[1] Whether the validity of the association establishment resolution of the association of the association for the housing reconstruction project implementer is the requirement for exercising the right to claim sale

[2] In a case where the consent of the owners such as land for the establishment of a housing reconstruction and improvement project association was made by the standard written consent of the Ministry of Construction and Transportation, the case holding that the contents of the above standard written consent cannot be viewed as unlawful because it

[3] Criteria for determining whether a housing complex is a single housing complex under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents

[1] A project implementer in a housing reconstruction project is established by the authorization and registration of the association establishment of the competent administrative agency, and the consent of owners, such as land for the establishment of the association (hereinafter “association establishment resolution”) is merely a procedural requirement required for the administrative disposition such as the authorization of the association establishment. Thus, even if there is a defect in the association establishment resolution, the association association still has the status of a project implementer as long as the disposition of the association establishment is revoked or is not null and void automatically. Therefore, where a lawsuit is brought against a person who did not consent to the establishment of the association by exercising the right to demand sale, thereby seeking the implementation of the procedure for registration of transfer of ownership, etc., based on the fact that the person who did not consent to the establishment of the association in the litigation procedure is unlawful due to lack of concreteness, the legitimacy of exercising the right to demand sale can be asserted. Furthermore, in order to resolve the legitimacy of exercising the right to demand sale based on the fact that the association establishment resolution has no effect.

[2] Where the owner's consent to the establishment of a housing reconstruction and improvement project association was made pursuant to Article 34 of the Operational Regulations for the Establishment of the Housing Reconstruction and Improvement Project Association (Public Notice No. 165 of the Ministry of Construction and Transportation) and the attached Form 3-1 / [Attachment 3-1] written consent to the establishment of the housing reconstruction and improvement project association (hereinafter "standard written consent"), the case holding that it cannot be deemed unlawful since the contents stated in the above standard written consent are not specified in detail as to the allocation standards for project costs to be borne

[3] In light of the relevant provisions such as Article 2 subparag. 7 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785 of Dec. 21, 2007) and Article 5 subparag. 1 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 21171 of Dec. 17, 2008), whether a house constitutes a single housing complex under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents shall be determined by whether a house is constructed or a site is created after obtaining approval as a project plan at the

[1] Articles 16 (2), 18, and 39 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785 of Dec. 21, 2007), Article 26 (1) (see current Article 26 (1) and (2) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 21171 of Dec. 17, 2008), Article 48 of the Act on the Ownership and Management of Aggregate Buildings / [2] Articles 15 (2), 16 (2), and 18 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785 of Dec. 21, 2007), Article 26 (2) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 2171 of Dec. 17, 2008)

[1] Supreme Court Decision 2008Da60568 Decided September 24, 2009 (Gong2009Ha, 1735) Supreme Court Decision 2009Da66686 Decided February 25, 2010 / [3] Supreme Court Decision 2003Da5545 Decided June 24, 2005 (Gong2005Ha, 1238)

Pakistan-dong Housing Reconstruction and Improvement Project Association (Law Firm Chang-Gong, Attorneys Park Jong-bong et al., Counsel for the plaintiff-appellant)

Defendant 1 and six others (Law Firm Sejong, Attorneys Kim Jae-hwan et al., Counsel for the defendant-appellant)

Daegu High Court Decision 2008Na5975 Decided December 24, 2008

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. As to the assertion that a resolution of establishing an association is null and void (ground of appeal Nos. 1 and 4)

Article 39 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785 of Dec. 21, 2007; hereinafter “former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”) provides that a project implementer may make a claim for sale of land and buildings of a person (including a person who owns only a building or land; hereinafter the same shall apply) who did not consent to the establishment of an association under Article 16(2) and (3) while implementing a housing reconstruction project by applying the provisions of Article 48 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter “Act on the Ownership and Management of Aggregate Buildings”), which is a project implementer in a housing reconstruction project, by applying the provisions of Article 48 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter “Act on the Ownership and Management of Aggregate Buildings”). Since the project owner’s consent on the establishment of an association (hereinafter “the resolution on the establishment of an association”) is merely a procedural requirement necessary to issue an administrative disposition on the establishment of an association.

