2010Guhap4016 Revocation, etc. of authorization to establish an association

1. Title A;

2. KimB

3. Maximum;

4. StickD;

5. E;

6. F; and

7. Prostitution.

8. HaH

[Judgment of the court below]

Changwon Market

Attorney Ansan-il, Counsel for the defendant-appellant

anti-monthly Housing Redevelopment Project Cooperatives

Attorney Lee Jong-sung, Counsel for the defendant-appellant-appellee

Attorney Lee Jae-ho

December 17, 2013

February 11, 2014

1. Of the lawsuit in this case, the part of the claim for nullification of the approval for establishment of the Housing Redevelopment Project Association shall be dismissed.

2. The plaintiffs' remaining main claims and conjunctive claims are all dismissed.

3. The costs of lawsuit are assessed against the plaintiffs.

On December 30, 2008, it is confirmed that the defendant's approval for establishment of a housing redevelopment project association for the semi-monthly district on December 30, 2008, and the defendant's approval for establishment of a housing redevelopment project association on August 31, 2010 is invalid.

Preliminaryly, the defendant's disposition of approval for establishment of a housing redevelopment project association on August 31, 2010 is revoked.

1. Details of the disposition;

A. On February 22, 2006, the Defendant rendered a disposition of organizing approval to the establishment promotion committee of the anti-monthly Housing Redevelopment Promotion Committee (hereinafter referred to as the "existing promotion committee") with the area where the area of 92,059 square meters is scheduled for the implementation of the project as one day-to-day Masan Si (the administrative district was changed to "Masan-si, Changwon-si).

B. Since then, under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the “Urban Areas and Dwelling Conditions for Residents”), the existing promotion committee has promoted a semi-monthly housing redevelopment project (hereinafter referred to as the “project in this case”). On January 25, 2008, the Special Self-Governing Province was designated and publicly notified as the project improvement zone in this case by the head of Sinsan-si No. 2008-50 of the Sinsan-si Notice No. 2008, 1, 96,62 square meters as 96,62 square meters as the project improvement zone in this case. The plaintiff's authorityA and the owner of the land and its ground building located in the zone scheduled for the project in this case, including the plaintiff's authorityA, and against the establishment of the existing promotion committee, filed a lawsuit to nullify the approval to establish the existing promotion committee under the Changwon District Court 2007Guhap23799. The above court did not establish the basic plan and rendered the approval to establish the improvement zone.

D. On December 30, 2008, the Defendant (hereinafter referred to as the "Masan Market prior to the change of the administrative district") again made a disposition of approval [area 96,622 square meters, 675 square meters, 61.85% of land owners, 51.85% of the consent rate (350/675), 68 members, and 15 December 2008 of the date of application for approval for establishment]; and

E. On May 17, 2010, the instant promotion committee filed an application for authorization to establish a housing redevelopment project with the Defendant, and on August 31, 2010, the Defendant rendered a disposition to authorize the establishment of the Intervenor’s Intervenor’s Partnership (hereinafter “ Intervenor Union”) (number 681 members, the consent rate of 75.7% (516 members), the consent rate of 681 members, and the consent rate of 75.7%) with the Defendant’s Intervenor’s Intervenor’s Partnership (hereinafter “ Intervenor Union”) on August 31, 2010). [Grounds for recognition] There is no dispute, Party A’s evidence Nos. 1, 2, and 3, Party A’s evidence No. 6-1, 2, Party A’s

2. We examine whether the part of the claim for nullification of the approval of establishment of the promotion committee of this case, among the lawsuit of this case, is legitimate or not, as to the lawsuit of this case seeking nullification of the approval of establishment of the promotion committee of this case filed on December 30, 2008.

