(Cheongju) The revocation of the approval of the housing construction project plan 2017Nu2913

The person who received the lawsuit from the deceased A

1.B

2.C

3.D

4.E

5.F

Cheongju Market

1. Construction of a stock company;

2. G Area housing association;

Cheongju District Court Decision 2016Guhap10782 Decided March 23, 2017

August 30, 2017

November 1, 2017

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

On April 5, 2016, the Defendant revoked the approval for the capture of the housing construction project in relation to the Intervenor joining the Defendant.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A. On October 19, 2004, in order to implement an urban development project in a size of about 460,000 square meters which is implemented in a size of 10,000 square meters of the Hanwon-gu, Cheongju-si (hereinafter “instant urban development project”), a committee of promotion was organized by the H Urban Development Project Association (hereinafter “H Association”), and the Chungcheongbuk-do governor publicly announced the designation of the instant urban development project zone and the establishment of the development plan on May 4, 2007.

B. Upon the establishment of the instant urban development plan, the H Association Promotion Committee was applied for collective land substitution from landowners within the instant urban development project zone in order to promote the instant urban development project by collective land substitution method.

C. A owns the land listed in the separate sheet (hereinafter referred to as the “instant land”) within the instant urban development project zone, and the H Association promotion committee as described in the above B B applies for collective land substitution.

On June 7, 2007, the H Association Promotion Committee submitted a new statement of collective land substitution to the land of this case owned by it.

D. On October 26, 2007, H Union was authorized to establish an urban development project implementer of the instant case as the implementer of the instant urban development project. After that, on November 15, 2007, H Union held a general meeting of association establishment on November 15, 2007, stating that “the instant urban development project shall be completed by building and selling apartment units on the site of the instant apartment site at a series of stages for joint housing construction projects,” and resolved H Union’s articles of association and replotting execution rules.

E. Around November 2012, HA prepared a replotting plan after obtaining authorization of an implementation plan for the instant urban development project using the replotting method from the Defendant with respect to the instant urban development project. Around March 2013, HA submitted to HA a written intent of collective land substitution sale, stating that “A also has the intent to sell the instant land as a collective land substitution,” the part corresponding to J block (i.e., KK) in the instant urban development project zone (hereinafter referred to as “instant project site”) shall be determined by means of collective land substitution, and that multi-family housing is constructed. A also submitted a written intent of collective land substitution sale to HA, stating that “A also has the intention to sell the instant land as a collective land substitution.”

F. On December 14, 2013, HA amended part of a replotting plan by reflecting the foregoing contents, and passed a resolution of a special general meeting on December 14, 2013, and obtained authorization of a replotting plan from the Defendant on April 25, 2014, and on June 19, 2015, a group of land substitution with respect to the instant land, etc. is 30,642 square meters in the instant project site, and obtained authorization of a replotting plan including the content of designating a land substitution as a land substitution.

G. Meanwhile, the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) purchased the instant project site as a housing association authorized pursuant to Article 32 of the former Housing Act (amended by Act No. 13805, Jan. 19, 2016; hereinafter the same) and constructed an apartment of 600 households on the ground thereof (hereinafter referred to as the “instant housing construction project”); and the Gu.

Pursuant to Article 10 (2) of the Housing Act, the Intervenor, a registered business entity, was to jointly implement the construction project with Jinjin Co., Ltd.

H. Based on the amount of right, the Intervenor G association acquired approximately 76.2% shares (25,942,942,898 won in the land secured from owners) of the instant project site, which is a land scheduled for substitution, ±11,00 won in the unit price of land located in the land scheduled for substitution ± approximately 23,350.9 square meters in the area of right, which is divided by 30,642 square meters in the area of the instant project site) and applied for the approval of the housing construction project plan to the Defendant by obtaining a written consent for the use of the land from H association as of March 30, 2016.

(i) On April 5, 2016, the Defendant issued a disposition to approve the housing construction project plan with the content that the intervenors are joint project implementers and the housing construction site is 30,642 square meters of the instant project site (hereinafter “instant disposition”), and publicly announced the instant disposition as L on April 8, 2016.

B. On May 16, 2016, the Intervenor G association requested the H association to withdraw the designation of replotting and change the land owned by it, such as A to cash settlement, and on May 18, 2016, the H association requested the Defendant to cancel the designation of collective land substitution for A, etc. pursuant to Article 40(8) and (9) of the H association’s articles of association and to implement cash settlement.

