Plaintiff (Law Firm Hyeong, Attorneys Cho Jae-soo et al., Counsel for the plaintiff-appellant)

Freeboard 1-3 Housing Redevelopment and Improvement Project Association (Law Firm Hann Law, Attorneys Jeon-soo et al., Counsel for the plaintiff-appellant)

April 29, 2014

Seoul Administrative Court Decision 2012Guhap35856 decided April 4, 2013

1. It is confirmed that there is a right of sale, such as the details of the application for parcelling-out in attached Form, to the designated parties, including the plaintiff (appointed parties) upon an application for change in exchange at the trial;

2. The total costs of a lawsuit shall be borne individually by each party.

The judgment of the first instance court is revoked, and the judgment that the part of the management and disposition plan adopted at the ordinary meeting on July 21, 2012 against the plaintiff (appointed party) and the appointed party is revoked (the plaintiff changed the purport of the claim for the right to sell lots among selective claims, to seek confirmation of the right to sell lots at the trial) is revoked.

1. Facts of recognition;

(a) Execution of the housing improvement redevelopment project by means of self-development;

The Minister of Construction and Transportation, in accordance with the former Act on the Promotion of Housing Improvement, which was enforced on December 1, 1973, publicly announced the designation of 20,702 square meters in Mapo-gu Seoul ( Address 1 omitted) as a redevelopment area for housing improvement.

On April 1, 197, the Mayor of Seoul Special Metropolitan City authorized the implementation plan for the redevelopment project to the above redevelopment area under the method of implementing the redevelopment project (the method of constructing housing by the owner of the land, etc. with the means of supplying the land as substitute land). On July 24, 1980, the Minister of Land, Infrastructure and Transport approved the management and disposal plan and the construction plan (Seoul City Notice No. 270) on July 24, 1980. Accordingly, it is the method of sharing the land by several persons according to the ratio of the area of each lot number of the land of the land reserved for replotting, located within the above redevelopment area (number 1 omitted), (number 2 omitted), (number 3 omitted), (number 4 omitted), (number 5 omitted), (number 6 omitted), and (number 6 omitted (hereinafter referred to as the “each land of this case”).

The number of the previous land owned by the owner in the sequences contained in the main sentence shall be 1 (number 1 omitted), Nonparty 1 (number 1 omitted), 36 square meters (number 1 omitted), 23.14 square meters on September 31, 197; 29 square meters on September 17, 197; 21.49 square meters on September 17, 197; 3, Nonparty 2, 3 (Selection), 3, 46 7.14 square meters on April 30, 1964; 45 square meters on May 15, 197; 198.3 square meters on May 15, 1964; 1.5 square meters on May 15, 2005 (14 square meters on April 15, 2005); 1.45 square meters on May 24, 2015 (3,000 square meters on April 15, 1964).

B. Conversion of business methods by joint redevelopment methods, and establishment of the defendant

After that, the above redevelopment project has not been implemented smoothly for a considerable period of time, the Mayor of Mapo-gu Seoul Metropolitan Government (hereinafter referred to as the "head of Mapo-gu") transferred the above redevelopment project's affairs to the head of Mapo-gu Seoul Metropolitan Government (hereinafter referred to as the "head of Mapo-gu"). On July 24, 2008, the head of Mapo-gu approved and publicly notified that the method of implementing the housing redevelopment project's implementation was changed to the joint redevelopment method (the method of constructing and supplying the housing and auxiliary welfare facilities after the owner of land, etc.

The head of Mapo-gu approved the establishment promotion committee of the defendant association on September 30, 2008, and the head of Mapo-gu Seoul Metropolitan Government designated the improvement zone (the area was increased to 23,482.5 square meters; hereinafter referred to as the "project zone of this case") of the project of this case under the Seoul Metropolitan Government public notice 2010-141 on April 22, 2010, and the head of Mapo-gu authorized the establishment of the defendant association on July 12, 2010.

C. Application for parcelling-out and filing of this case

On the other hand, each of the instant lands was designated as a planned land substitution but the ownership of each of the instant lands and its ground houses was transferred before the transfer due to the progress of the project, and the Plaintiff and the designated parties (hereinafter “Plaintiffs, etc.”) were the owners of each of the instant lands and their ground houses located within the instant project zone as shown below, who directly or indirectly use and profit from each of the instant lands and their ground houses (the appointed parties Nonparty 6 and 3 reported Nonparty 6 to the Defendant as the representative partner. Nonparty 8 was one of the co-owners of the instant land and its ground houses, and Nonparty 6 and Nonparty 9 (Appointed 2(Withdrawal) was the representative partner, and Nonparty 5 transferred the designated parties’ succeeding Nonparty 5’s land and its ground houses during the course of the instant lawsuit, and withdrawn from the instant lawsuit).