According to Articles 13(1) and (2), 14(1), and 15(4) and (5) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 944 of Feb. 6, 2009; hereinafter referred to as the “former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”), where a person other than the head of a Si/Gun or the Housing Corporation intends to implement a rearrangement project, an association consisting of owners of land, etc. shall be established; where such association is intended to be established, five or more members including the chairperson (hereinafter referred to as the “Promotion Committee”) shall be organized with the consent of a majority of the owners of land, etc., and the head of a Si/Gun shall obtain the approval of the Promotion Committee in accordance with the methods and procedures prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs; when the association is established, the Promotion Committee shall report the affairs performed by the Promotion Committee to the General Assembly of Cooperatives and related documents, and transfer the rights and obligations related to the affairs performed by the Association

In light of the contents, form, system, etc. of the relevant statutes, the organization approval disposition of a promotion committee is an interim disposition that supplements the composition action of the promotion committee, which is the principal agent for the establishment of the promotion committee, and is an interim disposition that achieves the ultimate objective of the establishment of the association, but its legal requirements or effect is an independent disposition that is different from the establishment approval disposition, and thus, it cannot prevent the progress of the rearrangement project by the association that has already obtained the approval. Therefore, where the establishment approval disposition is made, it is not possible to prevent the progress of the rearrangement project by directly disputing the establishment approval disposition on the ground that there is an error of law in the establishment approval disposition of the promotion committee and the application for the establishment approval is null and void, etc. In addition, there is no legal interest in seeking cancellation or invalidation of the promotion committee approval (see Supreme Court Decision 2011Du112, 1129, Jan. 31, 2013).

In this case, as seen earlier, the promotion committee of this case obtained the approval of establishment from the defendant on August 31, 2010. Thus, the plaintiffs should directly dispute a provisional disposition, which is an association founder, on the ground that there was an error of law in the establishment approval of the promotion committee of this case and the act of applying for the approval of establishment is null and void. Furthermore, there is no legal interest to seek confirmation of the approval of establishment of the promotion committee of this case.

Therefore, this part of the lawsuit must be dismissed as illegal.

3. Whether the disposition of approving the establishment is unlawful;

A. The plaintiffs' assertion

1) Since defects in the composition of the instant promotion committee exist in the existing promotion committee at the time of the disposition of approval for the composition of the instant promotion committee, multiple promotion committees are approved in one improvement zone. In light of the fact that the existing promotion committee at the time of application for approval for the composition of the promotion committee of this case reuses the certificate 199, which was submitted to the Defendant at the time of application for approval for the composition of the promotion committee of this case, and that the promotion committee of this case consists of without holding a resident general meeting under Article 13(2) of the former Act, the composition of the

2) An inaugural general meeting for establishing an inaugural general meeting shall be held with attendance of a majority of the owners of land, etc., and shall pass a resolution with the consent of a majority of the owners of land, etc... In order to establish an intervenor association, the inaugural general meeting shall be held with the consent of 351 of the owners of land, etc... However, even after submitting a written resolution, three persons (J, K, and L) who have attended the inaugural general meeting again and exercised voting rights again, two (M, N), two (6) persons who have asserted not to submit a written resolution by themselves, six (p) persons whose proxy did not attach a power of attorney to prepare a written resolution, and two (V) persons (U,V, Q, high, S, and Han), two (V), one (W) who has exercised voting rights by an individual of the owners of land, etc., and 2) who did not meet the above written resolution at the inaugural general meeting, 153 and 16 (17) of the total number of 17) shall be excluded from the written resolution.

3) In order to establish a defective housing redevelopment and rearrangement project association, consent of at least 3/4 of the owners of land, etc. is obtained. If the defendant excludeds the following persons from those calculated as the consent of the establishment of the association, the above consent ratio is below the above ratio, and the instant disposition is unlawful.

① 39 persons, from among the members of the cooperative, who have not affixed their seal imprints on the written consent for the establishment of the cooperative, who have not affixed their seal imprints on the written consent for the establishment of the cooperative and have submitted a written consent for the forgery of the written consent (AA, EAB, LAD, KimBD, EAE, LAF, LAF, LAH, Kim J, Kim J., YangJ, SAK, SimM, UAM, MaN, KimAOO, KimAP, GaP, YAP, YP, YAP, YAP, Kim Jong-U, Kim Jong-U, Kim Jong-U, Kim Jong-U, Kim Jong-U, KimBE, Kim Jong-U, KimBF, Lee Jong-U, KimBG, KimBH, KimBH, KimBH, KimBI, ParkBJ, GoBJ, and NewN) shall be excluded from the calculation of the consent rate.

