Plaintiff 1, et al., Counsel for the plaintiff-appellant of the deceased non-party (Law Firm Myeong, Counsel for the plaintiff-appellant)

Cheongju Market (Law Firm Seowon, Attorneys Kim Hyeong-sik, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2001Na10888 decided May 1, 200

August 30, 2017

Cheongju District Court Decision 2016Guhap10782 Decided March 23, 2017

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

On April 5, 2016, the Defendant revoked the approval of the housing construction project plan for the Intervenor joining the Defendant.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A. On October 19, 2004, the committee of the committee for the promotion of the Seo-gu Urban Development Project (hereinafter referred to as the “Seo-gu Urban Development Project”) was organized to promote an urban development project implemented in the area of approximately KRW 460,000 square meters in Seo-gu, Seo-gu, Seoul Special Metropolitan City (hereinafter referred to as the “instant urban development project”), and on May 4, 2007, the Chungcheongbuk-do governor publicly announced the designation of the instant urban development project area and the establishment of a development plan.

B. Upon the establishment of the urban development plan in the instant case, the committee for promotion of the instant urban development project was applied for collective land substitution from landowners in the instant urban development project zone to promote the instant urban development project by collective land substitution method.

C. The Nonparty owned the land indicated in the attached list (hereinafter “instant land”) within the instant urban development project zone, and the Nonparty submitted a collective land substitution application with respect to the instant land owned by himself/herself to the committee for the promotion of the Western Partnership on June 7, 2007, as described in the above B.

D. On October 26, 2007, the cooperative was authorized to establish the instant urban development project implementer as the implementer of the instant urban development project. After that, on November 15, 2007, the cooperative held a general meeting for establishment on the establishment of an association on November 15, 2007, stating that “the instant urban development project shall be completed by constructing and selling an apartment on the site of an apartment building at a series of stages for the construction project,” and resolved on the articles of association and the replotting execution rules.

E. Around November 2012, a tide cooperative prepared a replotting plan after obtaining authorization of an implementation plan for the instant urban development project by using the replotting method from the Defendant with regard to the instant urban development project. Around March 20, 2012, a tide cooperative provided that the part corresponding to 3 block (29-1 block 1 block (hereinafter “project site in this case”) among the instant urban development project zone should be set up by collective land substitution and build multi-family housing. Around March 20, 2013, it provided the desired members with a collective land substitution application for the instant project site and submitted a written intent for sale from its members. On June 20, 2013, the Nonparty also submitted a written intent to sell the instant land to a collective land substitution association.

F. On December 14, 2013, a water supply cooperative partially amends a land substitution plan by reflecting such content, and obtained authorization for a land substitution plan from the Defendant on April 25, 2014. On June 19, 2015, a group of land substitution with respect to the instant land, etc. is 30,642 square meters in the instant project site, and obtained authorization for modification of a land substitution plan including the contents to be designated as a land substitution.

G. Meanwhile, the Intervenor joining the Defendant (hereinafter “ Intervenor”) purchased the instant project site and constructed apartment buildings with 600 households on the ground thereof (hereinafter “instant housing construction project”), and jointly conducted with the Intervenor, a registered business entity, pursuant to Article 10(2) of the former Housing Act (hereinafter “ Intervenor”) as a housing association established pursuant to Article 32 of the former Housing Act (amended by Act No. 13805, Jan. 19, 2016; hereinafter the same).

H. On the basis of the amount of right, the Intervenor would acquire approximately 76.2% shares (25,942,942,898 won in the land secured from owners) of the project site of this case, which is the land scheduled for replotting, ±111,00 won in the unit price of land per land located in the land scheduled for replotting ± approximately 23,350.9 square meters in the area of right, which is divided by 30,642 square meters in the area of the project site of this case) based on the amount of right, and then filed an application for the approval of the housing construction project plan with the Defendant by obtaining a written consent to the use of the land in the instant project site as of March 30, 2016.

(i) On April 5, 2016, the Defendant issued a disposition for approval of the housing construction project plan with the content that the intervenors are joint project executors and the housing construction site is 30,642 square meters (hereinafter “instant disposition”) and publicly announced on April 8, 2016 as the public notification of Cheongju-si, the project site of which is 30,642 square meters.