Non-party 9 (Non-party 5) (Non-party 1, non-party 4, non-party 2, non-party 2, non-party 2, non-party 4, non-party 2, non-party 5, non-party 2, non-party 4, non-party 2, non-party 5, non-party 2, non-party 5, non-party 2, non-party 1, non-party 2, non-party 3, non-party 4, non-party 2, non-party 4, non-party 2, non-party 4, non-party 2, non-party 4 (non-party 4, non-party 4, non-party 58, non-party 1, non-party 2, non-party 2, non-party 1, non-party 4, non-party 5, non-party 1, non-party 2, non-party 2, non-party 2, non-party 5, non-party 15, non-party 15.

After obtaining authorization for the implementation of the project in this case on February 28, 2012, the Defendant received the application for parcelling-out from the members for parcelling-out by setting the period from April 11, 2012 to May 25, 2012, and the Plaintiff et al. separately applied for parcelling-out of multi-family housing as stated in the application for parcelling-out as shown in the attached Form (name 2 omitted) (the application for parcelling-out by Nonparty 6, who was born on December 7, 1978, stated that “Seoul Mapo-gu ( Address 2 omitted),” and the address of Nonparty 3 in the application for parcelling-out by Nonparty 3 is written as “Seoul Mapo-gu ( Address 3 omitted).”

The defendant recommended that "it is impossible to individually apply for parcelling-out to the extent of the number of the previous land or each household in the situation where a land scheduled for replotting has been designated, and one unit of parcelling-out shall be applied after arranging several owners inside the same based on the one unit of land scheduled for substitution," but the plaintiff et al. filed the lawsuit of this case against the defendant on June 14, 2012 while maintaining the position that he/she is eligible for a single unit of parcelling-out.

(d) Details of the management and disposal plan;

The defendant obtained approval from the head of Mapo-gu on January 24, 2013 after the resolution of the management and disposition plan was made on July 21, 2012 (hereinafter "the management and disposition plan of this case"), and the part related to the application for parcelling-out by the plaintiff, etc. among its contents shall be based on the land reserved for replotting or the household within the project area of this case, and in the case of the designated non-party 6 and the non-party 3, two applicants were filed for parcelling-out, but at the time of the designation of the land reserved for replotting, the designated non-party 6 was appointed as the representative partner at the time of the establishment of the defendant association, and the non-party 6 was granted the right of parcelling-out of new bonds to each of them, and the remaining part of the plaintiff, etc. is not known to whom the right of parcelling-out was granted to each of them as the land reserved for cash liquidation. In the lawsuit of this case raised by the plaintiff, etc., the plaintiff, etc., shall be additionally designated as the

[Reasons for Recognition] Facts without dispute, Gap evidence 1 to 4 (including each number, hereinafter the same shall apply), Eul evidence 1 to 11, the purport of the whole pleadings

2. Claim of this case and determination thereof

A. The plaintiff's assertion

The plaintiff et al. filed an application for parcelling-out within the period of application for parcelling-out set by the defendant as the defendant's member, and the plaintiff et al. owned each parcel of land and housing as of May 25, 2012, which is the basic date of the management and disposition plan. Thus, the defendant's failure to determine the plaintiff et al. as the individual unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit

(b) Relevant statutes;

It is as shown in the attached Form.

C. Determination

(i) general qualifications of members and persons eligible for sale of housing redevelopment and rearrangement projects;

In a housing redevelopment project, "owner of land, etc." means the owner of land or structure located in the rearrangement zone (Article 2 subparagraph 9 (a) of the Urban Improvement Act), and in a housing redevelopment project, the owner of land, etc. shall naturally become a member of the rearrangement project regardless of the consent to the rearrangement project (the main sentence of Article 19 (1) of the Urban Improvement Act), regardless of whether the owner of land or structure belongs to several co-ownerships (Article 19 (1) 1 of the same Act), when several owners of land, etc. belong to one household (Article 2 subparagraph 2 of the same paragraph and Article 19 (a) of the same Act, when several owners of land, etc. who are composed of one household do not belong to the same household separately after authorization for establishment of the partnership is granted, excluding divorce and the branch of children aged 20 or older), when several owners of land or structure acquire the ownership or superficies of the land or structure from one owner of land, etc. after authorization for establishment of the partnership and acquire the right of association members (Article 30 (2) of the Enforcement Decree).