Therefore, in cases where a reconstruction improvement project association files a lawsuit seeking the implementation of the procedure for ownership transfer registration by exercising the right to demand sale against a person who did not consent to the establishment of the association, the person who did not consent to the establishment of the association in the litigation procedure can contest the legitimacy of the exercise of the right to demand sale based on the fact that the matters regarding the burden of expenses determined by the resolution of the association are unlawful due to lack of specification, it is insufficient to say that the resolution of the association establishment is not effective due to such circumstance. Furthermore, the authority to establish the association is legally revoked or its defect is so serious and clear that

However, according to Articles 16(2) and 26(1) of the former Enforcement Decree of the Act on the Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 21171, Dec. 17, 2008; hereinafter “former Enforcement Decree”), when the committee for the promotion of housing reconstruction projects intends to establish an association, it shall include the outline of design of the building to be constructed from the owner of the land, etc. (1), (2) a rough amount of expenses to be incurred in removal and new construction of the building, (3) matters concerning the apportionment of expenses under the above paragraph (2) (including the standards for apportionment of expenses where the outline of the above paragraph is changed), (4) ownership after the completion of the project, and (5) a written consent to the establishment of the association, based on Article 14(1)6 of the Daegu Metropolitan City Ordinance on the Improvement of Urban Areas and Dwelling Conditions for Residents, the consent to the establishment of the association shall be notified by the Minister of Land, Transport and Maritime Affairs under Article 15(2) of the former Act.

In addition, when examining the issues of this case among the contents of the standard form of consent, especially the "matters concerning the cost sharing" is indicated to the effect that the association's articles of association are followed. In addition, the settlement money to be borne by partners in the old Act, the former Enforcement Decree, and the articles of association of the association of this case (in accordance with the standard articles of association prepared and disseminated by the Minister of Construction and Transportation pursuant to Article 20 (2) of the former Act) is specified not only in the calculation method of settlement money (the settlement money = prices of sites and buildings purchased in lots - prices of previous land and buildings) but also in detail the price of the land and buildings purchased in lots, the appraisal method and time of appraisal of the price of the previous land and buildings, the timing and method of appraisal of the settlement money burden (Article 48 (1) 3 through 5, and 57 of the former Act, Article 57 (2) 2, 3, (4) of the former Enforcement Decree of the Urban Improvement Act, Article 45 subparagraph 1, Article 51, and Article 53 of the articles of association resolution is unlawful.

In addition, according to the above paragraph (4) and the standard written consent of the association after completion of the project, the standard management and disposal standards of the association's articles of incorporation shall apply, and the determination of the sale volume of a newly-built building by the association members who own the housing shall be based on the application for parcelling-out and the order of a large amount of the value of the previous rights, and the determination of Dong and Dong shall be in accordance with the methods of the association's articles of incorporation and the management and disposal standards, and the owners of incidental facilities, including commercial buildings, shall be provided with welfare facilities newly installed in consideration of the value of the previous land and buildings according to the association's articles of incorporation and the management and disposal standards, but the determination of Dong and Dong shall be governed by the management and disposal plan's articles of incorporation.

Therefore, the defendants' assertion on this part of the defendants' assertion on the premise that it is too abstract and illegal as the cost-bearing standard prescribed in the resolution of the establishment of the association of this case is without merit. Thus, the decision of the court below which rejected the defendants' assertion on the same purport is just and there is no violation of the legal principles as to the resolution of the establishment of the association, the right to claim for sale, and the violation of

2. As to the assertion of mistake of facts concerning the appraisal value (ground of appeal No. 2)

According to the principle of free evaluation of evidence under the principle of free evaluation of evidence, it is a matter belonging to the exclusive jurisdiction of the fact-finding court, unless it is against logical and empirical rules. Thus, the court below's approval of the market price as stated in its reasoning by adopting the appraiser's appraisal result is justified, and there is no error in the misapprehension of the legal principles as to the calculation of liquidation amount, etc., in full view of the fact that the appraiser's selection as a comparative standard of land in the rearrangement zone such as the matters considered at the time of appraisal, appraisal method, collection of transaction cases, etc., and in general, the actual transaction price of reconstruction apartment formed through the real estate brokerage establishment can be deemed to have been reflected and formed.

3. As to the assertion of misapprehension of legal principles as to housing complex (ground of appeal No. 3)

In full view of the relevant provisions such as Article 2 subparag. 7 of the former Act and Article 5 subparag. 1 of the former Enforcement Decree of the Act on the Maintenance of Urban Areas and Dwelling Conditions for Residents, whether a housing complex is a single housing complex under the former Act shall be determined by whether a house is constructed or a site site is created after obtaining approval as a business plan at the time of conducting a construction project of the relevant house or a housing site preparation project for the site where the relevant house is constructed (see Supreme Court Decision 2003Da5455, Jun. 2

For the same purport, the court below's rejection of the defendants' assertion that the commercial building of this case is a welfare facility attached to a luminous manship adjacent thereto and its entire area constitutes a single housing complex is justified, and there is no error in the misapprehension of legal principles as to housing complexes and welfare facilities, as otherwise alleged in the grounds of appeal.

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)