Plaintiff 1 and 23 others (Law Firm Sejong, Attorneys Kim Jae-re, Counsel for the plaintiff-appellant)

Head of the Gu of Daegu Metropolitan City

Jungdong District Housing Reconstruction and Improvement Project Association (Attorney Kim Jong-sub, Counsel for defendant-appellant)

December 24, 2010

1. The plaintiffs' primary and preliminary claims that have been changed in exchange in the trial are all dismissed.

2. The costs of the lawsuit, including the part resulting from the supplementary participation, are borne by the Plaintiffs.

In the first instance judgment, the decision is revoked. In the first instance judgment, it is confirmed that the Defendant’s approval for establishment of the Defendant’s assistant intervenor (hereinafter “ assistant intervenor”) against the Jungdong District Housing Reconstruction Promotion Committee established on August 3, 2007 is invalid. In the first instance, the Defendant’s approval for establishment of the assistant intervenor against the Jungdong District Housing Reconstruction Promotion Committee established on August 3, 2007 is revoked (the Plaintiff corrected the Defendant from the first instance court to the head of the Daegu Metropolitan City Si-gu Housing Reconstruction Promotion Committee with the permission of this court pursuant to Article 14 of the Administrative Litigation Act, and the purport of the claim was also exchangedly modified as above).

1. Basic facts

A. (1) On March 21, 2006, the owners of the land or buildings located in the Daegu Suwon-gu, Daegu-dong (number 1 omitted), filed an application with the Defendant for the designation of the rearrangement zone as the rearrangement zone for 463,381 square meters (hereinafter “instant rearrangement zone”).

(2) On June 12 of the same year, the Daegu Metropolitan City Mayor established a basic plan on the designation of a zone to be rearranged (number 2 omitted) with the area to be 57,98 square meters in Jung-gu, Daegu as a zone to be rearranged.

B. (1) On July 12, 2006, the committee for promotion of the reconstruction of the Jungdong District consisting of residents of the Jungdong District (hereinafter “instant committee for promotion”) filed an application for approval with the Defendant stating that “25 of 297 building owners, among 297 building owners, consented to the establishment of the instant committee for promotion, among 53,251 square meters of land in the Daegu Suwon-dong (number 3 omitted) and building owners in the area where the instant application for approval was filed.”

(2) On August 25, 2006, the Defendant approved the establishment of the promotion committee of this case (hereinafter “instant approval disposition”) inasmuch as 212 of the total number of 297 landowners and building owners in the instant application area consented and satisfied the majority (hereinafter “instant approval disposition”).

C. (1) On January 22, 2007, the Daegu Metropolitan City Mayor issued a public announcement of the designation of the rearrangement zone as to the 464 parcel number 53,396 square meters (hereinafter “instant rearrangement zone”) in the Dong-dong (number 4 omitted) Jung-gu, Daegu-gu (hereinafter “instant rearrangement zone”).

(2) The instant improvement zone includes both the instant application area and the Daegu Suwon-dong (number 5 omitted) 15 square meters added to the instant improvement application area.

(3) At the time, there were 307 land and buildings owners, 146 land owners, and one building owner in the instant rearrangement zone.

D. The instant promotion committee obtained consent to establish the association of auxiliary intervenors (hereinafter “instant consent”) by obtaining written consent (hereinafter “instant consent”) from the owners of the land or buildings located in the instant improvement zone, and held an inaugural general meeting on March 8, 2007.

