Plaintiff 1 and seven others (Law Firm Dokdo et al., Counsel for the plaintiff-appellant)

The head of Eunpyeong-gu Seoul Metropolitan Government

Seoul High Court Decision 201Na1448 decided May 1, 201

Seoul Administrative Court Decision 2010Guhap5882, 10402 decided August 12, 2010

March 18, 2011

1. Revocation of a judgment of the first instance;

2. All plaintiffs' claims are dismissed.

3. The total cost of the lawsuit shall be borne by the Plaintiffs, including the part resulting from the supplementary participation.

1. Purport of claim

On April 27, 2005, the Defendant confirmed that the Defendant’s Defendant’s Intervenor’s Intervenor’s Intervenor’s approval for establishment of Housing Redevelopment Project Association was null and void, and that the approval for alteration of the Housing Redevelopment Project Association’s establishment was made on April 24, 2007.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

(a) Details of designating a zone to be rearranged;

(1) On June 25, 2004, the Mayor of Seoul Special Metropolitan City formulated and publicly announced a master plan for urban and residential environment improvement (hereinafter “master plan for urban and residential environment improvement (hereinafter “master plan for 2004”) in 2010, which included the contents of the designation of the zone for separate improvement as the zone for the same (number 2 omitted) as the zone for large-dong (number 1 omitted; hereinafter “number 1 omitted”) of Eunpyeong-gu Seoul Special Metropolitan City as shown in the following table.

In the form of the implementation of the project at the stage of promoting the building-to-land ratio ratio by the number number number (Seoul Eunpyeong-gu) size (h) of the zone (Seoul) number in the main sentence, 3 large-dong (number 1 omitted) 2.1 190% and 60% and less than 12 3 housing redevelopment C (number 1 omitted) 4 large-scale 4 large-scale 9.0% and 190% and less than 60% of 12 stories (number 2 omitted) of 3 housing redevelopment C (round 12);

(2) After February 12, 2009, the Mayor of Seoul Special Metropolitan City revised and publicly announced the master plan for urban and residential environment improvement, which contains (number 2 omitted) areas and (number 1 omitted) areas designated in the master plan for 2004 as well as (number 1 omitted) areas, as shown in the following table.

The full part that there is no change in the type of improvement of living zone by three large-dong (number 2 omitted), (number 1 omitted) 1.1 by the method of implementing the project at the stage of promoting the building-to-land ratio ratio by the number number (Seoul) size (h) of the zone number contained in the main sentence.

(3) On the other hand, the Seoul Special Metropolitan City Housing Redevelopment Master Plan in 1998 was designated as 2 areas to be rearranged in Taiwan Dong as follows (hereinafter “Master Plan in 198”).

Housing supply promotion 220% in front 224 Ga-dong 13.6 Housing supply promotion 224 Ga-dong 13.6 Do-dong 320% in front/water-to-land supply implementation phase 14 Ga-dong 3.9 Ga-dong in the development direction-to-land ratio method

B. The grounds for applying for approval of the establishment promotion committee of the Intervenor joining the Defendant (hereinafter “ Intervenor”)

(1) On March 2003, part of the owners of lands, etc. in the zone was established with the purpose of promoting a housing redevelopment project from March 2003 and partially submitted a written consent for the establishment of the committee for the purpose of promoting the housing redevelopment project. On May 2003, part of the owners of lands, etc. in the zone was established for the purpose of promoting the housing redevelopment project from May 2003 and submitted a written consent for the establishment of the committee for the promotion of the housing redevelopment project.

(2) Following the announcement of the basic plan in 2004, there was a movement to promote a housing redevelopment project by integrating (number 2 omitted) zones and (number 1 omitted) zones, and on March 9, 2005, a participant who decided to implement a housing redevelopment project in the zone which combines (number 2 omitted) zones and (number 1 omitted) zones and (number 1 omitted) zone with the name of the promotion committee on March 9, 2005, filed an application with the Defendant for approval to establish an association (hereinafter referred to as the “instant promotion committee”) with the name of the promotion committee, “non-party,” the representative “non-party,” the location of the zone scheduled for the implementation of the project, “number 2 omitted),” “109,065.87 square meters,” and all of the written consents submitted to the Defendant before the approval to establish the association (hereinafter referred to as the “instant promotion committee”). The owners of land, etc. were submitted with consent of 11,362 members, which had been submitted.

