Plaintiff 1 and three others (Law Firm Dun & Yang, Attorneys Kim Young-jin et al., Counsel for the plaintiff-appellant)

The head of Dongjak-gu Seoul Metropolitan Government (Seo Law Firm, Attorney Park Sang-chul, Counsel for the plaintiff-appellant)

The Housing Construction and Maintenance Project Association (Law Firm Squa, Attorneys Southern Ro-young et al., Counsel for the plaintiff-appellant)

March 28, 2012

Seoul Administrative Court Decision 2010Guhap42515 decided August 24, 2011

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal, including the costs of supplementary participation, are borne by the Plaintiffs.

The judgment of the first instance is revoked. The Defendant’s disposition of approving the establishment of the association against the Intervenor joining the Defendant (hereinafter “ Intervenor”) on August 12, 2010 shall be revoked.

1. Quotation of the first instance judgment

The reasoning of the judgment of the first instance is reasonable, and therefore, it is cited for this decision in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Judgment on the argument in the appellate trial

A. Determination of owners of lands, etc.

1) Nonparty 1, 2, and 3

The Plaintiffs asserted that, after the disposition to establish the instant association, the complaint was served between April 6, 201 and June 3, 2011 on the part of Nonparty 1, 2, and 3, the Intervenor had already been aware of, or failed to make full efforts to detect, its whereabouts, during the period from April 6, 2011 to June 3, 201, and that such three persons should be included in the owners of land, etc. since they were not known.

However, solely on such circumstances alone, it is difficult to readily conclude that the Defendant or the Intervenor was aware of his whereabouts or did not make sufficient efforts to detect his whereabouts on August 12, 2010, etc. The Plaintiffs’ assertion is without merit.

2) Nonparty 4 and 5

Although Nonparty 4 and Nonparty 5 died respectively in 1995 and 1982, they did not register inheritance on the owned real estate, in the case of Nonparty 4, Nonparty 16, who was his children, owned a building in the rearrangement zone of this case, and the intervenor contacted with Nonparty 16 several times before obtaining consent from Nonparty 16. In addition, Nonparty 4 and Nonparty 5 applied for the change of the association establishment on the ground that Nonparty 5 had already died before the inheritance registration of Nonparty 4 and Nonparty 5 was completed, the intervenor should be deemed to have been aware of the death of Nonparty 4 and 5 at the time of applying for the establishment authorization. Thus, it is unlawful to exclude the land owner from the category of land or building.

However, as the reasoning of the judgment of the first instance, it is difficult to view that the defendant or intervenor at the time of establishing the association of this case was aware or was able to know the death of the non-party 4 and the non-party 5, and such circumstance alone as alleged by the plaintiffs cannot be viewed differently due to the above circumstances alleged by the plaintiffs (not only because the non-party 4 and the non-party 5 are included in the owners of land, etc. due to the circumstance as alleged by the plaintiff, 237 owners of land, etc. are 237 owners of land, and the ratio of consent is 178 persons among them

B. As to the calculation of the number of consenters

(i) state-owned or public land;

A) The plaintiffs' assertion

The plaintiffs asserted that state-owned and public-owned land should be submitted with the consent of the property management authority, and even if not, the state-owned and public-owned land property management authority in the rearrangement zone of this case should not be included in the number of consenters because they did not explicitly express their consent to the intervenor who is the other party to the consent as follows.

(1) Dongjak-gu is merely a notification of consultation with the competent department about the designation of an improvement zone one year prior to the designation of an improvement zone, and such circumstance alone cannot be deemed as consenting to establishing an association.

(2) The response of opinions between Seoul Special Metropolitan City and the Korea Forest Service is made to a defendant who is not a participant after an application for authorization to establish an association, and thus cannot be viewed

(3) The Ordinance of the Ministry of Strategy and Finance shall not be deemed to have consented to three parcels among the total 15 parcels since the Korea Asset Management Corporation did not express its opinion, except for the submission of opinions.

(4) The Ministry of Land, Transport and Maritime Affairs shall not express any opinion.

B. Determination

Article 28(1)5 of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for the state-owned and public land as the owner of the land, so the property management authority of the state-owned and public land as the owner of the land, etc. falls under the person entitled to consent to establish an association. However, given the nature of the consent of the property management authority, it is difficult to view that the written consent form using a seal imprint prescribed in Article 17 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for the State-owned and public land is not required, and there is no other provision on it. Therefore, it is reasonable to deem that

However, Dongjak-gu also holds the position of representing Dongjak-gu at the same time as the disposition authority of the disposition of approving the establishment of this case. Thus, it can be deemed that the defendant expressed his/her intent to consent to establish the association through the disposition of the authorization of this case (see Supreme Court Decision 2004Du138, Mar. 11, 2005).

