[1] Requirements to deny the exercise of rights for reasons of violation of the principle of good faith

[2] In a case where Gap et al. claimed transfer of each real estate within the project implementation district of housing redevelopment improvement project implemented by the Eul association as an occupant of each real estate within the project implementation district of the housing redevelopment project, and Eul et al. requested transfer of each real estate to Gap et al. after the public notice of the management and disposal plan was given, and Eul et al. did not proceed with the procedure for concluding a contract for parcelling-out as stipulated by the articles of association, which is different from the public opinion of the head of the association, so it goes against the principle of good faith to seek transfer of real estate in advance without giving Gap et al. an opportunity to become a cash liquidation agent, the court held that the Eul association's articles of association provides that "if a member of the association is a person who did not apply for parcelling-out or has withdrawn the contract for parcelling-out, it shall be liquidated in cash within 150 days from the date it falls under the case where the association did not have an opportunity to withdraw the contract for parcelling-out within the period of the above management and disposal plan, but it shall not be interpreted that the association's can arbitrarily cancel the contract for parcelling-out.

[1] Article 2 of the Civil Act / [2] Article 2 of the Civil Act, Article 47 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 14567, Feb. 8, 2017)

[1] Supreme Court Decision 91Da3802 delivered on December 10, 1991 (Gong1992, 467)

Seoul High Court Decision 200Na41488 delivered on August 1, 200

Defendant 1 and two others (Law Firm New Village et al., Counsel for the defendant-appellant)

Cheongju District Court Decision 2018Na6427 decided July 20, 2018

The judgment of the court below is reversed, and the case is remanded to Cheongju District Court.

The grounds of appeal are examined.

1. The reasoning of the lower judgment reveals the following facts.

A. The Plaintiff received the application for parcelling-out from April 2016 to May 20, 2016 when publicly announcing the application for parcelling-out as a housing redevelopment project partnership with approximately KRW 79,035,200 square meters as a project implementation district in Cheongju-si, and the association members for the housing redevelopment improvement project in the 2nd Dong-dong District in April 15, 2016 (hereinafter “instant improvement project”).

B. The Defendants submitted an application for parcelling-out to the Plaintiff within the period of application for parcelling-out as the owner or possessor of each real estate of this case.

C. On January 16, 2017, the Plaintiff received the approval of the management and disposal plan from the Cheongju Mayor, and the Cheongju Mayor announced it by the Cheongju-si Notice No. 2017-30 on January 20, 2017.

2. A. On the grounds stated in its reasoning, the lower court accepted the Defendants’ defense of violation of the good faith principle and dismissed all of the Plaintiff’s claims on the ground that: (a) the Plaintiff did not proceed with the procedures for concluding a contract for sale and purchase as stipulated by the articles of incorporation for a considerable period from the time of the approval of the management and disposal plan, unlike the Plaintiff’s consent at the residents’ conference; and (b) the Defendants did not give the Defendants an opportunity to become

B. However, the lower court’s determination is difficult to accept in light of the following circumstances revealed by the reasoning of the lower judgment and the record.

(1) In order to deny the exercise of rights against the other party in legal relations on the ground that it violates the principle of good faith, it is reasonable that the other party provided good faith to the other party or had good faith from an objective point of view, and the exercise of rights against such other party’s good faith has to reach an extent that it is not acceptable in light of the concept of justice (see Supreme Court Decision 91Da3802 delivered on December 10, 191, etc.).

(2) Article 44(4) of the Plaintiff’s articles of association provides that “a cooperative shall liquidate a building or other rights in cash within 150 days from the date it falls under a cooperative member’s “person who has failed to file an application for parcelling-out” or “person who has withdrawn an application for parcelling-out,” and Article 44(5) of the Plaintiff’s articles of association provides that “a cooperative member shall conclude a parcelling-out contract within a period determined by the cooperative after the approval for its management and disposal plan and shall apply mutatis mutandis to cases where

In light of the language and purport of the provisions of the articles of incorporation, "person who has withdrawn an application for parcelling-out" means a person eligible for cash liquidation in the process of establishing a management and disposal plan, as well as a person who has failed to apply for parcelling-out before the expiration of the period of application for parcelling-out, although he/she applied for parcelling-out within the period of application for parcelling-out, and cannot be deemed as an application for parcelling-out at will after the expiration of the period of application for parcelling-out (see Supreme Court Decision 2011Du17936, Dec. 22, 2011).

