Plaintiff 1 and three others (Law Firm White, Attorney Kang Chang-il, Counsel for the plaintiff-appellant)

Seoul District Housing Redevelopment and Improvement Project Association (Attorney Park Jong-soo, Counsel for the plaintiff-appellant)

March 27, 2009

1. Of the instant lawsuits, the part of the resolution of the residents' general meeting on January 26, 2002 and each claim for nullification of the resolution of the association general meeting on May 28, 2007 shall be dismissed.

2. The plaintiffs' remaining claims are dismissed.

3. The costs of lawsuit are assessed against the plaintiffs.

On January 25, 2002, the resolution of which the incorporation promotion committee of the Housing Redevelopment and Improvement Project Association was selected as the executor of the Housing Redevelopment and Improvement Project under the Housing Redevelopment and Improvement Project under the Housing Redevelopment and Improvement Project under the Resident's Assembly, and on March 10, 2006, the resolution of which accepted Hyundai Construction Co., Ltd. as the executor of the Housing Redevelopment and Improvement Project under the Housing Redevelopment and Improvement Project under the Maamam 9 at the inaugural General Meeting is invalid. On May 28, 2007, the resolution of which the Defendant accepted Hyundai Construction Co., Ltd. as the executor of the Housing Redevelopment and Development Project under the Maam 9

1. Basic facts

The following facts shall not be disputed between the parties, or may be acknowledged by adding up the whole purport of the pleadings to each entry in Gap evidence 1 through 5:

A. On May 12, 2006, the Defendant is an association established for the purpose of implementing a housing redevelopment improvement project by using the number of parcels 54,261.70m2, other than the 663m2, Eunpyeong-dong, Seoul, as an improvement zone, and the Defendant was authorized by the head of Eunpyeong-gu, and the Plaintiffs are the Defendant’s members.

B. On January 26, 2002, the Defendant, which was established in around 2002, decided to select a contractor through competitive bidding (hereinafter “Defendant's promotion committee”), and then, on January 26, 2002, passed a resolution to select Hyundai Construction Co., Ltd. as a contractor among Hyundai Construction Co., Ltd., Treatment Construction Co., Ltd, Large Forest Industry Co., Ltd, L branch Construction Co., Ltd, Hyundai Industrial Development Co., Ltd., as a contractor (hereinafter “Resolution 1”).

Since then, the defendant promotion committee was approved by the head of Eunpyeong-gu in accordance with the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter "Do Government Act") on September 14, 2004.

C. On March 10, 2006, the Defendant: (a) held an inaugural general meeting on 442 of the 620 members (including those who consent in writing) and made a resolution to authorize the first resolution that selected Hyundai Construction Co., Ltd. as contractor on the ground that the rearrangement zone was expanded with the consent of 428 members (hereinafter “the second resolution”); and (b) held an ordinary general meeting on May 28, 2007, which was approved by the head of Eunpyeong-gu, after obtaining the authorization of establishment from the head of the Gu, and adopted a resolution to authorize the first resolution and the second resolution (hereinafter “third resolution”).

D. Of the Defendant’s articles of incorporation, the provisions pertaining to the selection of work executor are as follows.

Article 12 (Selection of Work Executor and Contract)

(1) The selection of a contractor shall be made by means of general competitive bidding or selective competitive bidding, but the public announcement of a tender in a daily newspaper shall be made at least once, and the site site consultation shall be held, and a proposal for participation shall be submitted to be selected at a general meeting (to be selected, where the contractor has been selected by competitive bidding at the resident general meeting

Article 21 (Matters to be Resolved by General Meeting)

6. Selection and alteration of the removal businessman, work executor and designer;

Article 22 (Resolution Method of General Meeting)

(1) A general meeting shall be held with attendance of a majority of members, and pass resolutions with the consent of a majority of members present, except as otherwise expressly provided for in the

(2) Members of the cooperative may exercise their voting rights in writing or through a proxy falling under each subparagraph of Article 10 (2). In case of holding in writing the voting rights, they shall be deemed to be attendance under the provisions of paragraphs (1)

2. The plaintiff's assertion

The plaintiff asserts that ① since the promotion committee does not have the right to select the work executor, the first resolution and second resolution selected by the defendant promotion committee as the work executor are null and void, ② ratification of invalid act is not allowed, and the third resolution of the defendant who ratified the selection of the work executor by the defendant promotion committee is null and void, and even if the defendant subsequently selected the work executor through the third resolution, according to Article 11(2) of the Do administration law, the selection of the work executor is stipulated to be done by competitive bidding, so the defendant's third resolution which ratified the selection of the work executor by the defendant promotion committee without going through these procedures is null and void.

