[1] In a case where an administrative agency issued an authorization to establish a housing reconstruction project association and then issued a disposition of modification of an insignificant matter under each subparagraph of Article 27 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, whether the interest in the lawsuit against the initial disposition of approving

[2] In a case where a housing reconstruction project association obtains a disposition for authorization to newly establish an association through the same requirements and procedures as that for obtaining authorization to establish an association, whether the interest in lawsuit seeking confirmation of invalidity of the initial disposition for authorization to establish an association is extinguished

[3] The meaning of "land or building owner" under Article 16 (3) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents

[4] In a case where the competent administrative agency erroneously interpreted the meaning of "not less than 4/5 of the owners of land or buildings" among the requirements for consent under Article 16 (3) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, and thereby granted authorization to establish an association for the promotion committee of housing reconstruction project which failed to meet the requirements, the case holding that the court below erred in the misapprehension of legal principles on the ground that the above disposition is serious but it cannot be deemed that the above disposition cannot

[1] The administrative agency's disposition of approving the establishment of a reconstruction association has a nature of a sort of rights-based disposition that grants a status as an administrative body to the committee of the housing reconstruction project if it satisfies the specific requirements under the law. Article 16 (2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444 of Feb. 6, 2009) requires the same requirement and procedure as the disposition of approving the establishment. However, even if an administrative agency rendered a disposition of approving the establishment of a housing reconstruction association in the form of a change of minor matters as stipulated under each subparagraph of Article 27 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 21171 of Dec. 17, 2008), it shall be deemed that the nature of the disposition is merely the meaning of accepting the report of minor matters, separate from the original disposition of approving the establishment. Thus, even if there is a meaningful disposition of approving the establishment of an association.

[2] In a case where a housing reconstruction project association obtains a new authorization for the establishment of an association through the same requirements and procedures as the authorization for the establishment of an association, if the housing reconstruction project association conducted follow-up acts such as exercising the right to demand sale, the general meeting resolution on the selection of the executor, the establishment of a project implementation plan, and the establishment of a management and disposal plan under the premise that the initial authorization for the establishment of an association is invalidated or revoked, such follow-up acts under the premise that the initial authorization for the establishment of an association is invalidated or revoked shall be retroactively invalidated. Therefore, barring any special circumstance, the interest in litigation seeking confirmation of

[3] Article 2 subparagraph 9 (b) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785 of Dec. 21, 2007; hereinafter “former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”; Article 2 subparagraph 9 (b) of the same Act provides that “owners of land, etc.” of a housing reconstruction project refer to owners of buildings and appurtenant land located in a rearrangement zone, owners of houses and appurtenant land as prescribed by the Presidential Decree, owners of appurtenant facilities, welfare facilities and appurtenant land located in a zone other than a rearrangement zone, and owners of appurtenant facilities and appurtenant land.” Article 16 (3) of the same Act explicitly separates “owners of land or buildings, etc.” from “owners of land or buildings,” and Article 16 (3) of the same Act explicitly prescribes that “owners of land or buildings shall be owners of land, etc. who own only land or buildings within a rearrangement zone (Article 2 subparagraph 9 (b) and Article 19 (1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Act).

[4] In a case where the competent administrative agency issued an approval to establish a housing reconstruction project promotion committee's application without meeting the requirement due to erroneous interpretation that "not less than 4/5 of landowners shall meet only one requirement among "not less than 4/5 of landowners" or "not less than 4/5 of building owners" among the consent requirements under Article 16 (3) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785 of Dec. 21, 2007; hereinafter the "former Act"), the case holding that the court below's determination that the above disposition was unlawful as it did not meet the consent requirements under Article 16 (3) of the Act before the amendment, and defects are significant, but it is not clear that the literal meaning of "not less than 4/5 of landowners or building owners" is not clear, and there is sufficient room to interpret it differently, and thus, it cannot be deemed that the above disposition to establish a housing reconstruction project's land owners and more than 4/5 of the building owners' consent.