(k) On May 23, 2016, the Defendant sent a reply that the land designated as a substitute lot is not subject to authorization for modification of the replotting plan due to modification of minor matters under Article 29(2) of the Urban Development Act and Article 60 of the Enforcement Decree of the same Act. On May 24, 2016, the H Union sent a reply that the land designated as a substitute lot is liquidated in money to H Union, and the H Union’s association revoked the collective substitute lot pursuant to Article 40(8) and (9) of the H

On May 25, 2016, H Union issued to the Intervenor G Union a written consent of land use to the entire site of the instant company.

Other. A died on August 8, 2016 while the instant lawsuit was pending, and the Plaintiffs, the heir of A (hereinafter referred to as “the deceased”), took over the instant litigation procedure.

[Based on Recognition] In the absence of dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1 through 4, 8 through 10, 23 (including virtual numbers; hereinafter the same shall apply), Eul evidence Nos. 1, 3 through 5, 9, 16, 17, 19, 21, 28, 29, 31 and 32, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiffs' assertion

In order for participants, a joint project proprietor under Article 10(2) of the former Housing Act, to obtain approval for a housing construction project plan, at least 95/100 of the project site of this case, which is a housing construction site, shall be secured pursuant to Article 16(4)1 and 2 of the former Housing Act, or the right to use the project site of this case shall be secured. However, the intervenors failed to secure the deceased’s rights (hereinafter referred to as “the deceased’s interests”) that hold approximately 13% shares in the project site of this case on the basis of the amount of rights. Meanwhile, the H association did not have any authority to obtain approval for land use by replacing the project site of this case, which is a planned land substitution, to the G association. Accordingly, even though the instant disposition failed to meet the requirements prescribed in Article 16(4)1 and 2 of the former Housing Act, it shall be revoked in an unlawful manner, as it was conducted by the Defendant.

2) The arguments of the defendant and the intervenors (hereinafter referred to as the "defendants, etc.")

A) In applying for collective land substitution, the deceased himself/herself submits to HF a written intent to sell collective land substitution.

On the other hand, the deceased agreed to sell the right to share to the project implementer in the future, and thus, the deceased grants the right to consent to use his share to the H association explicitly. Accordingly, the H association can legally grant the intervenor's consent to use the land with respect to the shares of the deceased.Therefore, the instant disposition is lawful under the condition that the intervenor has secured the right to use the housing construction site under Article 16 (4) proviso 2 of the former Housing Act.

B) Even if the Intervenor did not explicitly grant the H Association the right to consent to use his share at the time of the instant disposition, even if there was a defect that the Intervenor failed to secure the right to use the instant project site at the time of the instant disposition, H Union notified the Intervenor, including the Deceased, to cancel the collective land substitution and to settle money settlement in accordance with Article 40(8) and (9) of the H Association’s articles of association, pursuant to Article 40(8) and (f) of the H Association’s articles of association, and the shares of the Deceased, etc. were excluded from the land substitution. The money settlement for the Deceased, etc. of H Association constitutes “the alteration of minor matters” under Article 29(2) of the Urban Development Act and Article 60(1)4 of the Enforcement Decree of the same Act, and there is no need to revise the replotting plan. Since the H association thereafter has recovered from the land use of the instant land to the Intervenor.

C) Even if the instant disposition was unlawful and its defect was not cured, in light of the importance of the instant housing construction project, the cost of the project, the degree of progress of the project, and the damages to which many interested parties will suffer, etc., the revocation of the instant disposition is considerably inappropriate for public welfare, and thus, there is a need for a ruling of assessment.

(b) Relevant statutes;

It is as shown in the attached Form.

C. Determination

1) Issues of the instant case

According to the main sentence of Article 16(4) of the former Housing Act, a housing construction business entity who intends to obtain approval for a housing construction project plan shall secure ownership of the housing construction site. According to the proviso of Article 16(4) of the same Act, even if the ownership of the housing construction site is not secured, the said approval may also be

At the time of the instant disposition, the Deceased owned the instant land in the instant project site, and this constitutes approximately 13% of the shares in the instant project site due to the designation of land scheduled for substitution. However, the Intervenor, who is the subject of the instant construction project, was not granted the right to use the instant share in the form of “written consent to land use,” etc. directly by the Plaintiff. However, the Intervenor was only granted the consent to use the entire project site, including the deceased’s shares, from H Association.