본문내 포함된 표 3. 조합설립 및 정비사업 내용 동의 ㈎ 신축건물의 설계개요 대지면적(공부상면적) 건축연면적 규모 기타 53,396㎡ 163,353.68㎡ 지하 2층 지상 15~16층 부대복리시설 ㈏ 건축물 철거 및 신축비용 개산액 철거비 신축비 기타 사업비용 합계 1,675,695,725원 174,223,690,123원 204,830,329,552원 380,729,715,400원 ㈐ 건축물 철거 및 신축비용의 분담사항 ① 조합정관에 따라 경비를 부과하고 징수하며, 관리처분시 가청산하고, 조합청산시 청산금을 최종 확정함 ② 조합원의 소유자산의 가치를 조합정관이 정하는 바에 따라 산정하여 형평의 원칙에 의거 조합 정관에서 규정한 관리처분기준에 따라 비용 및 수익을 균등하게 부담·배분함 ③ 시공사에 지급할 공사금액 및 사업관련 제반비용은 주택 및 부대복리시설의 일반분양 수입금과 조합원총회에서 결의되거나 서면동의한 조합원분담금으로 우선 충당하고, 부족금이 발생할 경우 조합정관 및 관리처분기준에 따라 공평하게 분담함 ㈑ 신축건물 구분소유권의 귀속에 관한 사항 ① 조합정관의 관리처분기준에 따르며, 주택을 소유한 조합원의 신축건축물에 대한 분양평형 결정은 조합원 분양신청 및 종전권리가액의 다액순에 의하고 동·호수 결정은 조합정관의 규정에 의한 전산추첨 등에 의한다. 단, 경합이 있는 경우에는 조합정관 및 관리처분기준에 의한 방법에 따름 ② 상가 등 복리시설의 소유자는 조합정관 및 관리처분기준에 의하여 종전 토지 및 건축물의 가치를 고려하여 새로이 설치되는 복리시설을 공급받되, 동·호수 결정은 관리처분계획이 정하는 바에 따른다. 단, 복리시설을 설치하지 아니하는 경우 또는 조합정관 제41조 제9호에 해당하는 경우 주택을 공급받을 수 있음 ③ 사업시행 후 분양받을 주택 등의 면적은 분양면적(전용면적＋공용면적)을 기준으로 하며, 토지는 분양받은 주택 등의 면적비례에 따라 공유지분으로 분양함 ④ 조합원에게 우선분양하고 남는 잔여주택 및 상가 등 복리시설은 관계법령과 조합정관이 정하는 바에 따라 일반분양함. 토지는 사업완료 후 지분등기하며 건축물은 입주조합원 각자 보존등기함 ⑤ 조합장 선정동의 : 본 조합의 대표자(조합장)는 조합원총회에서 조합정관에 따라 선출된 자를 조합장으로 하는데 동의함 7. 동의내용 위와 같이 본인은 중동희망지구 주택재건축사업시행구역안의 토지등소유자로서 제3호 내지 제6호의 사항을 숙지하고 동의하며, 도시및주거환경정비법 제16조 제2항, 제3항의 규정에 의한 조합설립에 동의합니다. 아울러 제3호의 “조합설립 및 정비사업 내용 동의”는 사업시행인가내용, 시공자 등과의 계약내용 및 제 사업비 지출내용에 따라 변경될 수 있으며, 동내용이 변경되거나 이에 따라 조합원 청산금 등의 조정이 필요한 경우 추후 조합원 총회에서 의결된 내용으로 변경키로 하고 조합원 총회에서 결정된 내용에 대하여 별도 동의서 제출 없이 본 동의서로 갈음하는 것에 동의합니다.

E. On August 3, 2007, the Defendant: 81% of the owners of land or buildings in the instant rearrangement zone [368 persons (247 persons who own land and buildings + 121 persons who own land or buildings) / 454 persons who own land or buildings]; and 77.89% of the land size in the instant rearrangement zone (i.e., consent land size 40,824 square meters / total land size 52,406 square meters) was approved by the Intervenor (hereinafter “instant authorization disposition”).

F. The Plaintiffs are the owners of land or buildings located in the instant rearrangement zone. Meanwhile, on July 20, 2009, the ○○○, the owners of land or buildings located in the instant rearrangement zone, died on July 20, 209, while the pending trial was pending, and Plaintiff 19 and his/her children, Plaintiff 20, 21, 22, 23, and 24, who were co-inheritors, took over the instant litigation procedure as co-inheritors.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 3 and 4 (including each number), the purport of the whole pleadings

2. Summary of the plaintiffs' assertion

(a) First proposal;

In the interpretation of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the "Do Act"), where one person owns a lot of land or a large number of buildings, it is unreasonable for the supplementary intervenor to calculate the number of consenters according to the number of parcels of land or buildings regardless of the number of parcels of land or buildings, but it is unreasonable for the supplementary intervenor to calculate the number of consenters according to the number of parcels of land or buildings, and if the supplementary intervenor correctss the number of consenters by correcting it, it does not meet

(b) Chapter 2;

The instant consent form is invalid as follows, and it does not reach the statutory consent ratio of the establishment of the Intervenor if it does not exclude the invalid consent form. As such, the instant authorization form constitutes grounds for invalidation or revocation.