(c) Details of approval for establishment and approval for modification;

(1) On April 27, 2005, the Defendant obtained the consent of a majority of the owners of lands, etc. in a zone scheduled to implement a project (1,362, 814 persons, and 59.77% of the consent rate) on the above application, pursuant to Article 13(2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444, Feb. 6, 2009; hereinafter “former Act”), and Article 6 of the Enforcement Rule of the same Act (amended by Ordinance No. 594, Dec. 13, 2007) (hereinafter “instant approval for establishment”). Since then, the Defendant issued a modified approval for establishment of an association (hereinafter “instant approval for establishment”).

(2) Examining the consent rate for the establishment of the promotion committee by area at the time of the instant disposition for approval for establishment, the consent rate within the (number 2 omitted) area was 5.9% and (number 1 omitted) 66.44%.

(d) Designation and public announcement of improvement zones;

Since May 7, 2009, the Seoul Special Metropolitan City Mayor designated and publicly announced the large-dong (number 1 omitted), 110,773 square meters (number 2 omitted) of Eunpyeong-gu Seoul Metropolitan Government as a large-scale housing redevelopment improvement zone (hereinafter “instant improvement zone”) under Article 209-181 of the Seoul Metropolitan Government Public Notice.

[Ground of recognition] Facts without dispute, Gap's 2 through 14, 17 through 22, 24, 25, Eul's 1, 3 through 8, Eul's 1 through 9, and the purport of the whole pleadings

2. Determination of the principal safety defense by the Defendant and the Intervenor (hereinafter “Defendant, etc.”)

The defendant et al. asserts that the intervenor held an inaugural general meeting on June 20, 2010 to establish a housing redevelopment and rearrangement project association in the large area No. 1, and that the defendant et al. obtained authorization from the defendant on October 4, 2010, and there is no legal interest in dispute over the validity of the approval for establishment as well as the purpose of the establishment.

Even if the committee was dissolved on the ground of the achievement of the purpose of establishing the redevelopment partnership, the revocation of the authorization for establishment of the redevelopment partnership that comprehensively succeeds to the rights and obligations of the committee. If the authorization for establishment of the redevelopment partnership is revoked, the rights and obligations of the redevelopment partnership have to remain in the committee, and the committee still remains in its general succession. Therefore, the committee of promoters should continue to exist within the scope of the revocation. Accordingly, the plaintiffs have legal interest in dispute as to the validity of the permission for establishment of this case against the committee of promoters. This part of the defendant et al.'s assertion is without merit

3. Whether the approval for establishment of this case or the approval for modification is void

A. The plaintiffs' assertion

The approval of the establishment of this case has the following defects, and its defect is serious and clear, and thus is null and void, and the approval of the modification of this case is also null and void.

(1) Defects in the establishment of the promotion committee and the approval for modification before the designation and announcement of the improvement zone

The approval for establishment cannot be granted without the designation or public notice of a rearrangement zone because the scope of a rearrangement zone or the scope of the owners of land, etc. is not determined before the designation or public notice of a rearrangement zone. In addition, when granting approval for establishment to a promotion committee established by integrating at least two areas scheduled to be rearranged into a single rearrangement zone as specified in the master plan for rearrangement, it is against the master plan for rearrangement, and it violates the authority of the person entitled to formulate

However, the approval for establishment of this case was made before the designation and public announcement of the rearrangement zone, and it was made to the promotion committee established by arbitrarily integrating the (number 2 omitted) area and (number 1 omitted) area designated as a separate rearrangement zone, and the (number 1 omitted) area.

(2) The ratio of consent due to defects in the written consent to the establishment of the promotion committee

Even if it is not unlawful prior to the designation and public notice of the rearrangement zone in this case, since the intervenor filed an application for approval of establishment with the promotion committee by integrating (number 2 omitted) area and (number 1 omitted), since the intervenor and the committee of promotion submitted 526 written consent to the intervenor or the committee of promotion before entering into an agreement on consolidation, the written consent cannot be deemed as a written consent reflecting the scope of the project area modified by the consolidation, and since it was collected without attaching the list of promoters of the combined project area, such written consent shall be excluded from calculating the consent rate. Except for this, the consent rate falls short of the majority and the disposition in this case is unlawful as it does not meet the consent requirement.

B. Determination

(1) As to the assertion of defects in the establishment of the promotion committee and the approval for modification before the designation and announcement of the improvement zone

㈎ 행정처분이 당연무효라고 하기 위해서는 처분에 위법사유가 있다는 것만으로는 부족하고 하자가 법규의 중요한 부분을 위반한 중대한 것으로서 객관적으로 명백한 것이어야 하며, 하자의 중대·명백 여부를 판별함에 있어서는 법규의 목적, 의미, 기능 등을 목적론적으로 고찰함과 동시에 구체적 사안 자체의 특수성에 관하여도 합리적으로 고찰하여야 한다( 대법원 2004. 11. 26. 선고 2003두2403 판결 , 대법원 2007. 9. 21. 선고 2005두11937 판결 등 참조).

