Plaintiff 1 and one other (Attorneys Kim Young-hoon et al., Counsel for the plaintiff-appellant)

Intervenor joining the Plaintiff

Freeboard 4 Housing Redevelopment and Improvement Project Association (Attorney Dog-ho et al., Counsel for the plaintiff-appellant)

December 15, 2015

Seoul Administrative Court Decision 2015Guhap52845 decided August 21, 2015

1. All appeals by the plaintiffs and the defendant are dismissed.

2. Of the appeal costs, the part arising between the Plaintiffs and the Defendant shall be borne by each party, and the part arising from the intervention shall be borne by the Plaintiff’s Intervenor.

1. Purport of claim

The defendant confirms that the change of the project implementation plan approved by the head of Mapo-gu Seoul Metropolitan Government on September 3, 2007, the change of the project implementation plan approved on January 25, 201, the changed project implementation plan approved on November 2, 201, the changed project implementation plan approved on June 17, 201, the changed project implementation plan approved on September 3, 201, the changed project implementation plan approved on September 3, 201, and the changed project implementation plan approved on February 28, 2013 are all invalid.

2. Purport of appeal

A. The plaintiffs

The part of the judgment of the first instance court against the plaintiffs shall be revoked. The defendant confirms that the change of the project implementation plan that was authorized by the head of Mapo-gu Seoul Metropolitan Government on June 17, 201, the change of the project implementation plan that was authorized on September 3, 2012, and the change plan that was authorized on February 28, 2013 are all invalid.

B. Defendant

The part of the judgment of the first instance against the defendant shall be revoked. All plaintiffs' claims are dismissed.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as follows, except for the addition of “the judgment of the party’s argument” below, and therefore, it is identical to the reasoning for the judgment of the court of first instance. Thus, this Court shall accept it as it is in accordance with Article 8(2) of the Administrative Litigation Act and the text of

2. Judgment as to the party's assertion of the trial

A. The parties' assertion

1) The plaintiffs' assertion

(A) The interested parties of the project in this case, such as the defendant association and association members, recognize that the project should be completed within the project implementation period, the status of owners of land, etc. is unstable unless the project implementation period is determined in the project implementation plan, the project implementation period is important as the completion period of the application for expropriation decision, the change of the project implementation period falls under a significant change in the project implementation plan, the project operator can change in advance prior to the expiration of the project implementation period, and the new project implementation plan can be established after the lapse of the period. In light of the fact that the project implementation period can be established, if the period of the third project implementation itself exceeds the period of the project implementation itself, the third project implementation plan is invalidated due to the excess of the project implementation period, and the fourth and fifth project implementation plan, which is based on the third project implementation plan already invalidated, is also null and void as its defect is serious and clear.

(B) Since the third or fifth project implementation plan is merely a modification of minor matters of the first project implementation plan, as long as the first project implementation plan is invalid, the third or fifth project implementation plan based on it is also invalid in full.

2) The defendant's assertion

(A) The plaintiffs become the objects of cash settlement does not follow the first and second project implementation plan (amended) plan, since it was based on the third project implementation plan approved after the third project implementation was approved after the third project implementation was approved. Thus, the plaintiffs have no interest in filing a lawsuit seeking the invalidation of the first and second project implementation plan (amended).

(B) Even if the first disposition to approve the establishment of a new association and the first disposition to approve the establishment of a new association are invalidated or cancelled, the project implementation plan formulated by the association is not final and conclusive, but becomes null and void in the state of flexible invalidation. After obtaining the authorization to change the establishment of a new association, a general meeting of association members is held and ratified the previous project implementation plan formulated by the association. However, the defendant association held a general meeting to formulate a third project implementation plan after obtaining the authorization to establish a new association, and made a resolution to ratification the contents of the previous project implementation plan, the first and the second project implementation plan should be deemed final and conclusive.

