The meaning of the “public notice date of approval of project implementation” as stipulated in Article 48(1)4 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (=the date of public notice of approval of the first project implementation plan) and where there is a change of the project implementation plan to substantially change the main parts of the first project implementation plan, whether the management and disposal plan formulated based on the previous asset price assessed as of the date of public notice of approval of the first project implementation plan violates

In light of the language and purport, structure, etc. of Article 48(1)4, (2)1, (6) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 11293, Feb. 1, 201; hereinafter “former Act”), an improvement project, such as redevelopment and reconstruction, etc. under the former Act, shall be divided according to the investment ratio between the owners of land in an improvement zone and the members after investing the previous construction cost, etc. in an apartment house, and the development gains arising from the sale of remaining apartment houses, etc. to the general public from the date of approval of a project implementation plan as the contents of the previous management and disposal plan shall be deemed to have been altered as of the date of approval of a new project implementation plan to the head of a Gun as of the date of approval of a new project implementation plan (in cases of a building removed pursuant to Article 48-2(2) prior to approval of a project implementation plan, the new project implementation plan shall be deemed to have been altered as of the date of approval of the previous project implementation plan to determine the size of the project implementation plan.

Article 48(1)4, (2)1, (5)1, and (6) (current deletion) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 11293, Feb. 1, 2012);

See Attached List of Plaintiffs (Law Firm Park & Park, et al., Counsel for the plaintiff-appellant)

2-2 District Housing Reconstruction and Improvement Project Association (Law Firm Square, Attorneys Park Ho-ho et al., Counsel for the plaintiff-appellant)

Daegu High Court Decision 2014Nu237 decided November 21, 2014

The judgment below is reversed, and the case is remanded to the Daegu High Court.

The grounds of appeal are examined.

1. Article 48(1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 11293, Feb. 1, 2012; enforced August 2, 2012; hereinafter “former Act”) stipulates that a project implementer (excluding a residential environment improvement project) shall establish a management and disposal plan including the following matters based on the current status of application for parcelling-out under Article 46 when the period for parcelling-out expires under Article 46, and obtain authorization from the head of a Si/Gun, as one of the matters to be included in the management and disposal plan under subparagraph 4, “the price of a building removed under Article 48-2(2) as of the date of public announcement of the approval for the implementation of the project” (in cases of a building removed under Article 48-2(2) prior to the authorization for the implementation of the project, the price shall be calculated based on the date of obtaining permission from the head of a Si/Gun, and Article 48(2) provides that the previous land or housing redevelopment project implementer shall reasonably be calculated in accordance with the following standards:

In addition to the language, purport, structure, etc. of the above relevant provisions, rearrangement project, such as redevelopment and reconstruction under the former Act, is a project which the owner of land, etc. in an improvement zone has divided development gains accruing from the construction of multi-family housing, etc. after investing the previous assets in the construction cost, etc. to the members according to the investment ratio among the members of the association. The evaluation of the previous asset price as the contents of the management and disposal plan seems to be for determining the relative investment ratio among the members of the association. ② Article 48(1)4 of the former Act provides that the previous asset price as the date of public announcement of project implementation authorization shall be appraised as of the date of public announcement of the project implementation plan as prescribed in Article 48-2(2) of the former Act, even if the project implementation plan is modified, it is reasonable to view that the new project implementation plan has to be evaluated as the date of permission of the previous project implementation plan as the first public announcement of the project implementation plan to ensure that the new project implementation plan has no effect on the new project implementation plan to prevent disputes arising from the previous project implementation date.

2. Review of the reasoning of the lower judgment and the reasoning of the first instance judgment cited by the lower court reveals the following facts.

① The Defendant is a housing reconstruction maintenance and improvement project association which obtained authorization from the head of Daegu-gu, Daegu-gu, and 459 parcel of land (hereinafter “the instant project”) to implement a housing reconstruction project on December 24, 2004 and 459 parcel of land (hereinafter “the instant project”), and obtained authorization from the head of the Gu on June 13, 2005 (hereinafter “the first project implementation plan”), established a project implementation plan on June 13, 2005 and obtained approval from the members for application for parcelling-out, and established a management and disposal plan based on the application for parcelling-out from the members, and obtained approval from the head of the Gu on December 27, 2006.

② The first project implementation plan was officially announced on July 1, 2008 and July 21, 201 (hereinafter “final project implementation plan”) and the scale of apartment houses, total floor area, number of households, etc. were changed compared to the first project implementation plan (hereinafter “final project implementation plan”).

③ Since the approval of the final project implementation plan, the Defendant obtained application for parcelling-out from the members, and resolved to formulate and revise the management and disposal plan at the extraordinary general meeting on January 18, 2012, and on March 21, 2012, the Defendant obtained approval from the head of the Gu for modification of the management and disposal plan (hereinafter “instant management and disposal plan”).

④ Meanwhile, when formulating the instant management and disposal plan, the Defendant used the appraised value of the previous asset price as it is, as it is, as of June 13, 2005, which was the date of the first public announcement of project implementation authorization.

3. Examining these facts in light of the legal principles as seen earlier, even if the main part of the initial project implementation plan was substantially modified, such circumstance alone cannot be deemed as unlawful of the instant management and disposal plan established based on the previous asset price assessed based on the date of the public notice of approval of the initial project implementation plan.

Nevertheless, on different premises, the lower court determined that the instant management and disposal plan was unlawful on the ground that the former asset price was not assessed based on the announcement date of approval of the initial project implementation plan without assessing the new asset price based on the announcement date of approval of the initial project implementation plan. In so determining, the lower court erred by misapprehending the legal doctrine on the evaluation date of the previous asset price

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: Omitted

Justices Kim Yong-deok (Presiding Justice)