In this regard, the plaintiffs did not delegate the right of the deceased to the H association to consent to use the deceased's share. Thus, the consent to use by the H association, which is not the owner, cannot be deemed as securing the right to use the deceased's share among the project site of this case, which is the housing construction site. Accordingly, the plaintiffs asserted that the disposition of this case is unlawful because the requirements of disposition are incomplete.

On the other hand, in light of various circumstances, the Defendant et al. can be deemed to have explicitly and implicitly delegated the right of the deceased to consent to the use of the land in this case or the shares of the deceased.

In conclusion, the Intervenor asserts that the instant disposition is lawful by satisfying the requirements, as the Intervenor obtained the consent of H association to use the instant project site with the approval of H association, and all of the private source of the instant project site was secured.

Therefore, the legitimacy of the disposition of this case depends on whether the intervenor secured the right to use the project site of this case, and this depends on whether the consent to use the project site of this case was effective as the above right to use the project site of this case by the H association, which is not the owner, and the issue of this case is whether the deceased granted the right to consent to use the shares of the deceased to the H association, and this is examined.

2) Whether the deceased granted the H association the right to consent to use

Comprehensively taking account of the facts found above and the following circumstances revealed by the evidence as seen earlier, it can be acknowledged that the deceased explicitly or implicitly gave his/her right to consent to the use of the shares of the deceased.

A) Characteristics of the instant urban development project

The instant urban development project has been promoted since the beginning by selling land through a collective land substitution so far under the premise that multi-family housing (multi-family housing) is constructed on a collective land substitution site. In the event of collective land substitution, it is practically impossible for co-owned share holders who have received collective land substitution to implement a construction project for multi-family housing by themselves. In addition, given that co-owned share holders are not able to use and benefit from collective land substitution based on their co-owned shares, the land owner who received collective land substitution is deemed a way to realize the right that is the reason for selling

Unlike an urban development project where individual land substitution is conducted, it shall be decided to make collective land substitution from the beginning;

In the case of the instant urban development project, the new housing construction project that constructs collective housing in the site of collective land substitution is very closely related to the instant urban development project itself. In order to complete the instant urban development project, the housing construction project should be implemented in the instant site, which is the planned site of collective land substitution. For this purpose, a single multi-family housing construction project operator may implement the housing construction project to purchase the instant project site. Accordingly, all members who have received collective land substitution in H Association must sell their own land to a single buyer, and the Deceased was also aware of such circumstance (the first oral argument report in the present instance).

In addition, if a partner who received a collective land substitution fails to sell his/her own land or collective land substitution by asserting that his/her right to purchase more than the amount of the appraisal and assessment, a joint housing construction project cannot be implemented, and the entire urban development project of this case cannot be implemented as a whole, the partners who received a collective land substitution bear the obligation to sell his/her own land or public land to the joint housing construction business operator as a kind of cooperation obligation against the project operator (Article 40(8) and subparagraph (2) of the H association’s articles of association). In addition, in this case, the members cannot claim an expensive purchase compared to the amount of the right to appraisal and assessment, and if a partner claims an expensive purchase in violation of this provision, the H association may substitute the members with money liquidation or another place (Article 40(8) and (9) of the H association’s articles of association). Members, including the deceased, resolved to approve the articles of association with the consent of a majority of pressures at the time of the establishment general meeting (Article 32(1) or (32).

Therefore, in the course of the instant urban development project, the association members, who received collective land substitution, were presumed to sell their own land to housing construction project entities as the amount of the right of appraisal and assessment, and the association members, who do not want such a project, are reasonable to receive individual land substitution rather than collective land substitution. Therefore, the association members should not apply for collective land substitution to H association at the beginning.

C. In addition, in a case where there has been a change in the perception to oppose the project of collective land substitution method after the vehicle, he shall withdraw the intention within the prescribed period and apply for change to receive individual land substitution or cash settlement. In a case where a member fails to take such measures and obstructs the progress of the project by collective land substitution method, H Union may change such member to a person subject to the land substitution in accordance with the articles of association.

B) Consent to the instant urban development project by the Deceased

On June 7, 2007, the deceased already filed an application for collective land substitution with the H Association Promotion Committee, and thereafter, the H association sent a notice to its members from March 2013 to June 3, 2013 in order to determine the applicants for collective land substitution, and then notified the members of the association that “the members who intend to apply for collective land substitution send a notice to the association of sale intent” (this evidence No. 11 and No. 11 B and No. 6). On June 20, 2013, the deceased sent a letter of intent to sell the instant land to H association and expressed their intent to request the determination of the land substitution plan by designating the deceased as the persons subject to collective land substitution.