(1) Since the consent form in Nonparty 1’s name is a disturbance, it is null and void in light of the purport of Supreme Court Decision 2009Du4845 Decided January 28, 2010, since “the total cost of removal and construction of new buildings” is a disturbance.

(2) The written consent of Nonparty 3, 4, 17, 5, and 6 is null and void in light of the purport of the Supreme Court Decision 2009Du4845 Decided January 28, 2010, since the consent was obtained in a state where the part of “the total cost of removal of a building or the total cost of construction of a new building” was disturbed, and thereafter, the supplementary intervenor’s consent was stated as being able to receive the portion of disturbance from the supplementary intervenor without his/her consent.

(3) The written consent of Nonparty 7 and 8 is void because the certificate of seal impression is not attached.

(4) The committee of promotion of this case has obtained a different letter of agreement from that of this case to Nonparty 2 and 14, who owns only the land in the rearrangement zone of this case (which does not stipulate matters concerning the burden of expenses, but states that a person who owns only the land in a detached zone does not qualify as an association member) and thus has no validity of consent.

(5) The written consent of Nonparty 5, Nonparty 17, Nonparty 6, Nonparty 4, 3, 9, 10, 11, 12, and 13 was written prior to January 22, 2007 when the designation and announcement of the instant rearrangement zone was made. At the time of the preparation, “the outline of the design and outline of the newly constructed building, and the estimated amount of the cost required for the removal and construction of the building.” Since the instant approval disposition against the instant promotion committee was null and void, and thus, each of the written consent is null and void.

(c) Chapter 3;

The instant approval disposition against the instant promotion committee is null and void for the following reasons, and the instant approval disposition, which was concluded upon the application of the promotion committee of this case, the approval approval of which is null and void, also constitutes grounds for invalidation or revocation.

(1) The instant approval disposition was issued on July 12, 2006, before January 22, 2007, which was the date of the designation and public notice of the instant rearrangement zone. As such, approval for establishment of a reconstruction association established without the designation and public notice of a rearrangement zone cannot be granted in violation of the purport of the former Do Government Act and the system of the promotion committee. Such defects are serious, and are objectively obvious and invalid.

(2) If the zone scheduled to implement the project is modified due to the designation of the rearrangement zone, the consent for the establishment of the promotion committee shall be new from all the members of the rearrangement zone after the designation of the rearrangement zone in this case. Thus, the approval disposition in this case is null and void.

D. Therefore, I would like to seek a confirmation of invalidity of the authorization disposition of this case and seek a revocation of the authorization disposition of this case as preliminary.

3. Determination

A. Determination as to the First Claim

(1) The Do Government Act and the Enforcement Decree of the same Act provide that one owner of a plot of land, etc. shall be calculated as one owner regardless of the number of parcels of land or buildings in the case of a housing redevelopment project or an urban environment rearrangement project (Article 28(1)1 (c) of the Enforcement Decree of the Do Government Act), but in the case of a housing reconstruction project such as this case, one owner of a plot of land, etc. does not have a provision on the method of calculating the number of consent for the case of owning a lot of parcels of land or buildings. (2) Since the housing reconstruction project is a project with weak public interests than the housing redevelopment project, it is necessary to faithfully interpret the guarantee of property rights of the people. (3) Article 48(2)6 of the Do Government Act provides that one house can be supplied where one household owns more than one house based on the management and disposal plan. In light of the fact that the owners of land, etc. located in the housing reconstruction project, or the State, local government, etc. can only supply housing units.

B. Determination as to Section 2

(1) The validity of the written consent of Nonparty 1

The fact that “the total cost of removal of buildings and the total cost of new construction” is a disturbance in the written consent of Nonparty 1 does not conflict between the parties. However, according to the written evidence Nos. 6 and 7, Nonparty 1 merely consented to the blank consent after hearing the explanation of the cost, etc. from the persons related to the supplementary intervenor’s promotion committee, and it can be recognized that the written consent stating the cost, etc. on April 2008 is re-written. Therefore, it is difficult to deny the validity of the written consent of Nonparty 1.