3. Determination prior to the merits

A. Determination as to the defense prior to the merits

The defendant asserts that the plaintiffs' purpose of the lawsuit in this case is to invalidate the contract for construction works with the true contractor, and even if it is confirmed that the contract for construction works is invalid, the validity of the contract cannot be denied. Thus, the lawsuit in this case is not a valid and appropriate means for dispute resolution, and thus there is no benefit of confirmation.

However, as the plaintiffs are the members of the defendant's association, they shall be directly affected by the rights and duties as members of the association in accordance with the failure and invalidity of each of the above resolutions, so long as the defendant asserts that each of the above resolutions is valid, the plaintiffs shall be deemed to have a benefit to seek confirmation of invalidity of each of the above resolutions. Therefore, the defendant'

B. Whether the part of the claim for nullification of the first resolution is legitimate

Article 14 of the Do Government Act does not stipulate the duties concerning the selection of a contractor as the duties of the committee of promoters, and Article 24 of the Do Government Act stipulates that the selection of a contractor shall undergo the resolution of a general meeting of partners, and comprehensively considering the relevant statutes, the selection of a contractor is not the authority of the committee of promoters but the inherent authority of a general meeting of partners. Thus, even if a contractor was selected through a general meeting of residents at the stage of the committee of promoters, a general meeting of partners held after the establishment of the association is not bound by the selection

Therefore, as seen later, insofar as the Defendant was established after the first resolution of the Defendant Promotion Committee and the new decision was passed to select a work executor, the Plaintiffs, as the Plaintiffs, may seek nullification of the binding resolution of the Defendant, and seeking nullification of the first resolution of the Defendant Promotion Committee, cannot be deemed as an effective and appropriate means in resolving the dispute, and thus, this part of the lawsuit is unlawful as there is no benefit of confirmation.

C. Whether the claim for nullification of the third resolution is legitimate

The plaintiffs asserted that the subject of the second resolution is the defendant promotion committee, but the second resolution is made at the defendant's inaugural general meeting, and therefore the subject of the second resolution is the defendant, so that the plaintiff's claim for the invalidation of the third resolution is also applied to the second resolution. As seen later, as long as the second resolution is valid as the defendant's new contractor selection resolution, even if the plaintiffs are confirmed as invalid as to the third resolution of the same contents as the second resolution, it cannot affect the defendant's selection of the work executor, so this does not affect the defendant's selection of the work executor. Therefore, this part of the lawsuit is unlawful as there is

4. Judgment on the merits

A. As seen earlier, even if a contractor was selected through a general meeting of residents at the stage of the promotion committee, the general meeting of the union members held after the establishment of the partnership is not necessarily bound by the selection of the contractor at the pre-conceptive promotion committee.

However, if the association has passed a resolution to ratification the selection of the contractor at the stage of the promotion committee after the association was established, and it satisfies the requirements for the selection of the contractor, it can be deemed valid as a resolution to select a new contractor by the association, and the second resolution is the defendant, as seen earlier, as to whether the second resolution is valid as a resolution to select a new contractor by the defendant.

B. While the Defendant’s promotion committee and the Defendant going through each general meeting, the provisions regarding the selection of the contractor under the Do Government Act have been enacted and amended as follows:

1. Law No. 6852 on December 30, 2002

Article 11 (Selection of Work Executor)

(1) The association or the owners of lands, etc. shall, after receiving an authorization for project implementation, select a constructor under Article 9 of the Framework Act on Construction Projects or a registered businessman who is deemed a constructor under Article 6-3 (1) of the Housing Construction Promotion Act as the constructor.

