Plaintiff (Appointed Party) 1 and 5 others

Plaintiff 6 and 12 others (Attorney Jeong Byung-chul, Counsel for the plaintiff-appellant)

New Distribution 5th Apartment Reconstruction Association (Attorneys Choi Young-dong et al., Counsel for the plaintiff-appellant)

September 20, 2011

Seoul Central District Court Decision 2006Gahap8904 Decided November 15, 2007

Seoul High Court Decision 2008Na6658 Decided October 22, 2008

Supreme Court Decision 2008Da93001 Decided October 15, 2009

Seoul Administrative Court Decision 2009Guhap48241 Decided January 29, 2010

1. Of the judgment of the court of first instance, the part concerning plaintiffs (appointed parties) 4, 5, and 6, 7, 15, and 18 shall be revoked, and the part concerning the plaintiffs' claims among the lawsuit of this case shall be dismissed.

2. The defendant's remaining appeal is dismissed.

3. The total cost of the litigation between the plaintiffs (appointed parties) 4, 5 and the plaintiffs 6, 7, 15, 18 and the defendant shall be borne by the above plaintiffs, and the cost of the appeal between the remaining plaintiffs and the defendant shall be borne by the defendant, respectively.

1. Purport of claim

The defendant's annual meeting of August 11, 2006 confirmed that each resolution on "the case of the re-building ruling", "the case of the approval of the management and disposition plan (draft)," and "the case of the approval of the amendment to the business plan" under subparagraph 1, 6, among the agenda items of the general meeting of shareholders (the plaintiff claimed in the first instance court of this transmission and claimed the invalidity of the resolution on "the case of the delegation of the matters of the general meeting" under subparagraph 10 among the agenda items of the general meeting of shareholders, but the claims under subparagraph 10 were dismissed in the first instance court of this transmission, and only the defendant appealed, were excluded from the scope of the judgment of the appellate court of this transmission, and the judgment of the appellate court of this transmission was dismissed, and only the defendant appealed and confirmed by the final appeal

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiffs' claims are dismissed.

1. Basic facts

A. On August 18, 2001, the Defendant was the co-owners of the instant apartment complex, among the co-owners of five 55 units (114 units, 118 units, 115 units, 117 units, 116 units, 117 units, 117 units, 118 units, and 96 units), from among the co-owners of the Seocho-gu Seoul ( Address omitted)-gu (hereinafter “the instant apartment complex”), and was authorized by the head of Seocho-gu (hereinafter “the Plaintiff” together with the appointed party) and the Plaintiff (hereinafter “Plaintiff”) as co-owners of the instant apartment complex.

B. At the time of the initial rebuilding resolution, the Defendant constructed an apartment 1st apartment underground floor, 23-25 floors above the ground, 600 households above the ground and ancillary welfare facilities by applying the floor area ratio of 285.85%, the site area of 27,562.30 square meters, and the total floor area of 119,229.74 square meters to “the estimated amount of the removal of the building and the construction of the new building” as to “the estimated amount of the removal of the building” (i.e., the removal cost of KRW 2,280,000 + the removal cost of KRW 74,80,000 + the cost of new construction + the cost of 21,680,000,000 + the cost of other project + the cost of the removal of the new building and the cost of the construction of the new building). As to “the share of the cost of the removal of the building,” the Defendant obtained each consent to re-building cost of KRW 290,00.

C. On December 27, 2004, in order to obtain approval for a business plan to which the reduced floor area ratio was applied as a result of the reduction of permissible floor area ratio due to the determination and public announcement of the master plan for development of the Seocho-gu apartment zone (amended) on December 27, 2004, the Defendant, upon holding a general meeting on January 29, 2005 and filing an application for approval for a business plan on April 1, 2005, filed an application for approval of the business plan on May 16, 2005 with the head of Seocho-gu on May 16, 2005 by applying the business plan to “area ratio 26.23%, site size 24,57.8 square meters, total floor size 102,813.84 square meters, and the project approval was granted from the head of Seocho-gu on May 16, 2005.”

D. After that, on February 9, 2006, the Defendant obtained the project implementation authorization from the head of Seocho-gu as follows: (a) by applying the project size ratio of 266.40%; (b) 24,57.83 square meters; (c) total floor area of 105,349.51 square meters; and (d) 2 underground floors; (d) 581 households and ancillary welfare facilities with 28-35 stories; and (c) at the time of the application for the change of the project implementation, the total project cost was KRW 109,656,00,000.

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

F. On August 11, 2006, the Defendant held a general meeting (hereinafter “instant general meeting”) on August 11, 2006 and passed a resolution on each of the following items, among 549 members of the entire 549 members, with respect to the “age” column in the table below. The voting result is as follows (in calculating the consent rate, less than two decimal places for convenience), and the Defendant declared that all of the items set forth in subparagraphs 1 through 10 set forth below were passed at the instant general meeting.