In addition, the owners of land, etc. who intend to acquire a housing site or structure shall file an application for parcelling-out with the project implementer according to the methods and procedures prescribed by Presidential Decree within the period for application for parcelling-out (Article 46(2) of the Urban Improvement Act), and in the redevelopment and improvement project of housing, when the period for application for parcelling-out expires, the project implementer shall establish a management and disposal plan based on the current status of the application for parcelling-out and obtain authorization from the head of the Si/Gun (Article 48(1) of the same Act). In determining the contents of the management and disposal plan, in comprehensive consideration of the size, use status, environment, and other matters of the previous land or structure, the land or structure shall be evenly allocated to the applicants for parcelling-out and reasonably used (Article 48(2)1 of the same Act), one housing unit shall be supplied, and where at least two persons who do not belong to the same household own one housing or one land, one housing unit shall be supplied, and where the scale of housing supplied by the owners of land, etc. is excluded from the maintenance and disposal plan under Article 2(3).

2) In the case of conversion of the project implementation method, qualifications for buyers

Article 27(1) of the Seoul Metropolitan Government Ordinance on the Maintenance of Multi-family Housing to be constructed for housing redevelopment projects under the delegation of the above Act and the Enforcement Decree of the same Act provides that a person eligible for the sale of multi-family housing shall be any of the following land owners as of the date of the management and disposal plan, and subparagraph 1 of the same Article provides that a person who owns a house (including buildings prescribed by the articles of association, etc. among specific unauthorized buildings used for residence) among the previous buildings as of the date of the management and disposal plan, subparagraph 2 of the same Article provides that the total area of the previous land owned by the applicant for the sale is at least 90 square meters, subparagraph 3 is at least the estimated value of one household of multi-family housing on a minimum scale for sale for sale, subparagraph 4 of the right owned by the applicant for the sale, and subparagraph 4 of the same Article provides that in cases of a conversion of the project implementation method, a person designated the replotting according to the project implementation method before conversion (in such cases, subparagraphs 1 through 3 may not apply)

On the other hand, Article 27 (2) of the Seoul Special Metropolitan City Improvement Ordinance provides that several applicants for parcelling-out shall be deemed to be eligible for parcelling-out in any of the following cases, notwithstanding paragraph (1) of the same Article, where detached houses or multi-family houses are converted to multi-household houses after the base date for the calculation of rights (Article 19 (1) 2 of the Urban Improvement Act), where several applicants for parcelling-out belong to one household (Article 29 (2) 2 of the same Act, where several applicants for parcelling-out belong to one household (Article 27 (1) 2 of the same Act, where several persons own one house or one lot of land (Article 27 (2) of the same Ordinance) (Article 3, subparagraph 3, where the share area of land owned before the base date for the calculation of rights is 90 square meters or more), where one lot of land and one house owned by one person after the base date for the calculation of rights are divided into several lots of land after the completion of a building (Article 5).

3) Whether the plaintiff et al. is qualified as a sole seller

Based on the above facts, the relevant provisions of the Seoul Metropolitan Government Improvement Ordinance are examined, and the plaintiffs et al. are all owners of the previous houses as stipulated in Article 27 (1) 1 of the Seoul Metropolitan Government Improvement Ordinance as of May 25, 2012, which is the basic date of the management and disposition plan, and each individual individual is eligible for separate sale. On the other hand, the defendant may not apply the provision of subparagraph 1 to the plaintiff et al. as the person designated a substitute lot according to the business method prior to conversion under subparagraph 4 of the same paragraph. In addition, Article 27 (4) of the same Ordinance provides that all of the plaintiff et al. designated a substitute lot without the size of the substitute lot area and the joint substitute lot shall be eligible for sale. Accordingly, it may be interpreted that the plaintiff et al. can be denied the qualification of the individual purchaser in

However, according to the above general provisions, the plaintiff et al. is the sole owner of each house, and the non-party 6 and the non-party 3 who is the selection of the association does not belong to one household (it does not constitute a case where the non-party 20 years of age or older is divided due to the reasons other than the price of children). The Seoul Special Metropolitan City Improvement Ordinance was enacted in accordance with the delegation of the provisions of the Enforcement Decree of the Act and the Urban Improvement Act. The Seoul Special Metropolitan City Improvement Ordinance seems to have been enacted in order to prevent the damage to the good faith due to the enforcement of this Ordinance (The result of the inquiry about the Seoul Special Metropolitan City Improvement Ordinance is that it is difficult to view that the non-party 2 of the Seoul Special Metropolitan City Municipal Ordinance No. 3 as the basic date for the division of lots as stipulated in Article 27 (2) 4 of the Seoul Special Metropolitan City Ordinance, and it is difficult to say that the remaining part of the land substitution is not the land substitution standard of the non-party 1 as the new Ordinance.