In addition, in cases where an administrative disposition was taken by applying a certain provision of a law to a certain legal relationship or fact, the legal doctrine clearly stating that the provision of the law is not applicable to such legal relation or fact, and thus, if an administrative agency takes the disposition by applying the above provision despite there is no room for dispute over the interpretation, the defect is grave and obvious. However, if there is room for dispute over the interpretation of the law because the legal principles that the provision of the law is not applicable to such legal relation or fact clearly revealed, it cannot be said that the defect is obvious even if the administrative agency erroneously interpreted it and issued an administrative disposition, and it is merely a mistake of the fact that the administrative disposition was taken. If there is objective circumstance that misleads that the legal relation or fact which is not subject to an administrative disposition is subject to the disposition, and it can only be found that it is the object of the disposition, it is obvious whether it is subject to the disposition, even if it is serious that the mistake is serious (see, e.g., Supreme Court Decisions 2002Da68485, Oct. 15, 2004; 38, 2016>

㈏ 아래와 같은 사정을 종합하면, 비록 이 사건 지정·고시 이전에 이 사건 설립 및 변경승인처분이 이루어졌다고 하더라도 그 하자가 중대하거나 명백하다고 할 수 없다.

① Article 13(1) and (2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444, Feb. 6, 2009; hereinafter the same) provide that “where a person, other than the head of a Si/Gun or the Housing Corporation, intends to implement a rearrangement project, an association comprised of owners of land, etc. shall be established; where such association is intended to be established, a promotion committee for establishing an association shall be organized with the consent of a majority of the owners of land, etc. after public announcement of designation of a rearrangement zone, and Articles 1 and 3 of the Addenda of the same Act provide that “this Act shall enter into force from the date of its promulgation. This Act shall enter into force from the date of its promulgation.” In this case, the revised provisions of Article 13(2) provide that “This Act shall apply from the first application for the approval of establishment of the promotion committee after the enforcement date of the above Act, and thus the amended provisions of

On the other hand, Article 13(1) and (2) of the former Act stipulated that “where a person, other than the head of a Si/Gun or the Korea Housing Corporation, intends to implement a rearrangement project, an association consisting of the owners of a plot of land, etc. shall be established, and where it is intended to establish the said association, an association establishment promotion committee shall be organized with the consent of a majority of the owners of a plot of land, etc. and the approval of the head of a Si/Gun shall be obtained.” However,

(2) Article 6 (1) of the Seoul Special Metropolitan City Ordinance on the Improvement of Urban and Residential Environments (amended by Ordinance No. 4359 of Jan. 1, 2006) provides that "where the head of the Gu intends to formulate a rearrangement zone at the request of residents, consent under Article 5 (7) shall be obtained from at least 2/3 of the owners of the land, etc., who have consented to the formation of an association establishment promotion committee under Article 13 (2) of the Act, shall be deemed to have consented to the formulation of the rearrangement zone designation." In such cases, the head of the Si/Gun/Gu, who has agreed to the establishment of an association establishment promotion committee under Article 13 (2) of the Act,

③ The Ministry of Construction and Transportation enforced and enforced as of September 2, 2003 by the Minister of Construction and Transportation, pursuant to the Act on the Criteria for the Operational Affairs of the Promotion Committee of the Establishment of Rearrangement Project Cooperatives, if the relevant area is reflected in the basic plan, the approval of the Promotion Committee was allowed even before the designation of the rearrangement zone.

④ Article 17 of the former Urban Improvement Act and Article 28(1)5 of the Enforcement Decree of the Urban Improvement Act (amended by Presidential Decree No. 21679, Aug. 11, 2009) guarantee that a person who withdraws consent prior to the application for approval by the promotion committee shall be excluded from the number of consenters of the land, etc. so that he/she may withdraw consent at any time before applying for approval.

㈐ 또한, 2004년 기본계획에 의하면, (지번 2 생략)번지 구역과 (지번 1 생략)번지 구역이 하나의 생활권유형(C형 : 2개 이상의 대규모 정비예정구역으로 이루어진 대규모 생활권)으로 지정되어 있고, “기본계획이 추구하는 도시계획 차원에서의 광역적 주거환경정비가 필요하다고 인정되는 경우에는 2개 이상의 정비예정구역을 1개의 정비구역으로 지정할 수 있다”고 규정하고 있으므로, 2개 이상의 정비예정구역을 하나로 통합하여 설립된 추진위원회에 대한 설립승인처분이 정비기본계획에 반한다거나 정비계획수립권자의 권한을 침해한다고 할 수도 없다.