(2) Five cases (M, AI, KimAJ, YangAK, YangK, ALD, EAE, LAE, lowest AF, KimAH, KimOO, MAM, Yellow Qu, GaP, SAP, SAR, HAS, GAS, KimAS, KimAS, KimU, KimV, KimAV, KimAW), and five cases (M, OAI, KimAJ, YangAK, YangK, and AL) of which the output of the stamp image was found forged as a result of the appraisal of the stamp image of the National Science Investigation and Investigation Agency, and where two cases (BA and SAY) of which it is clear that the present volume of the stamp image was unfolded from the number of consenterss.

The letter, newN, and KimAW, which withdrawn the consent to establish an association in July 2008, shall be excluded from the calculation of the consent rate.

(4) In light of the timing of demanding the certificate of the personal seal impression, etc., each written consent to establish an association, which was drafted from the owners of land, etc. before the designation of a rearrangement zone, and attached by 392, which was used when applying for approval for the establishment of an association, is insufficient to recognize the validity of consenting to establishment.

4) The representative representative representative of the instant promotion committee is KimBL at the time of approval for the formation of the instant promotion committee. Since he resigned around March 2009, he was required to select a new chairperson without delay as prescribed by the operational regulations of the promotion committee of this case and obtain approval for the modification of the promotion committee from the Defendant. However, the instant promotion committee did not take such measures but did not take any measures, and performed duties such as demanding written consent for the establishment and personal seal impression on behalf of the instant promotion committee, and the representative was submitted as the representative at the time of submission of the written application for approval for the establishment of the Intervenor’s association. The act of demanding consent for the establishment of the unlawful promotion committee and the application for approval for the establishment of the association is all invalid

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) First, we examine the first argument pointing out the defect in the composition approval disposition of the instant promotion committee.

A) Considering the purpose and nature of the organization approval and the disposition of approving the establishment of a promotion committee under Articles 13 through 16 of the former Act, the two dispositions differ from their purpose and character. As such, the disposition of approving the establishment of a promotion committee should meet more strict consent requirements than the consent requirements for the organization of the promotion committee and be established through the establishment of an organization, such as the determination of the articles of association through the resolution of the inaugural general meeting and the selection of executives. Thus, recognizing illegality in the disposition of approving the establishment of a promotion committee solely on the ground of illegality in the disposition of approving the establishment of the promotion committee, such as lack of consent requirements for the promotion committee composition, is not appropriate in

Therefore, since the establishment approval disposition of the committee is not based on the premise that the establishment approval disposition is legitimate and valid, so long as the housing redevelopment association is established by meeting the consent requirements prescribed by the Urban Improvement Act, the establishment approval disposition cannot be deemed unlawful on the ground of defects in the organization approval disposition of the committee already extinguished.

However, if there are special circumstances where an application for approving the establishment of a promotion committee is deemed null and void due to the illegality of the disposition of approving the establishment of the promotion committee, it can be deemed unlawful. However, as seen earlier, since an application for approving the establishment of a promotion committee is made based on the establishment of the substance of the association after meeting the consent requirements prescribed by the law and the inaugural general meeting was formed, an application for approving the establishment of a promotion committee is not deemed unlawful and invalid on the ground of the illegality of the organization of the promotion committee or the disposition of approving the establishment, and it does not constitute an unlawful and invalid act, but only if the illegality is up to the extent that the legislative intent of the promotion committee system, which allows one promotion committee to perform its duties to establish an association within a rearrangement zone under the Urban Improvement Act, the application for approving the establishment of a promotion committee is unlawful and invalid, and furthermore, the validity of the disposition of approving the establishment based on the above can be disputed (see Supreme Court Decision

B) In light of the above legal principles, even if multiple promotion committees were temporarily approved as claimed by the Plaintiffs in the composition of the instant promotion committee, or there were defects such as organizing a resident general meeting, such circumstance alone is deemed difficult to deem that the purpose of legislation of the promotion committee system under the former Act on the Maintenance of Urban Areas and Dwelling Conditions for Residents reaches the extent of punishing the committee. Therefore, just on the ground as alleged by the Plaintiffs, the composition of the instant promotion committee cannot be deemed unlawful or invalid, and the Intervenor’s disposition of approving the establishment of the association cannot be deemed unlawful. Accordingly, the Plaintiffs’ assertion in this part is without merit.