Article 47(2) of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents to submit an application for the sale of land to the Defendant along with the certificate of the land substitution. In interpreting the provisions of Article 26 subparag. 1 and 4 of the Seoul Metropolitan Government Ordinance on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents to the effect that in the case of the conversion of the method of sale, the change of the method of sale should be based on the land substitution plan. In the case of the conversion of the method of sale, the plaintiff et al. shared the land substitution plan or one household designated two lots. Thus, the plaintiff et al. cannot assert the right of sale as the previous house owner under Article 27(1) subparag. 1 of the Seoul Metropolitan Government Ordinance on the Maintenance and Improvement, and it is justifiable to view that the plaintiff et al. did not grant the qualification to the plaintiff et al. as the right of sale to the defendant under Article 47(2)4 of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions.

In other words, the defendant argues to the effect that the case where the project implementation district among the members of a cooperative who has been designated as a different zone of land substitution is unreasonable due to the difference in the method of the project implementation in the case of a cooperative member who has been designated as a land substitution for another zone, all the land substitution rights arising from the previous disposition of land substitution related to the land substitution and the disposition of land substitution for replotting are acquired or lost. However, in accordance with the above interpretation, it shall not be deemed that the defendant obtained double sale qualification by making the unreasonable result as argued by the defendant overlaps with the qualification. Further, Article 27 (1) 4 and (4) of the Seoul Metropolitan Government Ordinance on the Maintenance of Seoul shall be applied reasonably to prevent the person who has been designated

Meanwhile, it is likely that the Plaintiff et al. may be granted the Plaintiff et al. who separately acquired the status of the designated person as the designated person as the land to be reserved for replotting more rights than the designated person as the land to be reserved for replotting. However, if the ownership is transferred according to the land redevelopment method or joint redevelopment method, regardless of the transfer announcement, the legal effect of the land or structure sold to the owners of land, etc. pursuant to Article 55 of the Act on the Improvement of Urban Areas and Dwelling Conditions for Land, etc. is not different. Before the project method is converted, the Plaintiff et al. held the right to share of the land to be reserved for replotting in the form of sharing, and can own the land jointly or separately owned and own the land at the time of completion of the project in the future, and until that time is allowed, each house owned by the Plaintiff et al. can be used and profit-making. However, it is difficult to view that the land or structure is owned by the Plaintiff et al. to be converted into the land to the extent that it is more unfavorable to the Plaintiff et al.

4) Method of remedy against the plaintiff et al.

As seen earlier, when disputes between the plaintiff, etc. and the defendant are not confirmed as to the existence of the right to apply for parcelling-out between the plaintiff, etc., the management and disposal plan of this case is to settle cash against the plaintiff, etc. except for the plaintiff, etc. 6, 3 and 1 of the designated parties in reserved land when the plaintiff, etc. becomes final and conclusive to win the lawsuit of this case, and when the plaintiff, etc. has lost it, the management and disposal plan of this case is to sell the corresponding part among reserved land to the plaintiff, etc., and it is to be reflected in the contents of reserved land of the management and disposal plan. Thus, the plaintiff, etc. can file a lawsuit seeking confirmation of the right to parcel out in reserved land as in this case (in the case of non-party 6, 3 of the designated parties, the defendant shall be deemed to have reflected one of them as the object of parcelling-out and reflected in the management and disposal plan of this case as to the

Therefore, as seen earlier, it is obvious that the plaintiff et al. has the right to sell the land, such as the details of the application for parcelling-out, and as long as the defendant contests this, the plaintiff et al. has the interest to seek confirmation. Therefore, the plaintiff et al

3. Conclusion

Therefore, the claim of the court for the confirmation of the right of sale among the selective claim of this case against the plaintiff et al. against the defendant of this case is justified (the part of the lawsuit seeking the grant of the right of sale, which is the right of sale, was withdrawn from the exchange change of the lawsuit made in the trial and the judgment of the court of first instance becomes null and void). It is decided as per Disposition.

[Attachment]

Judges Lee Jong-hun (Presiding Judge) (Presiding Judge)