(2) The validity of the written consent of Nonparty 3 and four others

Although there is no dispute between the parties that the Promotion Committee of this case obtained consent from some owners in the early stage of implementing the reconstruction project with the blank consent form, it is difficult to view that Nonparty 3 and four other parties did not agree, in full view of the respective descriptions and arguments in subparagraphs 1 through 5, 8-1, and 2 of subparagraph 5-1 of subparagraph 5-2, the supplementary intervenor again obtained consent from the owners of land, etc. prior to the approval of the inaugural general meeting and the establishment of the association.

(3) The validity of the written consent of Nonparty 7 and 8

According to the statement No. 25, it is possible to recognize the fact that the certificate of personal seal impression is attached to the written consent of the non-party 7. Thus, according to the fact inquiry conducted by the court of the trial on the head of the Daegu Metropolitan City, Daegu Metropolitan City, the non-party 8 is treated as non-party 8 and it is not necessary to dispute the validity of the written consent

(4) The validity of the written consent of Nonparty 2 and 14 others

Article 19 of the former Do Government Act (amended by Act No. 8785 of Dec. 21, 2007), which applies to the instant case, provides that members of a cooperative shall be “owners of land, etc..” In a housing reconstruction project, “owners of land, etc.” under Article 2 Subparag. 9 (b) of the former Do Government Act shall be “owners of buildings and appurtenant land located within the rearrangement zone; and (ii) owners of housing and appurtenant land as prescribed by the Presidential Decree, and owners of appurtenant facilities, welfare facilities, and appurtenant land located within the rearrangement zone; thus, owners of real estate in the instant rearrangement zone can only become members of the auxiliary intervenor; only one owner of the buildings or land cannot become members of the auxiliary intervenor; and therefore, the non-party 2 and 14 owners of only one of the buildings or land cannot become members of the cooperative; and therefore, the written consent to purchase is invalid even if only the matters on the burden of expenses are not stated in the purchase agreement.

(5) Nonparty 5 and nine others’ written consents

According to the statements in Gap's evidence 10, 11, 13, and 14-1, Eul evidence 5-5-1, Eul evidence 5-5-1, and Eul evidence 1-5, and facts recognized earlier, each of the above written consent states "a summary of new construction building" as "53,396 square meters," so it can be acknowledged that the area of the site is identical to the rearrangement zone of this case. Thus, the design outline, etc. of the newly constructed building at the time of the formation of the instant written consent cannot be said to have not been determined. In addition, the promotion committee of this case merely holds the status of delivering the land or building owners' consent to establish the association in the rearrangement zone of this case on behalf of the defendant, and it is not the other party directly obtaining consent. Thus, it cannot be deemed that the establishment of the committee of promoters of this case becomes null and void and void each of the above written

(6) Therefore, the plaintiffs' above assertion is without merit.

C. Judgment on the third ground for appeal

(1) Determination of defects in the approval disposition of this case conducted before the designation of the rearrangement zone

(A) According to Article 13(1) and (2) of the former Do Government Act (amended by Act No. 9444 of Feb. 6, 2009), where a person, other than the head of a Si/Gun or the Korea Housing Corporation, intends to implement a rearrangement project, an association consisting of “owners of land, etc.” shall be established, and where such association is intended to be established, an association establishment promotion committee 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. According to Article 2 subparag. 9(b) of the same Act, “owners of land, etc.” in a housing reconstruction project refers to (1) owners of buildings and appurtenant land located within a rearrangement zone; (2) owners of appurtenant and annexed land located within an area other than a rearrangement zone; (3) owners of land and the head of a Si/Gun shall apply for the designation of a rearrangement zone including a rearrangement zone and the size thereof; and (4) the scope of the designation or announcement of a rearrangement zone shall be made under the Act.

Therefore, in order to determine whether the above defect is so serious and clear as to whether an administrative disposition is null and void, the mere fact that there is an illegality in the disposition is insufficient, and it is objectively obvious that the defect violates important parts of the law and regulations. In determining whether the defect is serious and clear, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective, and at the same time, reasonable consideration should be given on the specificity of the specific case (see Supreme Court Decisions 2003Du2403, Nov. 26, 2004; 2005Du11937, Sept. 21, 2007; 2005Du1937, etc.). Even if an administrative agency rendered an administrative disposition by applying the provisions of a certain Act to a certain legal relationship or factual basis, it is obvious that the legal relationship cannot be applied to a case where it is obvious that the administrative agency applied the above provision, despite the absence of room for dispute, and thus, it cannot be seen that there is an objective and obvious error in its interpretation.