(j) On May 16, 2016, the Intervenor would not enter into a trade consultation with some owners, including the non-party with approximately 13% of the share in the instant project site. On May 18, 2016, the Intervenor Mutual Aid Association requested the Mutual Aid Association to withdraw the designation of substitute land and to change the land owned by the non-party, etc. into the settlement of money. On May 18, 2016, the Plaintiff filed an application with the Defendant for authorization of change of the replotting plan stating that “The Plaintiff would cancel the designation of collective substitute land with respect to the non-party, etc. and implement the settlement of money”

(k) On May 23, 2016, the Defendant sent reply that the land designated as substitute land is not subject to authorization for modification of the replotting plan due to modification of minor matters pursuant to Article 29(2) of the Urban Development Act and Article 60 of the Enforcement Decree of the same Act. On May 24, 2016, the court notified the Nonparty of the revocation of collective replotting pursuant to Article 40(8) and (9) of the Articles of association of the court, and the change was made with money liquidation. On May 25, 2016, the court issued a written consent for the use of the entire land to the Intervenor’s ordinary village union on the instant project site.

Other. The Nonparty died on August 8, 2016 while the instant lawsuit was pending, and the Plaintiffs, the inheritor of the Nonparty (hereinafter “the deceased”) succeeded to the instant lawsuit.

[Based on Recognition] In the absence of dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1 through 4, 8 through 10, 23 (including paper numbers, hereinafter the same shall apply), Eul evidence Nos. 1, 3 through 5, 9, 16, 17, 19, 21, 28, 29, 31 and 32, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiffs' assertion

In order for participants, a joint project proprietor under Article 10(2) of the former Housing Act, to obtain approval for the housing construction project plan, at least 95/100 of the project site of this case, which is the housing construction site, shall be secured pursuant to Article 16(4)1 and 2 of the former Housing Act, or the right to use the project site of this case shall be secured. However, the intervenors failed to secure the deceased’s right (hereinafter “the deceased’s right to share”) with approximately 13% of the value of the right to the project site of this case based on the amount of the right. Meanwhile, the court did not have any right to obtain the Intervenor’s consent to the land use of the project site of this case, which is the land reserved for replotting in Pyeongtaek-do. Accordingly, even though the instant disposition did not meet the requirements prescribed in Article 16(4)4 of the former Housing Act, the Defendant’s consent to the land use should be revoked by unlawful means.

2) Defendant and the Intervenor (hereinafter referred to as “Defendant, etc.”)’s assertion

A) In applying for collective land substitution, the Deceased voluntarily submitted a written intent to sell collective land substitution to the court room and intended to sell its shares to the project implementer. As such, the Deceased granted the right to consent to use his/her share to the court room at least implicitly and explicitly. Therefore, the court room union may grant the Intervenor’s consent to the share of the Deceased. Therefore, the instant disposition is lawful under the condition that the Intervenor satisfies the requirement that “the Intervenor has secured the right to use the housing site” as stipulated in Article 16(4) proviso 2 of the former Housing Act.

B) Even if the Intervenor was unable to secure the right to use the instant project site at the time of the instant disposition, on May 24, 2016, by deeming that the Deceased did not explicitly granted the right to consent to use his/her share, the Bank notified the Intervenor, including the Deceased, and its members who did not sell his/her share in the instant project site (hereinafter “the Deceased, etc.”) of the settlement of money to cancel the collective land substitution and settle money in accordance with Article 40(8) and (9) of the Articles of association of the Bank, and the shares of the Deceased, etc. were excluded from the replotting. Accordingly, the monetary settlement against the Deceased, etc. falls under the “case of changing minor matters” under Article 29(2) of the Urban Development Act and Article 60(1)4 of the Enforcement Decree of the same Act, and there is no need to obtain authorization to change the replotting plan. After that, the Bank thereafter consented to the use of the instant land to the Intervenor’s land in the instant project site.

C) Even if the instant disposition was unlawful and its defect was not cured, in light of the importance of the instant housing construction project, the cost of the project, the degree of the progress of the project, and the damages to which many interested parties will suffer, etc., revocation of the instant disposition is considerably inappropriate for public welfare, and thus, there is a need to render a ruling of assessment.

(b) Relevant statutes;

It is as shown in the attached Form.

C. Determination

1) Issues of the instant case

According to the main sentence of Article 16(4) of the former Housing Act, a housing construction business entity who intends to obtain approval for a housing construction project plan shall secure ownership of the housing construction site. According to the proviso of Article 16(4) of the same Act, even if the ownership is not secured, the said approval may be obtained by securing the right to use the

At the time of the instant disposition, the Deceased owned the instant land within the instant project site, which constitutes approximately 13% of the shares in the instant project site due to the designation of land substitution substitution. However, the Intervenor, who is the subject of the instant construction project, was not granted the right to use the instant share in the form of “written consent to land use,” etc. directly by the Plaintiff, but only obtained the consent to use the entire project site, including the deceased’s shares.

