[1] In a case where an approval of the formation of an association is taken, under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents before the designation and announcement of a rearrangement zone under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents before the designation and announcement of a rearrangement zone, whether the defects of the disposition are serious or obvious (negative)

[2] In a case where the head of a Si/Gun who has received an application for approval to establish an association can verify that he/she consented to at least 1/2 of the owners of land, etc. according to the documents attached to the application for approval, regardless of the form of documents or title (affirmative)

[1] Article 19 of the Administrative Litigation Act, Article 13 (2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444 of February 6, 2009) / [2] Article 13 (2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444 of February 6, 2009

[1] Supreme Court Decision 2010Du9358 Decided September 30, 2010 / [2] Supreme Court Decision 2008Du13132 Decided June 25, 2009

Plaintiff 1 and seven others (Law Firm Inulul, Attorneys Lee Jae-woo et al., Counsel for the plaintiff-appellant)

The head of Dongjak-gu Seoul Metropolitan Government (Seo Law Firm, Attorney Park Sang-chul, Counsel for the plaintiff-appellant)

Promotion Committee for the Establishment of Housing Redevelopment and Improvement Project Cooperatives in Black 9 Treasury Area

Seoul High Court Decision 2010Nu36741 decided June 22, 2011

All appeals are dismissed. The costs of appeal, including the part resulting from supplementary participation, are assessed against the plaintiffs.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

According to the reasoning of the judgment of the court of first instance cited by the court below, the court below acknowledged the facts as stated in its reasoning after compiling the adopted evidence, and determined that the approval of the amendment of this case was unlawful since it did not approve the modification only for the part exceeding the owners of the land, etc. and the consenters within the rearrangement zone area approved in the approval of the first promotion committee of this case, and that the extension of the rearrangement promotion zone of this case, the size of which was considerably expanded, was based on the number of the entire owners of the land, etc. and the number of consenters within the scope of the rearrangement promotion zone of this case, and thus, the approval of the first promotion committee of this case becomes retroactively null and void. Since there is no benefit in the protection of rights to dispute the validity of the approval of the first promotion committee of this case, the court below determined that the part seeking confirmation of

In light of the contents and purport of the relevant statutes, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the relation between the approval for establishment and the approval for modification.

2. Regarding ground of appeal No. 2

Unlike Article 13(2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444, Feb. 6, 2009; hereinafter “the Act”), Article 13(2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 944, Feb. 6, 2009; hereinafter “the Act”) provides that “When a cooperative is to be established pursuant to paragraph (1), five or more members including the chairperson, and a majority of the owners of lands, etc. shall organize a promotion committee to establish an association with consent on the operating rules under Article 4, and shall obtain approval from the head of the relevant 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 a rearrangement zone, the promotion committee has not provided any provision restricting the period of consent on the formation of the owner of lands, etc. after the public announcement of designation of an rearrangement zone.

According to the reasoning of the first instance judgment cited by the court below, the court below acknowledged the facts as stated in its reasoning after compiling the adopted evidence, and determined that the approval of the modification in this case was not null and void, in full view of the circumstances, including the fact that although the defendant issued the approval of the establishment of the first instance promotion committee before the designation and public notice of the rearrangement zone, Article 13(2) of the Urban Improvement Act was unlawful, it was unclear whether the designation and public notice of the rearrangement zone should be prior to the establishment of the promotion committee because Article 13(2) of the Urban Improvement Act does not explicitly stipulate the timing of the promotion committee.

In light of the above legal principles, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the validity of the approval for establishment of the promotion committee before the designation of the rearrangement zone.

3. Regarding ground of appeal No. 3

According to Article 13(2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions before the amendment, when it is intended to establish an association composed of owners of land, etc. to implement a rearrangement project, it shall obtain approval from the head of Si/Gun with the consent of at least 1/2 of the owners of land, etc., and according to each subparagraph of Article 6 of the Enforcement Rule of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions before the amendment, a person who intends to obtain approval for establishment of the committee shall submit an application for approval to the head of Si/Gun along with a written consent of the owners of land, etc. (attached Form 2). However, there is no special restriction on the form of written consent of the owners of land, etc., so if the head of Si/Gun who has received an application for approval for establishment of the committee can confirm that there is consent of at least 1/2 of the owners of land, etc. to the composition of the relevant committee according to the attached documents, regardless of the form or title of the document

According to the reasoning of the first instance judgment cited by the lower court, the lower court acknowledged the facts as indicated in its reasoning after comprehensively taking account of the evidence adopted by the lower court. 1) The lower court determined that: (a) the supplementary participant’s promotion committee consented from 59 persons among the first consentings to promoting the rearrangement project in the instant rearrangement promotion zone more expanded than the instant rearrangement promotion zone; and (b) it seems that there is no need to re-written consent for the extension of the scope of the implementation of the rearrangement project without any difference in the details of the promotion committee’s establishment; and (c) the supplementary participant’s 59 persons from the extension of the scope of the implementation of the rearrangement project could express their opinions by means of not preparing a written consent for the extension of the scope of the implementation of the rearrangement project if they oppose the activities of the promotion committee in the expanded project zone; and (d) it is reasonable to view that the supplementary participant’s 59 persons from the extension of the scope of consent to the establishment of the promotion committee by submitting a written consent for the extension of the scope of the implementation of the rearrangement project.

In light of the above legal principles, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the consent requirement as otherwise alleged in the ground of appeal.

4. Regarding ground of appeal No. 4

In full view of the adopted evidence, the lower court determined that the Plaintiff’s allegation does not constitute a serious and clear defect as long as the Plaintiff did not present a list of promoters at the time when the Plaintiff submitted a written consent from the owner of the land, etc. to establish a promotion committee or presented a list of promoters completely different from the list of promoters submitted at the time of the application for the approval for modification, and that it cannot be deemed that there was any defect as alleged by the Plaintiffs, even if there were such defects as alleged by the Plaintiffs, the lower court determined that the instant written consent cannot be deemed null and void or that there was any defect in the approval for modification. In full view of the circumstances, such as the fact that the list of promoters attached to each written consent submitted by the Intervenor to obtain the approval for modification in this case was replaced en bloc by the final list of promoters finalized at that time, and that such defect was not easily known from the Defendant’s view of examining the approval for modification in this case.

In light of the relevant legal principles and records, the above fact-finding and judgment of the court below are just, and there is no error in the misapprehension of legal principles as to the method or form of consent, which is the requirement for establishment of the promotion committee, beyond the limit of the principle of free evaluation of evidence in violation of logical and empirical rules

5. Conclusion

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

Justices Lee Sang-hoon (Presiding Justice)