Next, whether the consent on the establishment of an association is satisfied is based on the time of disposition on authorization to establish an association, and consent on the establishment of an association is merely the requirement of disposition on authorization to establish an association, not the act of establishing an association, and it is not necessarily required to be limited to the association. Therefore, the Seoul Special Metropolitan City and the Korea Forest Service’s expression of consent to the defendant before the approval to establish an association

In addition, Article 28(1)2(b) of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for the calculation of one owner of a plot of land, regardless of the number of ownership ownership, if one person owns more than two ownership. Therefore, even if one person owns a number of real estate, the intention of consent by real estate cannot be different. Therefore, it is reasonable to deem that the Korea Asset Management Corporation entrusted with the management and disposal of State-owned general property by the Minister of Strategy and Finance expressed his/her intention of consent to establish an association, unless there are other special circumstances. However, since the Korea Asset Management Corporation, which was entrusted with the management and disposal of State-owned general property by

Finally, the Ministry of Land, Transport and Maritime Affairs, the representative of the Ministry, and the Ministry of Land, Transport and Maritime Affairs, are in the position of being reported by the competent authorities on the maintenance plan, the maintenance plan and the designation of the rearrangement zone, and the formulation of the maintenance plan including the matters concerning the reversion and disposal of state property when establishing the maintenance plan (Articles 3(5), 3(7), 4(5), and 4(10) of the Urban Improvement Act). However, the Minister of Land, Transport and Maritime Affairs did not present any particular opinion in the consultation or opinion submission procedure for the maintenance plan, the maintenance plan and the designation of the rearrangement zone, and there was no objection to the establishment of the association of this case. In this respect, it is reasonable to view that the Ministry of Land, Transport

Therefore, the managing authority of state-owned and public land in the instant improvement zone shall be deemed to have consented to the establishment of an association. The Plaintiffs’ assertion disputing this issue shall not be accepted.

2) Persons withdrawing consent

A) The plaintiffs' assertion

The plaintiffs asserted that, for the following reasons, Nonparty 6, 7, 8, and 9, who had withdrawn consent before applying for authorization to establish an association, should be excluded from the consenters.

① The delegation to the Presidential Decree under Article 17(2) of the Act is only “necessary matters concerning the method and procedure for calculating the number of consenters,” and Article 28(4) of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents may withdraw consent to establish an association before applying for authorization to establish an association. However, if any of the subparagraphs of Article 26(2) is not modified after the consent to establish an association, the restriction on withdrawal of consent shall not be withdrawn even before the application for authorization is filed. This is invalid as it goes beyond the scope of delegation by the superior law.

② There is no time limit to the consent to establish an association, and there is no restriction that the consent to establish a promotion committee shall not be withdrawn if the matters set forth in the subparagraphs of Article 26(2) are not modified. As such, limiting the time and requirements of withdrawal is against the principle of equality and unfairly restricting the right of withdrawal.

③ In particular, Nonparty 7, 8, and 9, among four persons withdrawing consent, excluded the Defendant from the number of consenters by deeming the Defendant as a legitimate withdrawing person. The Intervenor also filed a lawsuit claiming sale against him/her, and thus, the number of consenters should not be included.

B) Determination

(1) Whether it exceeds the limitation of delegated legislation

The Enforcement Decree or the Enforcement Rule of the Act, unless otherwise delegated by the Act, cannot modify or supplement the contents of rights and obligations of an individual or determine new contents that are not provided for by the Act. However, the legislative purport of the parent law and the entire provisions of the Enforcement Rule of the Act are merely to stipulate the possibility of interpretation of the parent law by systematically and systematically examining the legislative purport of the parent law and the entire provisions of the relevant provisions, or if it is for embodying them based on the purport of the parent law, it cannot be deemed to be beyond the scope of the parent law’s regulation. Thus, even if there is no provision directly entrusting the parent law, it shall not be deemed null and void. In addition, in determining whether there is delegation by the parent law, it shall also be considered in addition to the form and content of the directly delegated provision (see Supreme Court Decision 2011Du15640, Oct. 27, 2011).

Examining these legal principles in light of the following circumstances, the provision of this case is based on delegation of Article 17(2) of the Urban Improvement Act and does not exceed the scope of delegation. The Plaintiffs’ assertion disputing this cannot be accepted.

① Article 17(2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for the Revocation of Consent of the Establishment of an Association stipulates that “necessary matters concerning the method of calculating the number of consenters” of the owners of land, etc. shall be prescribed by Presidential Decree. However, since a person who has lawfully withdrawn consent cannot be included in the number of consenters, the method of calculating the number of consenters can be deemed to include “matters concerning the withdrawal of consent”.

② A rearrangement project implemented under the Urban Improvement Act is characterized as a public project, and a partnership for maintenance and improvement projects, a project implementer, has the status as an administrative subject (Supreme Court en banc Decision 2007Da2428 Decided September 17, 2009). In addition, since a large number of interested parties exist, a rearrangement project is implemented through a very complicated and complicated procedure to properly adjust their interests, and requires strict regulations on organization law. In this regard, the procedure for implementing a rearrangement project, including the establishment of an association, requires high level of legal stability, clarity, and trust protection. The consent of owners of land, etc. is required in writing using a seal imprint and attaching a certificate of seal imprint can be understood in the same context.