In light of the characteristics of the instant urban development project, it can be deemed that the deceased consented to the progress of the instant urban development project by acquiring co-ownership shares in the land scheduled to be constructed, selling it to the housing construction proprietor, and having multi-family housing constructed.

Even after the submission of the above sale intent, the deceased did not withdraw a collective land substitution application or withdraw the submission of a sale intent, and the plaintiffs, the inheritor of the deceased, expressed their intention to exclude H association from the category of collective land substitution. Thus, the deceased or the plaintiffs' consent on the direction of the implementation of the urban development project of H association in this case can be deemed to continue to exist until now.

C) Granting comprehensive rights to use the deceased’s share

Members, including the deceased, expressed their intent to agree to the promotion of the instant housing construction project in the instant site by submitting a written intent to sell the instant land to the HH association, and such collective land substitution is not changed to an individual land substitution, insofar as the members are not changed to the individual land substitution, the members do not actually have any way of realizing their rights, such as use and profit-making, except for the sale of their own land according to the amount of their own shares calculated by the appraisal and assessment. Therefore, there is no de facto interest in the use and profit-making of the instant

Therefore, the meaning of the consent to the implementation of the instant urban development project on the premise that the instant housing construction project is implemented in the instant project site, and the association members clearly indicated that H association is entitled to collective land substitution, such as submitting a letter of intent to sell one’s own land, etc., may be deemed to have permitted H association to construct collective housing by granting a comprehensive right to use for the instant urban development project with respect to the land or shares to H association. Furthermore, as long as it was clearly planned that the housing developer will construct collective housing at the planned site for collective land substitution, it is reasonable to view that H association’s comprehensive right to use the land granted by the association members applying for collective land substitution to H association is also included in the right to consent to use the instant project site.

In doing so, it is difficult to accept such logic because it is contradictory to the application for collective replotting by consenting to the implementation of the urban development project in this case by constructing collective housing through collective replotting, as it does not add the right to use to H association even if a partner applies for collective replotting, thereby denying the construction of collective housing in the project site in this case, and thereby preventing the progress of the entire urban development project in this case.

Therefore, as seen earlier, insofar as the deceased received a notice of collective land substitution application from the H association and expressed clearly his/her intent to apply for collective land substitution by submitting a letter of intent to sell in H group, it is reasonable to deem that the deceased granted a comprehensive right to use the deceased’s share, including the right to consent to use the deceased’s share.

D) The process of implementing an urban development project through a consortium or a group replotting is as follows: ① a land owner’s application for collective land substitution and land substitution procedures for the urban development cooperative; ② a housing development cooperative’s selection for a housing construction project implementer, ④ a housing construction project implementer’s project approval; ④ a housing construction project implementer’s sale of rights to land, etc., ⑤ a housing construction project implementer’s sale of land, etc., and ⑤ a cooperative’s sale of land and construction. However, in a case where a cooperative member files a collective land substitution application and submits it to the cooperative to sell intent, the association members are obligated to respect and comply with the results of the selection unless there are any special problems in the association’s selection. If a cooperative member expresses his intention of collective land substitution and sale, the consent to the housing construction project implementer is naturally scheduled. However, if the project implementer selected as a housing construction project implementer obtains the separate consent from individual members, this would result in compelling the association members to repeat a necessary and complicated procedure, and if a cooperative member is unable to give consent due to a failure to consent due to a change in the process, it may be considered as a single.

3) Sub-determination

Therefore, on the basis of delegation of the right to consent to use by the deceased, H Association to the Intervenor G Association.

The consent to use the entire project site of this case, including the ownership portion, constitutes a valid use right based on legitimate rights, and the approval disposition of the housing construction project plan of this case is lawful pursuant to Article 16(4)2 of the former Housing Act. Therefore, the Plaintiff’s assertion on the premise that it is contrary thereto is legitimate to Article 16(4)2 of the former Housing Act. Therefore, without examining the Defendant, etc., who was excluded from a person subject to collective land substitution and was subject to monetary settlement pursuant to the articles of association of H association related to monetary settlement, is not acceptable.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance which rejected the plaintiff's claim is unfair with different conclusions, so the defendant and the intervenor's appeal is accepted and the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed. It is so decided as per Disposition.

Judges Shin Jae-chul

Judges Scare Park-hee

Judge Senior Professor

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.