(2) The association or the owners of lands, etc. under paragraph (1) shall select the work executor by means of competitive bidding determined by the articles of association, etc.

2. Partial Revisions of the Third Instance (Law No. 6916, May 29, 2003)

Article 11 (Selection of Work Executor)

(1) The association or the owners of lands, etc. shall, after obtaining an authorization for project implementation, select as the constructor under Article 9 of the Framework Act on the Construction Industry or the registered businessman who is deemed as the constructor under Article 12 (1) of the Housing Act.

(2) The association or the owners of lands, etc. under paragraph (1) shall select the work executor by means of competitive bidding determined by the articles of association, etc.

3. Partial Revision (Law No. 7392 of March 18, 2005)

Article 11 (Selection of Work Executor)

(1) Each housing reconstruction project association shall select a constructor or registered project operator as the contractor after obtaining authorization to implement the housing reconstruction project.

(2) The association for housing reconstruction projects shall select the constructor under paragraph (1) by means of competitive bidding as determined by the Minister of Construction and Transportation.

4. Partial Amendment of 13th of May 24, 2006

Article 11 (Selection of Work Executor)

(1) A housing redevelopment project cooperative and an urban environment rearrangement project cooperative shall select a constructor or registered project operator after obtaining authorization to establish the relevant association, and after obtaining authorization to implement the housing reconstruction project.

(2) The association referred to in paragraph (1) shall select the constructor under paragraph (1) by means of competitive bidding as determined by the Minister of Construction and Transportation.

ADD.

(1) This Act shall enter into force on the date three months have elapsed after its promulgation.

(2) The amended provisions of Article 11 (2) concerning housing redevelopment projects and urban environment rearrangement projects shall apply to housing redevelopment projects and urban environment rearrangement projects from the portion approved by the first promotion committee after this Act enters into force.

C. According to Article 11 of the Do Government Act, which was applied at the time of the second resolution (Act No. 7392 of March 18, 2005), Article 11 of the Do Government Act, which applied at the time of the second resolution, does not delete any provision on competitive bidding against redevelopment cooperatives, and Article 11 of the Do Government Act, which was applied at the time of the third resolution (Act No. 7960 of May 24, 2006), provides that a contractor shall be selected by competitive bidding against redevelopment cooperatives, but the above provision provides that "in the case of housing redevelopment project and urban environment rearrangement project under Article 11 (2) of the amended provisions of Article 11 (2), the above provision shall apply from the first approval of the committee of promoters after the enforcement of this Act, in the case of redevelopment cooperatives that conducted business with the approval of the committee of promoters before the enforcement of the above amended provisions, it is reasonable to deem that the above provision is not applicable in the method of competitive bidding, in light of the reasons for the above amendment and its grace provisions.

D. Meanwhile, Article 12(1) of the Defendant’s articles of incorporation limits the selection of a contractor by means of competitive bidding. However, the proviso provides that with respect to a contractor selected by competitive bidding at the stage of the promotion committee prior to the enforcement of the Do Party Act, the selection of a contractor may be made only by the resolution of a general meeting of partners without any new competitive bidding. The above proviso provision is valid as it does not violate the Do Party Act which was applied at the time of the second resolution

E. Ultimately, the defendant, among 620 members of the 620 association at the inaugural general meeting, shall be deemed to have lawfully selected Hyundai Construction Co., Ltd., a competitive bid at the stage of the promotion committee pursuant to the second resolution with the consent of 428 members at the 420 meeting (the restriction provision of the law that requires the selection of a contractor after the approval of the establishment of the redevelopment association, was implemented from August 2006, and there was no special restriction as to the time to select the contractor before that time, so the defendant may select the contractor by the second resolution even before the approval of the establishment) and there is no other evidence to acknowledge that there was a reason for invalidation in the second resolution. The plaintiffs' assertion that

5. Conclusion

Therefore, the part of the claim for nullification of the first and third resolutions among the lawsuits in this case is unlawful and dismissed, and the remaining claims of the plaintiff are dismissed as they are without merit. It is so decided as per Disposition.

Judges Kim Jong-soo (Presiding Judge)