The consent rate of 1.5% of the 1.5% of the 5th 5th 2nd 2nd 7th 2nd 5th 2nd 2nd 5th 6.2nd 5th 6.5% of the 194 126.06th 5th 2nd 5th 2nd 2nd 142nd 142nd 65.61% of the 5th 5th 5th 5th 2nd 2nd 2nd 56th 2nd 2nd 56th 5th 2nd 197th 142nd 142nd 65.39% of the 5th 5th 2nd 5th 2nd 5th 5th 2nd 56th 17th 56th 2nd 58th 17th 258th 197th 2nd 57th 197th 2nd 57th 2nd 198

G. Meanwhile, among the resolution of the above general meeting, the outlines of reconstruction project and the management and disposal plan (design outlines of new building) subject to the agenda items Nos. 1 and 6 are as follows: 266.40% of the floor area ratio, 24,57.83m2 of the site size, 105,349.51m2 of the apartment underground floor, 28-35m28 to 581m2 of the ground (25 square-type 16 households, 27 square-type 10 households, 33 square-type 351 households, 35 square-type 204 households). The above management and disposal plan (design) provided that "total expenses incurred in the construction of new buildings", including expenses incurred in removal of buildings and new construction, was determined as 134,063, 247, 347 won, 330 square-type 201, 25, 296, 205 square-type 25, 28.25

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 6, 7, 8, 9, 16, Eul evidence Nos. 3 and 4 (including paper numbers), the fact inquiry results to the head of Seocho-gu, and the purport of the whole pleadings

2. Determination on this safety defense

A. The defendant's assertion

Plaintiff 4 [Plaintiff 4], 5], 6 (Plaintiff 6), 7 (Plaintiff 7 of the Supreme Court’s judgment), 15, and 18 (Plaintiff 17 of the Supreme Court’s judgment) are not currently sectional owners of the apartment of this case, and Plaintiff 2 [Plaintiff 2], and 10 (Plaintiff 10 of the Supreme Court’s judgment) is subject to cash settlement by failing to apply for parcelling-out or withdrawing application for parcelling-out, and thus, the above Plaintiffs are not entitled to standing to sue a resolution of the general assembly of this case.

B. Determination

1) First, the person who can dispute the validity of the resolution of the general meeting of this case is limited to the person who is affected by the rights and obligations according to the resolution of the general meeting of this case. According to the statements of No. 29-1 through No. 5, No. 29-7, the plaintiff 4, 5, 6, 15, and 18 completed the registration of transfer of ownership for each of the apartment units of this case owned by them to a third party, and the fact that the apartment units of this case owned by the plaintiff 7 of this case (dong name omitted) have been knocked by a voluntary auction to a third party can be recognized. Thus, the above plaintiffs are not owners of the apartment units of this case as of the date of the closing of argument, and therefore the above plaintiffs cannot be affected by the resolution of the general meeting of this case, and therefore there is no standing to sue as to the validity of this part of this objection.

2) On the other hand, the plaintiff 2 and 10, who were the original owner of each apartment of this case, as the original owner of the apartment of this case, shall finally be determined at the stage of establishing the management and disposition plan, and since the above plaintiffs dispute that there is no validity of the management and disposition plan, which is a premise to determine whether the status of the union members is lost, the above plaintiffs are legally entitled to seek confirmation of invalidity by still disputing the validity of the resolution of the general assembly on the draft of the management and disposition plan, even if they did not apply for parcelling-out or withdrawn the application for

3. Judgment on the merits

A. The plaintiffs' assertion

Article 19(2)2 of the Rules of the Defendant is null and void since the matters concerning the property rights and bearing of expenses of the union members are to be resolved with the attendance of at least 2/3 of the incumbent union members and with the consent of at least 2/3 of the voting rights of the union members, and the above matters are matters concerning the property rights and bearing of expenses of the union members, which are matters concerning the property rights and bearing expenses of the union members, which are matters concerning the property rights and bearing of expenses by at least two-thirds of the voting rights of the union members under Article 19(2)2 of the Rules of the Defendant. The above items are matters concerning the property rights and bearing expenses of the union members, but do not meet such quorum, and thus do not constitute a violation of the rules of the Defendant Union (Articles of Association).

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) The criteria for selecting whether the owner of land, etc. will participate in reconstruction while bearing reasonable expenses or will sell sectional ownership, etc. and will not participate in reconstruction at the market price. In the event of a rebuilding resolution, if the association members' consent is obtained in relation to the cost-sharing of the building presented, matters concerning the cost-sharing for the removal and new construction of the building, which should be determined at the stage of establishment of a reconstruction association, shall be the contents of the rebuilding resolution. Thus, if the reconstruction association, after concluding a contract with the contractor, changes the rebuilding resolution about the cost-sharing in excess of the ordinary expected range due to changes in the situation of the construction, such as price fluctuations, if the rebuilding association changes the matters concerning the cost-sharing at the time of the original rebuilding resolution in excess of the ordinary anticipated range due to changes in the situation of the construction (see Supreme Court Decision 2007Da31884, Jan. 30, 2009). This does not change the rebuilding resolution about the cost-sharing even if the increase in expenses occurred inevitably due to changes in the government policy or other unexpected circumstances (see Supreme Court Decision 2007