[1] Article 16 (2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444 of Feb. 6, 2009), Article 27 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 21171 of Dec. 17, 2008) / [2] Article 16 (2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444 of Feb. 6, 2009) / [3] Article 16 (3) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785 of Dec. 21, 2007) / [4] Article 16 (3) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Article 19 of the Administrative Litigation Act

[1] Supreme Court Decision 2009Da30427 Decided October 15, 2009 (Gong2011Sang, 137) Decided December 9, 2010 / [2] Supreme Court Decision 2008Da9585 Decided March 29, 2012 (Gong2012Sang, 625)

Plaintiff (Law Firm, Kim & Lee LLC, Attorneys Lee Jae-in et al., Counsel for the plaintiff-appellant)

The head of Gangseo-gu Seoul Metropolitan Government (Law Firm Hanm, Attorneys Kim Jong-soo et al., Counsel for the plaintiff-appellant

Domine Village Rebuilding and Rearrangement Project Association (Law Firm Square, Attorneys Park Jong-ho et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2009Nu37205 decided October 14, 2010

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

The grounds of appeal by the Defendant and the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) are examined together.

1. As to the misapprehension of legal principles as to the interest of a lawsuit seeking nullification of the disposition approving the establishment of the instant association

A. Regarding the first and second modification approvals:

According to Article 16 (2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444 of Feb. 6, 2009; hereinafter “former Act”), when a committee for the promotion of housing reconstruction projects intends to establish an association, it shall obtain approval from the head of Si/Gun with the consent of at least 2/3 of the sectional owners and voting rights of each building in a housing complex and the consent of at least 3/4 of all sectional owners and voting rights of each building in a housing complex, notwithstanding the provisions of Article 47 (1) and (2) of the Act on the Ownership and Management of Aggregate Buildings, and the same shall also apply when it intends to modify the matters for which authorization was obtained, and the same shall also apply when it intends to modify the matters for which authorization was obtained by the head of Si/Gun without the consent of the association members.

In addition, according to Article 27 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 21171, Dec. 17, 2008; hereinafter “former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”), the term “minor matters prescribed by Presidential Decree” under the proviso of Article 16(1) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents means the name and location of the main office of the association, the address and name of the head of the association (paragraph 1), the replacement or new joining of union members where the rights of union members have been transferred due to the sale and purchase of land or buildings (paragraph 2), the matters to be modified due to the alteration of the rearrangement zone or the rearrangement plan under Article 4 of the Act

An administrative agency’s disposition of approving the establishment of a reconstruction association is a kind of right disposition that grants a status as an administrative body to a promotion committee of a housing reconstruction project (see Supreme Court Decision 2009Da30427, Oct. 15, 2009). Article 16(1) of the former Act requires that the same requirement and procedure as the disposition of approving the establishment of a housing reconstruction association should be satisfied when modifying the contents of the disposition of approving the establishment of a housing reconstruction association. However, even if an administrative agency issued a disposition in the form of authorization of modification of an association establishment with respect to a minor modification as provided by each subparagraph of Article 27 of the former Enforcement Decree of the Act without the same requirement and procedure as the disposition of approving the establishment of a housing reconstruction association, its nature is nothing more than the meaning of accepting a report of modification of an insignificant matter, and even if there is a disposition of approving the modification of an insignificant matter, the disposition of approving the establishment of a housing reconstruction association cannot be deemed as extinguished (see Supreme Court Decision 2005Du554, Apr. 25, 2009).

According to the reasoning of the judgment below and the records, the intervenor applied for the authorization of the establishment of the association by additionally obtaining consent from 31 land and housing owners in the rearrangement zone of this case, and the defendant applied for the authorization of the establishment of the association on December 24, 2007. The consent rate of 91.56% (i.e., 228 persons ± 249 persons ± 100) and the first disposition of the first approval for the establishment of the association against the intervenor was taken. The intervenor again applied for the authorization for the establishment of the association by additionally obtaining consent from 1 land and housing owners in the rearrangement zone of this case, and the defendant applied for the authorization for the establishment of the association on August 27, 2008.