2) Next, we examine the defects in the resolution of the inaugural general meeting of the intervenor association.

A) In full view of the purport of the entire arguments in the statements in Gap evidence Nos. 24 through 32 (including each number), Eul, and Eul evidence Nos. 1, the following facts can be acknowledged: (a) after submitting a written resolution, the document was submitted, and then calculated only three persons without any duplicate calculation in the case of J, the largest K, and KL; and (b) W Co., Ltd. was dissolved on December 2, 2004 and completed liquidation on December 2, 2007, and submitted a written resolution of the inaugural general meeting, which remains as an officer on the registry at the time of submitting the document of the inaugural general meeting; (c) the fact that the document accompanied by a certificate of personal seal impression was submitted in the case of EM and New N.

B) According to the above facts of recognition, it is reasonable to view that each owner of land, etc. has lawfully consented to the resolution of the inaugural general meeting (the fact that thisM and new N have been made voluntarily after the fact that the aforementioned consent was made cannot reverse the validity of the above consent). In addition, there is no limitation on the methods of preparing the resolution under the relevant statutes, and there is no other grounds that the plaintiffs asserted that the resolution is null and void, i.e., the reasons for the entry, etc.

C) However, except for Chapter 1, in the case of Cho X, which submitted a written resolution, excluding Chapter 2, 1, and even if the proxy prepared, but the proxy did not have any power of attorney, the person who passed a resolution with the consent of the inaugural general meeting for the establishment of the Intervenor Union is 344 (=351 - 7). The consent rate is 50.5% (344/681), and the above consent rate is 50.5% (344/681), so this part of the Plaintiffs’ assertion is without merit.

3) We examine defects related to the computation of the consent rate.

A) If the Defendant submitted a written consent to establish an association with the initial certificate of the personal seal impression and accepted the written consent of the above consenters, unless there is any objective evidence to verify that the written consent of the above consenters was forged, it is difficult to view the written consent prepared by the above consenters as the person without consent.

B) Considering that the Act on the Forgery and 25 Construction of Dried Scale 25 is aimed at preventing unnecessary administrative consumption of administrative power, it is sufficient to determine whether or not the seal imprinted and the seal imprinted are identical with that affixed to the written consent by the owner of a plot of land, etc., and barring special circumstances, such as that the consent is proven to have been forged, it is reasonable to deem that if the seal imprinted and the seal imprinted are identical to the written consent form, it shall be presumed that the consent form is genuine if the same (see, e.g., Supreme Court Decision 2009Du4845, Jan. 28, 2010).

Article 34, 45, 49, 52, 57, 58, 59, and 72 of Gap's evidence, and the result of the request for the appraisal of Eul's expert opinion and the result of the appraisal of the appraiser's remaining seal, comprehensively considering the overall purport of the arguments, ① In the event that the National Science Investigation Institute conducts an appraisal of ChoG, Parkba, ParkbaC, Kim Jong-D, this AE, Kim H, Kim H, Kim H, Kim H, Kim Jong-F, Hamm, SimbaM, Yellow QA, Hamba, SAP, SimU, Kim Jong-V, Kim Jong-W 19, it is presumed that there is no difference between the person whose name or seal was affixed to the blank, or the person whose name or seal was affixed on the establishment agreement of the Association, ② in the event that it is found that there is no difference between the person whose name or seal was found to be forged or found to be the one whose name or seal was affixed on the investigation agreement.

As a result of a comparison of the seals affixed on the register held in the Eup/Myeon/Dong office where each of the above persons has his/her domicile and the seal affixed on the written consent for the establishment of the association in the name, the remaining four persons except ParkP are different from the seal affixed on the register of association in the written consent for the establishment of the association.

According to the above facts and evidence, the above appraisal results of the National Science Investigation Agency (hereinafter referred to as "the appraisal results") are ① a copy of the seal imprint on the owner of the relevant land, etc.'s personal seal imprint certificate (the printed out of the seal imprint register) which can be seen as the original, and the identity of each association establishment consent and each owner of the relevant land, etc. is compared with the seal imprint on the blank by asserting that each owner of land, etc. is the seal imprint certificate, except in the appraisal, and the identity of each association establishment consent and the relevant owner of the land, etc. is not identified. ② In the case of the appraiser's letter, the appraiser must consider the change through a cans, output, etc. according to the computerization of the seal imprint certificate, and it is difficult to adopt the appraisal results as it is. ③ The appraiser's second priority is compared with the body kept by the owner of the relevant land, etc.'s personal seal imprint register to view it as the object of appraisal, and it is reasonable to determine whether the seal imprint on the consent letter was affixed by the owner of land, etc.