According to the above facts, the size of the apartment units with 30 square meters and 25 square meters for 30 units units and 40 units for 20 units for 30 units for 40 units for 5 units for 20 units for 20 units for 30 units for 40 units for 5 units for 20 units for 20 units for 30 units for 5 units for 20 units for 40 units for 5 units for 20 units for 5 units for 25 units for 30 units for 5 units for 40 units for 5 units for 20 units for 5 units for 5 units for 30 units for 5 units for 40 units for 5 units for 40 units for 5 units for 5 units for 20, for 5 units for 5 units for 40 units for 5 units for 5 units for 20, for 500 units for 5 units for 5 units for 5 units for 5 units for 24 units for 5 units for 5 units for 265 units for 5 units

2) Meanwhile, the articles of association of a reconstruction association under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 944, Feb. 6, 2009; hereinafter “former Act”) regulates association members’ legal relations, such as association members’ organization, activities, rights and obligations of association members, and thus, in principle, violating the former Act is not allowed. The former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by the former Act No. 2010, Jan. 17, 2007) provides for the following matters: “The time and procedure for bearing expenses of association members, construction expenses, etc., and the contents to be included in the contract for construction projects” to be included in the articles of association in the amendment of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by the former Act No. 1068, Feb. 6, 200). 20; and Article 18(1)7 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Areas and Dwelling Facilities (amended by the former Act).

Furthermore, Article 24 (3) 10 of the former Act provides that the establishment and alteration of a management and disposal plan shall undergo a resolution of the general meeting composed of members. Article 24 (5) of the same Act provides that the procedures for convening the general meeting, timing, method of resolution, etc. shall be stipulated by the articles of association. Article 18 of the bylaws of the defendant association (which has been amended by the articles of association of this case) shall be determined through the resolution of the general meeting. 2. Matters concerning the determination and alteration of the project implementation plan stating that "2." 3. Matters concerning the establishment and alteration of a management and disposal plan, "6." 7. 7." Article 19 (1) of the Rules of the defendant association provides that, inasmuch as the provisions of Article 24 (3) of the former Act stipulate that the matters to be resolved upon by the general meeting are substantially different with the attendance of at least 1/2 of the members, and thus, matters concerning the contracts and charges to be borne by the members may not be approved by the majority of the members present and the resolution."

With respect to this case, the general meeting of this case only consented to less than 2/3 of the union members with respect to the above agenda, and thus, the resolution on the above agenda did not meet the quorum.

3) In regard to this, the Defendant asserts that, following the re-building resolution, the design outline of the new building before and after the alteration, and the estimated amount of the cost of removal and new construction of the building from more than 2/3 of the entire members, the Defendant received the consent for the alteration of the business plan, “the consent for the alteration of the business plan,” and “the consent for the re-building, the articles of association, and the business plan,” and accordingly, the quorum for the alteration of the re-building resolution was satisfied.

Then, Article 19(3) of the Rules of the defendant association provides that "the above members shall exercise their right to vote in writing or by proxy and shall be deemed to attend the above general meeting." Thus, in calculating the ratio of consent on each of the above items, the defendant's own opinion did not include the above ratio of the modification of the business plan under the premise that it is not a written resolution on the general meeting of this case. It is difficult to accept the defendant's above assertion that the above modification of the business plan constitutes a written resolution on the general meeting of this case, since the above modification of the business plan of this case 20 to 00 to 30 to 0 to 20 to 20 to 30 to 20 to 30 to 20 to 30 to 5 to 20 to 20 to 30 to 4 to 20 to 5 to 20 to 20 to 4 to 5 to 20 to 5 to 4 to 5 to 5 to 4 to 25 to 2 to 26 to 4 to 25 to 2 to 2 to 4 to 2 to 772 to m2.

On the other hand, the defendant asserts that the consent form was submitted additionally from the members after the general meeting of this case, but the claim of this case is invalid, and the resolution of the general meeting of this case is null and void unless the quorum does not meet the quorum as at the time of the resolution of the general meeting. Thus, the defendant's above assertion is without merit without further review.

4) Sub-determination

Therefore, each resolution on the "cases of the ruling on reconstruction" in subparagraph 1, "cases of approval on the management disposition plan (draft)" in subparagraph 6, and "cases of approval on the change of business plan" in subparagraph 8 among the agenda items of the instant general meeting is null and void since they failed to meet the quorum of 2/3 or more special resolution.

4. Conclusion

Therefore, the part of the claim of plaintiffs 4, 5, 6, 7, 15, and 18 among the lawsuit of this case is unlawful and dismissed, and all of the claims of the remaining plaintiffs are accepted due to the reasons. Since the part concerning plaintiffs 4, 5, 6, 7, 15, and 18 among the judgment of the court of first instance concerning the plaintiffs 4, 5, 6, 7, 15, and 18 is unfair, it is dismissed, and the part concerning the claim of the above plaintiffs among the lawsuit of this case is dismissed, and the defendant's remaining

[Attachment]

Judges Kim Chang-suk (Presiding Justice)