Examining these facts in light of the above legal principles, the first and second dispositions of modification are based on the replacement or new joining of union members where the rights of union members have been transferred due to the sale and purchase of land or buildings, and it is merely the meaning of accepting a report on modification of minor matters under Article 27 subparagraph 2 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Areas. Thus, the interest of a lawsuit seeking confirmation of the establishment of the association cannot be deemed to be extinguished due to the first and second modified dispositions, and therefore, the lower court’s conclusion that there is a benefit of lawsuit seeking confirmation of the establishment of the association of this case is justifiable. In so doing, the lower court did not err by misapprehending the legal principles as to the interest of lawsuit seeking confirmation of invalidity of the establishment

B. As to a disposition for authorization for the establishment of an association on December 13, 2010 (hereinafter “disposition for authorization for the third modification”).

In a case where a housing reconstruction project association obtains a new authorization for changing its establishment through the same requirements and procedures as the authorization for establishing an association, if the relevant housing reconstruction project association performs follow-up acts such as exercising a right to demand sale, a resolution of the general meeting on the selection of the executor, the establishment of a project implementation plan, and the establishment of a management and disposal plan under the premise that the initial authorization for establishing an association was invalidated or revoked, such follow-up acts under the premise that the initial authorization for establishing an association remains null and void retroactively (see Supreme Court Decision 2008Da9585, Mar. 29, 2012). Therefore, barring any special circumstance, barring such form of authorization, the interest in filing a lawsuit seeking confirmation of the initial authorization for establishing an association cannot be deemed

According to the reasoning of the judgment below and the records, the promotion committee of this case filed an application with the defendant around July 1, 2007 for authorization to establish an association. The defendant, on August 1, 2007, held 207 the improvement zone of this case before it was amended by Act No. 8785, Dec. 21, 2007; hereinafter the "former Urban Improvement Act") of 4/5 or more of the owners of the land or buildings stipulated in Article 16 (3) of the former Act, and 2/3 or more of the requirements for consent of the owners of the land or buildings at least 4/5 of the land area of 2/10 or more of the total land area of 10 or more of 2/5 of the land owners, on the premise that the above application satisfies only one requirement of consent of the owners of the above building (including 200/710 or more of the 203 owners of the building and 4/100 of the building, 208 or 164.

Examining these facts in light of the above legal principles, insofar as an intervenor conducted follow-up activities such as the establishment of a project implementation plan and the establishment of a management and disposal plan on the premise of the validity of the disposition approving the establishment of the instant association, even if the intervenor subsequently obtained the third modification approval through the same requirements and procedures as the approval for the establishment of a new association, it shall be deemed that the Plaintiff has a legal interest in seeking nullification of the disposition approving the establishment of

2. As to the misapprehension of legal principles as to the importance and clarity of the defect in the disposition to establish the association of this case

According to Article 16 (2) of the Act on the Ownership and Management of Aggregate Buildings, when the committee for promotion of housing reconstruction projects intends to establish an association, it shall obtain authorization from the head of a Si/Gun, along with articles of association and documents prescribed by the Ordinance of the Ministry of Construction and Transportation with the consent of at least 2/3 of the sectional owners and voting rights of each building in the housing complex, and the consent of at least 4/5 of all sectional owners and voting rights within the housing complex, notwithstanding the provisions of Article 47 (1) and (2) of the Act on the Ownership and Management of Aggregate Buildings. The same shall also apply when it intends to modify the authorized matters. According to the provisions of paragraph (3) of the same Article, if an area which is not a housing complex is included in a rearrangement zone, it shall obtain the consent of at least 4/5 of the owners of land or structures within the area which is not a housing complex and of at least 2/

In light of the contents, form, and structure of the above provisions, when a committee for promotion of housing reconstruction projects establishes an association, it is reasonable to view that (1) if a rearrangement zone consists of only a housing complex, consent is required under Article 16(2) of the Urban Improvement Act before the amendment. (2) If an area which is not a housing complex is included in a rearrangement zone, consent is required under Article 16(2) of the Urban Improvement Act before the amendment, but in addition, consent is required under Article 16(3) of the same Act for an area which is not a housing complex. (3) If a housing complex is not included in a rearrangement zone, consent is required under Article 16(3) of the same Act.