In relation to this, the plaintiffs did not delegate the right of the deceased to use the deceased's share, so it cannot be deemed that the intervenors, who are the main body of the housing construction project, secured the right to use the deceased's share out of the project site of this case, which is the housing construction site. Accordingly, the plaintiffs asserted that the disposition of this case is unlawful because the requirements of the disposition of this case are incomplete.

On the other hand, the defendant et al. asserted that in light of various circumstances, the deceased's right to consent to the use of the land in this case or the shares of the deceased in this case can be deemed to have been explicitly and implicitly delegated to the court below, and eventually the intervenors secured all the right to use the land in this case with the consent to the use of the court below, the defendant et al. asserted that the disposition in this case is lawful by satisfying the requirements

Therefore, the legitimacy of the disposition of this case depends on whether the intervenor secured the right to use the project site of this case, and this depends on whether the consent to use the project site of this case was effective as the above right to use the project site of this case, which is not the owner, and the issue of this case ultimately is whether the deceased granted the right to consent to use the share of the deceased, and this is examined.

2) Whether the deceased granted the right to consent to use the facility

Comprehensively taking account of the facts found above and the following circumstances revealed by the evidence as seen earlier, it can be acknowledged that the deceased gave his/her right to consent to the use of the deceased’s share explicitly or implicitly.

A) Characteristics of the instant urban development project

The instant urban development project has been promoted from the beginning to the present date on the premise that the land is sold through a collective land substitution and multi-family housing (multi-family housing) is constructed on a collective land substitution site. In the event of collective land substitution, it is impossible for co-owned share holders who have received collective land substitution to implement the construction project on their own. In addition, given that co-owned share owners are not able to use and benefit from collective land substitution based on their co-ownership, it is the only way to realize the right to sell the land or share itself to the housing developer.

Unlike an urban development project where individual land substitution is conducted, in the case of the instant urban development project where collective land substitution is conducted from the beginning, a housing construction project which constructs collective housing in the project site where collective land substitution is conducted is closely related to the instant urban development project itself, which is not considered to have been separated from the instant urban development project itself. In order to complete the instant urban development project, a housing construction project should be implemented in the instant project site, which is a collective land substitution site. For this purpose, a single multi-family housing construction project operator can undertake a housing construction project to purchase the instant project site. Accordingly, all members who have received collective land substitution in the relevant village association must sell their own land to a single buyer, and the deceased was clearly aware of such situation (the first oral argument report in the present instance).

In addition, if a partner who received a collective land substitution fails to sell his/her own land or collective land substitution by asserting that his/her right to purchase more than the amount of appraisal and assessment, a joint housing construction project cannot be implemented, and the entire urban development project of this case cannot be implemented as a whole, the partners who received a collective land substitution bear the obligation to sell his/her own land or co-ownership to the joint housing construction business operator as a kind of cooperation obligation against the project operator (Article 40(8) and subparagraph (b) of the Articles of association of the bank association). In addition, the members cannot claim an expensive purchase compared to the amount of the right to appraisal and assessment, and if a partner claims an expensive purchase in violation of this provision, the cooperative may substitute the members with money settlement or another place (Article 40(8) and (9) of the Articles of association of the bank association). Members, including the deceased, approved the articles of association with the consent of a large number of persons at the time of the establishment general meeting (Article 32(b) or (32).

Therefore, in the course of the instant urban development project, members of the housing construction association, who received a collective land substitution, were presumed to be selling their land as the amount of the right according to appraisal and assessment to the housing construction project owner. The association members, who do not want the project, are reasonable to receive individual land substitution rather than the collective land substitution, so they should not make a collective land substitution application to the housing construction association at the beginning. In addition, if there is a change in the perception to oppose the project after the collective land substitution, they should withdraw their intent within the prescribed period and apply for change to receive individual land substitution or cash settlement. If the association members, without taking such measures, interfere with the progress of the project by the collective land substitution method, the housing construction association can change such members to the land subject to financial liquidation or individual land substitution.

B) Consent to the instant urban development project by the Deceased

On June 7, 2007, the deceased already filed an application for collective land substitution with the committee for the committee for the committee for the committee of the committee, and thereafter, from March 2013 to June 3, 2013, in order to determine the applicants for collective land substitution, the deceased sent a notice to the union members several times from March 2013 to June 3, 2013, and notified the union members of the purport that “the union members who intend to apply for collective land substitution shall send a letter of intent to sell the pertinent land to the union” (the evidence No. 11 and No. 11 B and No. 6). On June 20, 2013, the deceased sent a letter of intent to sell the instant land to the supporters association, and clearly expressed their intent to request the deceased to determine the land substitution plan by designating

In light of the characteristics of the instant urban development project, it can be deemed that the deceased consented to the progress of the instant urban development project by acquiring co-ownership shares in the land scheduled to be constructed, selling it to the housing developer, and having the apartment house constructed.

