Plaintiff (Attorney Kim Yong-sik, Counsel for plaintiff-appellant)

The head of Jung-gu Seoul Metropolitan Government

Myeon 3 Housing Reconstruction and Improvement Project Association (Law Firm Mailing, Attorney Kim le-apon, Counsel for defendant-appellant)

Seoul Administrative Court Decision 2009Guhap4515 decided August 12, 2010

June 21, 2011

1. The plaintiff's appeal is dismissed.

2. The costs of appeal, including the part arising from the supplementary participation, shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked.

[Main Claim] : The defendant's disposition of approving the establishment of a partnership against the defendant's intervenor on September 4, 2008 is invalid.

[Preliminary Claim] The defendant's disposition of approving the establishment of a partnership against the defendant's intervenor on September 4, 2008 shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning of the judgment of this court is as follows, since the lawsuit of this case is unlawful, in addition to the supplement of the judgment of the court of first instance as follows, the reasoning of the judgment of the court of first instance is identical to that of the judgment of the court of first instance, and thus, it is acceptable in accordance with Article 8(2)

2. Supplementary judgment

A. A disposition to approve the establishment of an association under Article 16 of the Act on the Maintenance of Urban and Residential Environments (hereinafter “Urban and Residential Environments Act”) seems to be based on the assumption that the initial disposition to approve the establishment of an association is valid, such as partially modifying or revoking the already authorized matters, or adding new matters. In this case, since the disposition to approve the establishment is not a new disposition to approve the establishment, it cannot be evaluated as a separate independent disposition. On the other hand, the initial disposition to approve the establishment is not a loss of independent existence value by absorbing the disposition to approve the establishment, but not a loss of independent existence value by absorbing the disposition to approve the establishment, and the effect of the initial disposition to approve the establishment also takes effect by the initial disposition of authorization. However, the modified contents by the disposition of

However, if the validity of a written consent or a lack of statutory consent rate is raised with respect to the disposition of authorization to establish an association, and the association additionally demands a new written consent to all the owners of land, etc. to submit a written consent, thereby seeking authorization for modification of authorization to establish an association, or if there was an authorization for modification based on a new written consent, including the existing consent holder, due to the fundamental modification of the original written consent, as to the essential modification of the details of the consent, the original written consent, even though the initial disposition of authorization to establish an association did not meet the requirements for consent rate, and thus, the original disposition of authorization to establish an association cannot disregard the existing authorization disposition that exists in form, and thus, the original disposition of authorization to establish an association constitutes a new authorization disposition that was conducted in accordance with a new authorization requirement, while the original disposition of authorization to establish an association is deemed replaced by such modified disposition

Therefore, even if the initial consent of the establishment does not meet the quorum requirements, the defect in the initial consent of the establishment is sought to confirm the past legal relationship and it is no longer deemed that there is no legal interest in the lawsuit. However, if the appearance of the establishment of a legal relationship is formed in the status of the administrative body, such as obtaining the approval of a project implementation plan and a disposition of management and disposal plan or exercising the right to demand sale against the owners within the rearrangement zone and the lessee, etc., on the premise that the previous authorization disposition is effective from the previous authorization disposition to the time before the establishment of the association is made, it is reasonable to view that the other party has a interest in the lawsuit to dispute the validity of the previous authorization disposition, even after the new authorization disposition of authorization of establishment is made.

B. Examining the facts in light of the legal principles as seen earlier, it is reasonable to view that the instant modification disposition, as properly stated in the reasoning of the judgment of the court of first instance, grants to the intervenor association new status as an administrative agent that can implement a reconstruction project under the Urban Improvement Act instead of the instant authorization disposition.

Meanwhile, in full view of the purport of each statement in Eul evidence Nos. 14 through 17 (including each number), the intervenor union filed the lawsuit in this case and held a resident presentation several times in which the plaintiff filed the lawsuit in this case, and sought written supplementary consent from the owners of the land, including the previous consenters, and the intervenor union filed a lawsuit against the owners of the land, including the plaintiff who did not consent to the establishment of the association on May 10, 2010 after the revised approval disposition in this case. In this lawsuit, the intervenor union asserted that it exercised the right to demand sale based on the peremptory notice as to the consent to the establishment of the reconstruction association on Jan. 2, 2010, which was before the revised approval disposition in this case, and on the other hand, claimed that it would not exercise the right to demand sale within two months after the written consent to the establishment of the reconstruction association.

According to the above facts, the intervenor union only filed a lawsuit for the claim for sale after the approval of modification of this case, and also gave the other party the possibility of consenting to the establishment of an association in preparation for the illegality of the highest notice prior to the approval of modification in the lawsuit. Thus, it is difficult to deem that the intervenor union formed the legal relationship under the public law to the extent that it may affect the rights and obligations of the owners of the land, etc. as an administrative body in the position of the administrative body. Unlike the items stated in Articles 20 through 22, it is insufficient to recognize the facts alone. Thus, the plaintiff's assertion that the intervenor union had concluded a contract before the approval of modification of this case does not have a legal interest to seek confirmation of the invalidity of the approval of this case (other than the plaintiff's assertion that the intervenor union had concluded a public notice and contract for the selection of the subcontractor before the approval of modification of this case did not affect the validity of the contract concluded with the subcontractor, and it does not directly change the rights and obligations of the owners of the land, etc.

3. Conclusion

Therefore, the lawsuit of this case is unlawful, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed.

Judges Sung Pung-tae (Presiding Judge)