Meanwhile, Article 2 Subparag. 9(b) of the Act on the Improvement of Urban Areas and Dwelling Conditions before the amendment provides that “owners of land, etc.” of a housing reconstruction project shall mean owners of buildings and appurtenant land located in a zone other than a rearrangement zone, owners of housing and appurtenant land prescribed by the Presidential Decree, owners of appurtenant facilities, welfare facilities, and owners of appurtenant land.” Article 16(3) of the same Act explicitly prescribes that “owners of land and buildings are owners of land or buildings,” and Article 16(3) of the same Act explicitly states “not less than 4/5 of owners of land or buildings.” Although only owners of land or buildings can not become partners of a housing reconstruction project (Article 2 subparag. 9(b) and Article 19(1) of the Act on the Maintenance of Urban Areas and Dwelling Conditions before the amendment, land or buildings owned may be subject to a claim for sale (Article 39 of the Act on the Maintenance of Urban Areas and Dwelling Conditions before the amendment), and the owners of land and buildings within a rearrangement zone shall be construed as “owners of land or buildings within a rearrangement zone.”

In addition, in order for a defective administrative disposition to be null and void as a matter of course, it must be objectively obvious that the defect violates the important part of the law and objectively. In determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective, and at the same time, reasonable consideration should be made on the specificity of the specific case itself (see, e.g., Supreme Court en banc Decision 94Nu4615, Jul. 11, 1995; Supreme Court Decision 2010Du10907, Feb. 16, 2012). Meanwhile, in cases where an administrative agency takes an administrative disposition with respect to a certain legal relation or factual relation by applying a certain provision of the law clearly stated that the provision of the law cannot be applied, and even if there is no room for dispute over the interpretation of the law, it is obvious that the defect is significant and obvious that the administrative disposition is subject to 208Da2084, which is an objective and apparent interpretation.

According to the reasoning of the judgment below and the record, the Defendant rendered the instant disposition to establish the association on the ground that at least 4/5 of “at least 4/5 of the landowners” or “at least 4/5 of the landowners” among the requirements for consent under Article 16(3) of the Urban Improvement Act before the amendment, the Defendant met only one requirement, and thus, did not satisfy the requirement for consent of the landowners. However, the instant disposition to establish the association on the ground that the requirements for consent of the landowners were satisfied. The total number of landowners of land or buildings at the time of the instant disposition to establish the association are 284 persons (at least 242 persons who own land and buildings, 41 persons who own land and buildings, 198 persons who own land and buildings, 7 persons who own land, and 0 persons who own buildings) and among them, the consent rate is 72.18% (i.e., 205 persons who own buildings ± 2804 persons).

Examining these facts in light of the aforementioned legal principles, the instant disposition of approving the establishment of a housing association is unlawful as it does not meet the consent requirements under Article 16(3) of the Act before the amendment, and its defect is significant. However, the literal meaning of “not less than 4/5 of the owners of land or buildings” is not clear, and there is sufficient room to interpret it differently, and Article 39 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions before the amendment of a claim for sale is defined as the counter-party to the claim for sale, and there is room for misunderstanding that “the owner of a building or land is not the counter-party to the consent of the establishment.” The owner of only the building or land cannot be the counter-party to the housing reconstruction association. The consent sheet used by the Defendant cannot be deemed to be the counter-party to the housing reconstruction association; the consent sheet used by the owner of the housing and residential environment improvement zone (amended by Ordinance No. 3620, Apr. 17, 2008) [Attachment 7], and the above form can not be objectively included in the land owner’s consent.

Nevertheless, the court below determined otherwise only for the reasons indicated in its holding. In so doing, the court below erred by misapprehending the legal principles as to the invalidation of a disposition approving the establishment of an association, thereby affecting the conclusion of its judgment.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Defendant and the Intervenor, 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.

Justices Min Il-young (Presiding Justice)