(2) As to the assertion that the ratio of consent was insufficient due to the defect in the written consent to the establishment

In light of the following circumstances, the Intervenor’s application for the establishment of the instant promotion committee which combines (number 2 omitted) zone and (number 1 omitted) zone and (number 1 omitted) zone and the (number 1 omitted) zone and the (number 1 omitted) zone, and the validity of the written consent to the establishment of the promotion committee, prior to the establishment of the instant promotion committee, was filed by the Intervenor, which combines (number 2 omitted) zone and (number 1 omitted) zone and (number 1 omitted) zone, and did not require new written consent from the owners of existing lands, etc., and even if the list of promoters of the integrated promotion zone was not attached to the existing written consent, the existing written consent is valid, so it does not constitute a lack of consent ratio, such as the Plaintiffs’ assertion.

① According to the basic plan in 1998, both the adjacent (number 2 omitted) zone and (number 1 omitted) zone are identical to the housing supply promotion zone in terms of the building-to-land ratio, availability rate, etc., and “the scope of the zone shall be established by the planning unit linked to the adjacent area and surrounding area, not individual business units, so as to fully accommodate the impacts on the population and traffic volume increase anticipated by the redevelopment project.” Meanwhile, according to the basic plan in 2004 as seen earlier, each of the above zones is designated as one residential zone, and “where it is deemed necessary to improve the wide-area residential environment at the level of urban planning pursued by the basic plan, two or more zones to be rearranged may be designated as one rearrangement zone.” In addition, although there are some differences in the area of the planned rearrangement zone established in the same building zone in the basic plan in 1998 and the basic plan in 204 (number 2 omitted) and each parcel number number of the owners of land, etc. is deemed to have been included (number 1 omitted).

On the other hand, when the Urban Redevelopment Act was repealed and the Urban Improvement Act was enacted on December 30, 2002 and enacted from June 2003 to establish a promotion committee, there was a movement to establish a promotion committee separately from around 2003 (number 2 omitted) and (number 1 omitted) zone, and there was a movement to establish a promotion committee within each zone. In this movement, consent for the establishment of the promotion committee was enforced. In 2004, when the basic plan was announced in 2004, some of the owners of lands, etc. were to reach an agreement for the consolidation of each zone, and such movement was deemed to have been sufficiently notified to the owners of lands, etc. including the existing consenters. After that, the consent to establish the promotion committee was additionally drafted, (number 2 omitted) zone and (number 1 omitted) zone was integrated, and the existing consent was submitted along with the previous approval for establishment.

In light of the process of establishing and promoting the promotion committee of this case, the contents of each basic plan mentioned above, (number 2 omitted), and (number 1 omitted), the owners of lands, etc. in the zone of (number 1 omitted) areas could have anticipated the possibility of integrating and developing each area, etc., it is determined that the existing written consent submitted for the approval of this case has an emphasis on the intention to participate in the housing redevelopment project rather than focusing on the consent on the scope of the zone scheduled to be rearranged.

In addition, as seen earlier, Article 17 of the former Urban Improvement Act provides that a person who withdraws consent before the application for approval of the promotion committee shall be excluded from the number of consenters of the owners of land, etc., so that the owner of land, etc. may withdraw consent at any time before the application for approval is filed. There is no objection against the withdrawal of consent before and after the application for approval, and there is no reason to view that the expansion of the area to be rearranged by integration is disadvantageous to the consenters.

② In full view of the provisions of Article 13(2) of the former Act, Article 23(1)1 of the Enforcement Decree of the Act on Urban Improvement (amended by Presidential Decree No. 21679 of Aug. 11, 2009), and Article 6 of the Enforcement Rule of the Act on Urban Improvement (amended by Ordinance No. 594 of Dec. 13, 2007), the consent form of the owner of a plot of land, etc. is attached to the application for approval for establishment of the committee. The consent form of the committee is merely a material to explain the intent of the owner of a plot of land, etc. to consent to the establishment of the committee. The regulations on the operation of the committee do not necessarily have to be established until the time of approval for establishment. Since the written consent form or method of selection of the committee members after the approval for establishment of the committee is written and obtained the consent of the owner of the land, etc., the consent form of the committee’s operation regulations does not require the consent of all the committee members to be established (see Supreme Court Decision 2007Du12966, Jul. 24, 20008).

4. Conclusion

Therefore, the plaintiffs' claims in this case are dismissed on the premise that the approval of this case and the approval of alteration are unlawful and invalid. The judgment of the court of first instance, which has different conclusions, is unfair, and all of the claims of the plaintiffs are dismissed. It is so decided as per Disposition.

【Attached Provisions】

Judges Kim Byung-chul (Presiding Judge)