(3) It is recognized that the non-party, the president of the Plaintiff’s partnership, made a statement at the residents’ conference during the period of application for parcelling-out to the effect that “the request for parcelling-out is hot when possible,” and “the withdrawal of the request for parcelling-out can be made before the conclusion of

However, while speaking as above, the Nonparty also explained that “if an application for parcelling-out is filed, it shall be classified as a cash settlement without entering into a contract for parcelling-out.” In addition, there is no content that the person responsible for the guidance for parcelling-out distributed to the members may withdraw the application for parcelling-out, or if he withdraws the application for parcelling-out at any time, he shall not immediately make a cash settlement. Rather, the person responsible for the guidance for parcelling-out only stipulates that “The content of the application for parcelling-out shall not, in principle, be changed only after the expiration of the period of the application for parcelling-out.”

(4) Interpretation of the Nonparty’s statement to the effect that “The Nonparty shall be given an opportunity to withdraw at any time after the expiration of the period for filing the application for sale is against the provisions of Article 47 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 14567, Feb. 8, 2017; hereinafter “Urban Improvement Act”) and Article 44(4) of the Plaintiff’s Articles of incorporation, and the Nonparty seems to have no authority to grant the Defendants such opportunity.

Therefore, in light of the overall purport and context of the above remarks, and the purpose and background of the above remarks made at the residents’ society, the Nonparty merely made the above remarks while encouraging the members to apply for parcelling-out and explaining the contents of the articles of association, and it cannot be deemed that the Plaintiff expressed a public opinion to additionally grant the opportunity to withdraw the application for parcelling-out by modifying the contents of the articles of association.

(5) There is no provision that “a cooperative shall set the period for concluding a sales contract within a certain period after the approval of the administrative disposition plan.” Rather, Article 44(5) of the Plaintiff’s Articles of incorporation provides that a partner shall conclude a sales contract within the “within the period determined by the cooperative” and only stipulates that the time for concluding a sales contract may be determined at a discretion by the cooperative.

Therefore, the Plaintiff has the authority to set the period for concluding a contract during the period of project execution as appropriate, considering all the circumstances, such as the various interests of its members, project costs anticipated to be required for the rearrangement project, the degree of relocation of its members, cash clearing persons, tenants, etc., and the possibility of modifying the management and disposition plan

(6) Since the amount of compensation for the land to be acquired by a project implementer is determined at an appropriate amount increased or decreased depending on the location, shape, environment, and current use of the land on the basis of the officially announced land price with less fluctuations, it seems that there is no high possibility that the association may intentionally delay the procedures for concluding a sales contract to reduce the amount of compensation to be paid to the persons subject to cash settlement. Furthermore, there is no circumstance to deem that the Plaintiff may delay the procedures for concluding a sales contract with the same intent.

(7) Article 44(5) of the Plaintiff’s articles of incorporation shall be deemed ex post facto and exceptional provisions that intend to give an additional opportunity to leave the business by cash settlement, by failing to enter into an ex post facto sales contract even after the expiration of the period for application for parcelling-out.

Therefore, it is reasonable to interpret the above articles of association to mean that a union requires its members to conclude a sales contract in violation of its duty to conclude the sales contract, and it does not necessarily mean that members are subject to settlement in cash solely on the grounds that the union did not demand the members to conclude the sales contract itself due to various circumstances in the course of business (see Supreme Court Decision 2010Da7141, May 9, 2012, etc.).

C. Examining these circumstances in light of the relevant legal principles as seen earlier, it is difficult to view that the Plaintiff gave the Defendants an additional opportunity to withdraw the application for parcelling-out through the Nonparty’s statement, and it is difficult to view that the Plaintiff’s seeking the delivery of real estate to the Defendants without undergoing the procedures for concluding the parcelling-out contract or granting the Defendants an opportunity to withdraw the additional application for parcelling-out is difficult in light of the concept of justice.

D. Nevertheless, solely based on its stated reasoning, the lower court accepted the Defendants’ principle of protecting the trust and the principle of good faith and dismissed the Plaintiff’s claim. In so determining, the lower court erred by misapprehending the legal doctrine on the principle of protecting trust and the principle of good faith, thereby adversely affecting the conclusion of the judgment.

3. 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.

Justices Noh Jeong-hee (Presiding Justice)