, i.e., ① an assistant intervenor prepared a written implementation plan for the rearrangement project and notified the owners of land, etc. of registered mail or general mail around November 2008 in accordance with the aforementioned relevant regulations, and no later than there was any change after the amendment. ② The plaintiff asserted that the outline improvement project plan prepared around November 2008 by the assistant intervenor should have gone through the residents' general meeting because the initial implementation plan for the rearrangement project was modified. However, it is insufficient to acknowledge that there was a separate completed implementation plan for the rearrangement project, and there is no other evidence to acknowledge that there was a separate implementation plan for the rearrangement project. ③ According to Article 30(2) of the Enforcement Decree of the Act on the Improvement of Urban Areas and Dwelling Conditions, it is difficult to acknowledge that there was no other evidence to acknowledge that there was no consent from the intervenor prior to obtaining consent from the owners of land, etc. (see, e.g., Supreme Court Decision 2012Du162782, etc.).

3) Therefore, the Plaintiff’s assertion on this part is without merit.

(e) Whether each owner has provided predicted contributions;

1) Upon amendment by Act No. 11293, Feb. 1, 2012, the Urban Improvement Act (amended by Act No. 11293, Feb. 1, 2012; hereinafter “instant provision”) provides that “The Promotion Committee shall provide the owners of land, etc. with information prescribed by Presidential Decree, such as estimated charges, before obtaining consent necessary for establishing the association.” (Article 16(6) and Article 35(8) of the present Urban Improvement Act; hereinafter “instant provision”) shall be newly established [Article 1 of the Addenda-No. 11293, and February 1, 2012, Article 1 provides that “this Act shall enter into force six months after its promulgation: Provided, That the amended provision of Article 16(6) provides that “The Act shall enter into force only one year after the date of its promulgation; there is no provision on retroactive application of the aforementioned amended provision; Article 16(3) of the Enforcement Decree of the Urban Improvement Act provides for the right of owners of land, etc., etc. to purchase and sale price of land, etc. (hereinafter “Presumption No. 1”).

2) In light of the following circumstances, it is reasonable to view that the supplementary intervenor lawfully fulfilled its duty to provide information, such as estimated contributions, in relation to the procedure of consent at the time of the application for authorization of this case, in light of the aforementioned evidence, Eul evidence, Eul evidence, Eul evidence Nos. 8, 9, Eul evidence Nos. 3, 4, and 5 and the purport of the entire pleadings.

① From February 2, 2013 when the instant provision was enforced, the Intervenor asserted that he/she provided the owners of land, etc. with information, such as estimated contributions, prior to obtaining a written consent, and that the description of Eul 8, 9, and Eul 4 (the supplementary intervenor separately stated in the written consent drafted by the supplementary intervenor “the information provided pursuant to Article 35(8) of the Urban Improvement Act” is consistent with the aforementioned assertion by the supplementary intervenor.

② According to “A statement of individual estimated contributions by the owner of a plot of land, etc. subject to the housing redevelopment improvement project in the Zone Two Zone Two (B)” (No. 4-2), each owner of a plot of land, etc. includes estimated appraised values, estimated funds (amount of revenue estimates, estimated amount of expenditure, estimated total revenue, estimated total amount of previous assets, proportional rate), basis for estimated expenses rates (total estimated profit / total estimated amount of revenue for the members of the association for application for parcelling-out) and estimated expenses for each type of land, etc.

③ An intervenor appears to have provided the estimated contributions according to the calculation result of estimated contributions calculated by the appraisal corporation to the owners of land, etc., and has provided the anticipated contributions, etc. through the Busan Metropolitan City integrated homepage of the improvement project.

④ Since the amount of expenses to be specifically apportioned to each association member is finally determined by a management and disposal plan after obtaining authorization for establishment and approval for a project implementation plan, it seems inevitable to record the general standard, procedure, and method to specify the details of a future reconstruction project as the project is inevitably implemented at the pre-approval stage of establishment of an association.

⑤ Even if the criteria for allocation of project costs to be borne by association members, outline of the project, ownership attribution, etc. are somewhat abstract, in light of the stated degree, the owners of land, etc. in the instant rearrangement zone may reasonably forecast the degree of expenses to be borne by association members or the direction of progress of the project in the future, if they agree to establish an association based on the outline of design of new construction, the amount of budget for removal of buildings and new construction, the amount of budget for expenses to be borne by association members, the portion

3) Therefore, the Plaintiff’s assertion on this part is without merit.

4. Conclusion

Therefore, the authorization disposition of this case is legitimate, and the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

(attached Form omitted)

Judges Park Jong-soo (Presiding Judge)

1) The Plaintiff asserts that the number of consenters is 712, based on the monetary content (Evidence A9) with employees in charge of the Defendant.

2) Article 28(4) of the Enforcement Decree of the Urban Improvement Act was amended by Presidential Decree No. 24007 on July 31, 2012. Article 3 of the Addenda to the Enforcement Decree of the Urban Improvement Act (Presidential Decree No. 24007, July 31, 2012) provides that “The amended provisions of Article 28(4) provide that “The provisions of Article 28(4) shall apply to cases where the Promotion Committee, which was established with the approval of the head of a Si/Gun pursuant to Article 13(2) of the Act after this Decree enters into force, obtains consent for establishment of an association.” Therefore, Article 28(4) of the former Enforcement Decree of the Urban Improvement Act shall apply to this case with the approval of the Promotion Committee on January 6, 2006, which