③ However, if the owners of land, etc. who agreed to establish an association can freely withdraw their consent without any restriction, legal stability, clarity, or protection of trust will be considerably infringed. Therefore, in the event of significant changes in circumstances, the withdrawal of consent should be allowed in order to protect the rights and interests of the consenters. However, allowing unlimited withdrawal of consent according to individual circumstances of the consenters is difficult to comply with the request for legal stability or protection of trust.

(4) In this respect, the instant provision allowing withdrawal only when the matters falling under each subparagraph of Article 26(2) of the Enforcement Decree after consent are changed is aimed at meeting harmoniously the above legal stability request and the necessity for the withdrawal of consent by individual consenters. As such, the provision stipulating that it is possible to interpret the Urban Improvement Act within the scope of the regulation of the Urban Improvement Act or embodying it, it cannot be said that it exceeds the legislative discretion of the legislators.

(2) Whether it is against the principle of equality and unfair

Since the status of the association establishment and the association establishment promotion committee are remarkably different, the withdrawal of consent to the establishment of the association and the withdrawal of consent to the establishment of the promotion committee cannot be seen as the same, therefore, it cannot be viewed as contrary to the principle of equality.

In addition, the restriction on the right to withdraw consent is derived from the request for legal stability, clarity, and trust protection as seen earlier for the smooth progress of the rearrangement project. In light of the degree of such restriction, the right to withdraw consent of the owners of land, etc. cannot be excessively restricted and violated the principle of proportionality, etc.

(3) Other allegations

At the time of the Defendant’s disposition approving the establishment of the instant association, Nonparty 7, 8, and 9, among the persons withdrawing consent, excluded the number of consenters from the number of consenters, and even if the Intervenor exercised the right to demand sale and filed a lawsuit claiming ownership transfer registration against them, it does not constitute a legitimate withdrawal of consent, and therefore, the Plaintiffs’ assertion in this part is without merit.

C. Violation of duty to notify

1) Plaintiffs’ assertion

The Plaintiffs asserted that the instant disposition to authorize the establishment of an association was unlawful since they did not go through such procedures to the owners of land, etc. who agreed to organize the promotion committee by 60 days prior to the date of application for authorization to establish the promotion committee, and to notify the matters included in the written consent

2) Determination

The proviso of Article 24(1) of the Enforcement Decree of the Urban Improvement Act (hereinafter “instant notification provision”) provides that the owner of a plot of land, etc. who has consented to the organization of the committee shall be notified of the withdrawal of consent to the establishment of the association by registered mail 60 days prior to the date of application for authorization to establish the association. However, in light of the following, even if such procedures were not followed at the time of application for authorization to establish the association of this case, the defect cannot be deemed as significant. The Plaintiffs’ assertion is rejected.

① The instant notification provision was introduced on July 15, 2010 by the Enforcement Decree, which was immediately before the promotion committee applied for authorization to establish the instant association on August 2, 2010, and was enforced from July 16, 2010.

② This provision was introduced to protect the interests of the owners of lands, etc. who consent to the organization of the promotion committee as long as the Act was amended on February 6, 2009, and the provisions deemed to be agreed to the establishment of the promotion committee (Article 13(3) of the Urban Improvement Act) were newly established unless the owners of lands, etc. who consent to the organization of the promotion committee express their intent of opposing the establishment before filing an application for authorization to establish the promotion committee. This provision is limited to the owners of lands, etc. who consent

③ However, the foregoing provision on deeming consent applies to the portion agreed to the composition of the promotion committee after the enforcement of the amended Act on February 6, 2009 (Article 4 of Addenda). In this case, since the formation approval of the promotion committee was made on February 7, 2007 (Evidence B and 105), there is no room for application of the provision on deeming consent to this case (Evidence B and 105). Accordingly, in this case, the notification provision of this case cannot be said to be subject to protection under the legislative purpose.

④ Meanwhile, as seen earlier, the instant withdrawal restriction provision cannot withdraw consent to the establishment of an association unless the matters under the subparagraphs of Article 26(2) of the Enforcement Decree are modified after consent to the establishment of the association. In this case, the owners of land, etc. did not change the matters under the subparagraphs of Article 26(2) of the Enforcement Decree after consent to the establishment of the association. Thus, the consent of the establishment of the association could not be withdrawn regardless of the notification under the instant notification provision.

3. Conclusion

The plaintiffs' assertion is without merit and all appeals are dismissed.

Judges Ansan-jin (Presiding Judge)

(1) Article 28(4) of the Enforcement Decree of the Act also argues that the part that limits the time of withdrawal of consent to the application for authorization is invalid until the application for authorization is filed. However, since the four persons at issue in the instant case withdraw their consent before the application for authorization is filed, the Plaintiffs are not separately determined on the grounds that the presumption of judgment whether the provision that limits the time of withdrawal