(C) Even if the first disposition of approving the establishment of a partnership and the first disposition of approving the establishment of a partnership are invalidated, it was not possible to at all anticipate the invalidity at the time of the first and second project implementation plan (revision). Considering the circumstances where the first disposition of approving the establishment of a partnership and the first disposition of approving the establishment of a partnership had different judgments on the validity of the first and second project implementation plan, the defect of the first disposition of approving the establishment of a partnership cannot be deemed as serious and apparent, and thus, the first and second project implementation plan cannot be deemed null and void.

B. Determination

1) Judgment on the plaintiffs' assertion

(A) Determination on the first argument

Although the first instance court's reasoning is that the project implementation period has important meaning as the period for the exercise of the right to expropriate the object of expropriation, it means that the project implementation period will lose its validity in the future if the project operator did not apply for the adjudication on expropriation within the project implementation period (see Supreme Court Decision 2000Du1706, Nov. 13, 2001). Thus, the project implementation period cannot be a basis for deeming the project implementation period as its own validity period. Even though the change in the project implementation period does not change minor matters prescribed in Article 28 (1) of the Urban Improvement Act and Article 38 of the Enforcement Decree of the Act, the association may arbitrarily determine the project implementation period in consideration of the scale of the project at the time of the establishment of the project implementation plan (no provision restricting the project implementation period). However, considering the fact that it is unreasonable to regard the project implementation period itself due to the expiration of the project implementation period due to the expiration of the project implementation period, the plaintiffs' assertion about the project implementation period in the future is not reasonable.

(B) Judgment on the second argument

Unlike the fact that the previous association established by the first and second project implementation plans (amended) and the first and second project implementation plans (amended), the third project implementation plan was established by the defendant association duly established by the second project implementation plan, supplementing the defects of the first project implementation plan and the first project implementation plan and the second project implementation plan, and thus, can be evaluated as a new project implementation plan replacing the first and second project implementation plan. Therefore, the third project implementation plan and the fourth and fifth project implementation plan based on the third project implementation plan cannot be deemed as changing the minor matters of the first project implementation plan. Thus, the plaintiffs' assertion on this part is without merit.

2) Judgment on the defendant's assertion

(A) Determination on the first argument

As the first instance court properly states, as long as the first and second project implementation plans (amended) are implemented on the premise that they are valid, the sale procedure, the management and disposal plan, and the plan for the modification of the management and disposal plan are approved, the appearance of forming legal relations with the owners of land, etc. in the project zone, including the plaintiffs, to the extent that they affect the rights and obligations of the owners of land, etc. in the project zone including the plaintiffs exists. Thus, the plaintiffs cannot be said to have no legal interest in seeking confirmation of the invalidation of the first and second project implementation plan (amended). Accordingly, this part of the defendant'

(B) Determination on the second and third arguments

If a subsequent act, such as the establishment of a project implementation plan, was conducted on the premise of the validity of a disposition approving the establishment of an association, such subsequent act becomes retroactively null and void if the original disposition approving the establishment becomes null and void or cancelled (see Supreme Court Decision 2011Du19680, Dec. 27, 2012). Moreover, the cure of defective administrative act is not permissible in principle in light of the nature of administrative act or the point of view of the rule of law, and exceptionally, if an administrative act is avoided repeatedly and allows it for the legal stability of the parties, it should be recognized in accordance with specific circumstances to the extent that it does not infringe upon the rights and interests of the people (see, e.g., Supreme Court Decisions 2010Du2579, Aug. 26, 2010; 201Du19680, Dec. 27, 2012).

In the instant case, as long as the first and second project implementation plan (revision) composed of the subsequent acts on the premise of the first disposition of approving the establishment of a partnership and the first and second project implementation plan, which were conducted on the premise of the first disposition of approving the establishment of a new association, were retroactively invalidated, even if the third project implementation plan was lawfully formulated and approved, and there was a resolution of the general meeting of the association which ratified the previous project implementation plan (revision), it cannot be said that invalid defects are cured. Thus, the Defendant’s assertion on

3. Conclusion

Therefore, the judgment of the court of first instance is just, and all appeals by the plaintiffs and the defendant are dismissed. It is so decided as per Disposition.

Judges Goung-hun (Presiding Judge) (Presiding Judge)