Even after the submission of the above sale intent, the deceased did not withdraw a collective land substitution application or withdraw a sale intent, and the plaintiffs, the inheritor of the deceased, expressed their intention to exclude them from the collective land substitution object. Thus, the deceased or the plaintiffs' consent on the direction of the progress of the urban development project of the cooperative in the manner mentioned above, may continue to exist until now.

C) Granting comprehensive rights to use the deceased’s share

Members, including the Deceased, filed a request for collective land substitution, expressed their intent to consent to the promotion of the instant housing construction project in the instant project site by submitting a written intent for sale to the Seocho Cooperative, and such collective land substitution is not changed to an individual land substitution, insofar as the members are not changed to the individual land substitution, there is no actual way of realizing rights, such as use and profit-making, except for the sale of their own land according to the amount of their own share calculated by appraisal and assessment, so there is no de facto interest in the use and profit-making of

Therefore, the meaning of the consent to the promotion of the instant urban development project on the instant project site, which is premised on the execution of the instant housing construction project, is that the members clearly indicated that the housing construction project should be collectively substituted by submitting a written intent to sell one’s own land, etc., can be deemed as allowing the housing construction by granting a comprehensive right to use the land or shares to the housing construction association for the purpose of promoting the instant urban development project. In addition, insofar as it was clearly planned that the housing construction project operator will construct an apartment house at the planned site for collective replotting, it is reasonable to view that the housing construction association’s comprehensive right to use the land granted by the housing construction association to the housing construction project operator is also included in the right to consent to use the land for the instant

If so, even if a member applies for collective land substitution, the right to use the land does not grant the right to use to a cooperative, and thus, it is possible to prevent the progress of the entire urban development project of this case. This is inconsistent with the application for collective land substitution by consenting to the implementation of the urban development project of this case by constructing collective housing through collective land substitution, and thus, it is difficult to accept this logic.

Therefore, as seen earlier, inasmuch as the deceased received a notice of collective land substitution application from the Seocho Cooperative, and expressed clearly his/her intent to apply for collective land substitution by submitting a letter of intent to sell to the Seoseo Cooperative, it is reasonable to deem that the deceased granted a comprehensive right to use, including the right to consent to use the deceased’s share.

D) The process of implementing an urban development project through a consortium or a group replotting is: ① an application for collective replotting and a replotting procedure for land owners’ urban development cooperatives; ② a housing construction project implementer’s selection of housing construction project implementer in consideration of self-sufficiency and construction capacity; ③ a housing construction project implementer’s project approval; ④ sale of rights, such as land, to housing construction project implementer; ⑤ a union member’s submission of collective land substitution application and an association to sell intent, barring special problems in the selection of a project implementer. However, a union member is obligated to respect and comply with the results of the selection, unless a union member expressed a collective land substitution intent and an intention for sale. If a union member expressed an intention for collective land substitution, the consent to the housing construction project implementer is naturally scheduled to obtain a separate consent from individual members, and if an implementer selected as a housing construction project implementer fails to comply with the same process, it would cause damage to the association members by taking into account the fact that the project’s progress is delayed, and it is natural that the association’s delegation of authority can be considered as a whole.

3) Sub-determination

Therefore, based on delegation of the deceased’s right to consent to use, a court’s approval to use the entire project site of this case, including the part owned by the deceased, constitutes a valid use right based on legitimate authority, and the approval of the construction project plan of this case based on such approval is lawful pursuant to Article 16(4)2 of the former Housing Act. Therefore, the Plaintiff’s assertion on the premise contrary thereto is lawful. Accordingly, without examining the remainder of the assertion by the Defendant, etc. that the deceased was excluded from a group substitute and was subject to monetary liquidation pursuant to the articles of association of the court’s association related to monetary liquidation, the court’s approval of the construction project of this case cannot be accepted.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance which accepted the plaintiff's claim is unfair with different conclusions. Thus, the court of first instance which accepted the appeal by the defendant and the intervenor and dismissed the plaintiff's claim. It is so decided as per Disposition.

[Attachment Omission]

Judges Shin Jae-sop (Presiding Judge)