Where a project implementation plan for an urban environment improvement project is null and void automatically, whether there is a legal interest in seeking nullification or revocation of a management and disposal plan even to the owners of land, etc. who failed to apply for parcelling-out within the period of application for parcelling-out or lost the status of its members under Article 47 of the Act on the Maintenance and Improvement

Where there is a defect of invalidity automatically in the project implementation plan for an urban environment improvement project, an urban environment improvement project partnership shall newly establish a project implementation plan and obtain authorization from the competent authority, and establish a management and disposal plan by applying for parcelling-out. Therefore, the owners of land, etc. who do not apply for parcelling-out within the period of application for parcelling-out or lost the status of the members under Article 47 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents and the articles of association due to withdrawal of application for parcelling-out may purchase buildings, etc

Article 12 of the Administrative Litigation Act, Article 47 of the Act on the Improvement of Urban Areas and Dwelling Conditions for Residents

Plaintiff 1 and eight others (Attorney Seo-gu et al., Counsel for the plaintiff-appellant)

The Urban Environment Improvement Association in Zone 1-1 (Attorneys Kim Young-hun et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2008Nu7184 decided September 25, 2008

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. According to the reasoning of the judgment of the court of first instance cited by the court below, the remaining plaintiffs except the plaintiffs 7 did not apply for parcelling-out of the housing of this case until February 9, 2007, the period for the application for parcelling-out of the housing of this case, which was notified by the defendant after the change of the project implementation of this case, and the plaintiffs 7 did not apply for parcelling-out of the housing of this case. The defendant failed to reach a consultation with the plaintiffs and withdrawn it. The defendant made a decision of acceptance for the remaining plaintiffs except the plaintiffs 7 upon the plaintiff's application for expropriation. According to Article 11 of the defendant's articles of incorporation, when a member is disqualified as a member of the association, when a member of the association is transferred the ownership of the building or the status of the occupant, and when the plaintiff did not apply for parcelling-out within the period for parcelling-out, the defendant established the management disposition plan of this case based on the status of the application for parcelling-out, and the defendant can accept the land of this case. Thus, since the project implementation plan of this case does not dispute.

2. However, the lower judgment is difficult to accept for the following reasons.

Where there is a defect that is void automatically in the project implementation plan for an urban environment improvement project, the urban environment rearrangement project partnership shall newly establish the project implementation plan, obtain authorization from the competent authority, and establish a management and disposal plan by applying for parcelling-out, and the owner of the land, etc. who fails to apply for parcelling-out within the period of application for parcelling-out or has lost the status of the members under Article 47 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents and the articles of association due to withdrawal of application for parcelling-out may purchase buildings, etc.

However, according to the records, the court below alleged that the plaintiffs' act of the project of this case and its modification plan of this case were invalid as a result of significant and obvious defects and that the management and disposal plan of this case based on this premise is also illegal. If there are grounds for invalidity as alleged by the plaintiffs, such as the project of this case and its modification plan of this case, it is reasonable to view that the plaintiffs have legal interest to seek cancellation

Therefore, the court below should have deliberated on the grounds for the invalidation of the business action plan of this case and its modification plan, which are prior dispositions, and examined the legitimacy of the plaintiffs' assertion. However, without any determination as to this point, the court below held that the business action plan of this case, the modified approval of which remains legitimate, and thus, the plaintiffs have no standing to sue or legal interest in seeking the cancellation of the management and disposition plan of this case. Thus, the court below erred by misapprehending the legal principles on the legal interest seeking the cancellation of the management

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Ahn Dai-hee (Presiding Justice)