Unlike Article 13(2) of the former Do Government Act (amended by Act No. 9444 of Feb. 6, 2009), which applies to this case, Article 13(2) of the former Do Government Act (amended by Act No. 944 of Feb. 6, 2009), there was no provision that limits the timing of consent of the owners of land, etc. regarding the formation of the promotion committee to the after public announcement of designation of the improvement zone. (2) The Minister of Construction and Transportation enforced and enforced the improvement project association as of September 2, 2003 pursuant to the "Guidelines for the Establishment of the Promotion Committee of the Rearrangement Projects", where the promotion committee is constituted before June 30, 203, it cannot be viewed that the approval of the promotion committee is possible before December 31, 200, regardless of whether the basic plan for designation of the improvement zone or the basic plan for urban and rural improvement, or that the approval of the promotion committee is void before the cancellation of the approval of the plan.

(B) Defect in the approval disposition of this case and illegality in the approval disposition of this case

Furthermore, in light of the following: (a) whether the instant authorization disposition becomes null and void due to the defective approval disposition that does not constitute null and void, (b) the Plaintiffs cannot dispute the instant authorization disposition with the lapse of the objection period; (c) the purpose of which the committee of promoters which received the approval for establishment can apply for the authorization for the establishment of a redevelopment project is to minimize residents disputes related to the implementation of the redevelopment project and facilitate the implementation of the project; and (c) there is no separate organization for authorization for the establishment of another promotion committee or the association in the rearrangement zone other than the instant promotion committee; and (d) there is no separate organization for authorization for the establishment of the redevelopment project; and (e) there is a significant change in the legal status of land and building owners in the rearrangement project zone to the extent that it is impossible to return to the establishment before the establishment of the project, and thus, the invalidation and revocation of the authorization for establishment of the association is not necessarily limited in terms of legal stability or public interest. Accordingly, there is no ground for the Plaintiffs’ assertion in this part.

(2) Determination of non-compliance with the procedure of re-approval for the establishment of the promotion committee after the designation of the improvement zone

As seen earlier, although the rearrangement zone in this case expanded more than the rearrangement zone in this case at the time of the approval disposition, the rearrangement zone in this case was included in all of the rearrangement zone in this case at the time of the approval disposition, and 212 persons exceeding the majority of the landowners and building owners in this case at the time of the approval disposition in this case already consented. Thus, even if the rearrangement zone in this case was designated more than the rearrangement zone in this case after the approval disposition in this case, it is deemed that there is no need to obtain the approval of the promotion committee from the landowners and building owners in this case. Accordingly, the plaintiffs' above assertion in this case

4. Conclusion

It is so decided as per Disposition by the assent of all participating Justices on the bench. The plaintiffs' primary and conjunctive claims that have been exchangedly changed in the trial are dismissed as they are without merit.

[Attachment]

Judges Kim Chang-chul (Presiding Judge) Kim Jong-ho

1) Of the instant pending application area, six parcels were reduced or changed differently from the actual area.

2) The former Do Government Act was amended by Act No. 9444 on February 6, 2009 to restrict the timing of consent of the owners of lands, etc. regarding the formation of a promotion committee by the public announcement of the designation of an improvement zone. Article 13 (Establishment of Associations and Organization of Promotion Committee) (2) Where it is intended to establish an association pursuant to paragraph (1) of the same Article, the former Do Government Act shall establish a promotion committee for establishment with the consent of a majority of the owners of lands, etc., including the chairperson, and the head of Si/Gun in accordance with the methods and procedures prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs after the public announcement of designation of an improvement zone under Article 4 (referring to a decision to implement a housing reconstruction project in an area other than the improvement zone in accordance with Article 12(5)).

3) Article 28(1)5 of the former Enforcement Decree of the Do Government Act was deleted by the amendment of Presidential Decree No. 21679 on August 11, 2009.