In addition, five cases where the court rendered a decision on the difficulty of argument on the ground of the failure to withdraw the stamp image, and two cases where the plaintiffs asserted that the withdrawal of the stamp image is inferior, such circumstance alone cannot be deemed to be the failure of the consent, and there is no other evidence to prove the forgery, and the plaintiffs' assertion on it is rejected.

C) Three persons withdrawing consent were submitted by AR, newN, and KimAW to the Defendant on July 2008, which was prior to the organization approval of the committee of promotion of this case. The fact that the above three persons’ certificate of personal seal impression is attached to the consent attached at the time of applying for the approval of the intervenor association. There is no dispute between the parties.

However, Articles 26(2) and 28(4) of the former Enforcement Decree of the Act on the Improvement of Urban Areas and Dwelling Conditions (amended by Presidential Decree No. 22815, Apr. 1, 2011) stipulate, “The outline of design of a building to be constructed after the consent, the total sum of expenses to be incurred in the removal and construction of a building, expenses to be incurred in the removal and construction of the building, expenses to be borne by the association, matters concerning ownership after the completion of the project, and matters concerning the association’s articles of association may be withdrawn only when the association has amended the articles of association.” Since no evidence exists to deem that such a change was made, the withdrawal of consent cannot be deemed lawful

Furthermore, even if the withdrawal of the above three persons’ consent was lawfully made due to changes in the above matters, insofar as there is no evidence to prove that the seal imprint affixed to the written consent for the establishment of the intervenor association was forged, the mere fact that the above three persons’ consent was used again at the time of the application for the establishment of the intervenor association cannot be denied the validity of their consent. Thus, the plaintiffs’ assertion on this is without merit.

Article 17(1) of the former Act on the Maintenance and Improvement of Urban Areas (amended by Act No. 10268, Apr. 15, 2010) requires a written consent to attach a certificate of seal impression to the written consent is to examine whether or not the seal imprint affixed on the written consent and the seal imprint affixed thereto are identical in relation to the authenticity of the consent. In light of the fact that Article 17(1)2 of the same Act provides that where a previous written consent is submitted, a new written consent may not be attached when preparing a written consent. Thus, the validity of a written consent attached to the written consent cannot be denied solely on the ground that the date on which a certificate of seal impression attached to the written consent was issued is prior to the designation of a rearrangement zone or

E) Sub-decisions

Ultimately, the number of persons consenting to the establishment of an association, excluding KimO, Simm, Mau, Ma Q 4, the identity of which is not recognized as identical to the foregoing paragraph (b) is 512 (=516 - 4), and the consent rate is 75.1% (512/681). Thus, at least 3/4 of the consent rate prescribed in the relevant statutes is satisfied. (4) The defect of the representative of the promotion committee of this case is the defect of the representative of the

In full view of the purport of the whole argument in Gap evidence No. 54, it is acknowledged that "a new member shall be elected without delay in the event that a member resigns voluntarily or is dismissed under paragraph (1)" under Article 18 (3) of the Rules of the Promotion Committee of this case. In this case, the newly appointed member's qualification becomes effective externally after the approval for change of the head of Si/Gun has been obtained."

However, inasmuch as there is no evidence to prove that there was a defect in violation of the relevant statutes or the regulations on the operation of an association in appointing an acting representative and carrying out the affairs on behalf of the association on behalf of the representative without delay, the entire operations of the association in charge cannot be deemed null and void solely on the grounds alleged by the Plaintiffs. Accordingly, the Plaintiffs’ assertion on this part is without merit.

4. Conclusion

Therefore, the part of the claim for nullification of the approval of establishment among the lawsuit of this case is unlawful, and the plaintiffs' remaining main claims and preliminary claims are dismissed. It is so decided as per Disposition.

The presiding judge, judge, Gimhae

Judges Song Jin-ho

Judge Cho Jong-jin