(영문) 대전고등법원 2011. 7. 21. 선고 2010누2874 판결

1. Of the judgment of the court of first instance, the part of the defendant's claim for nullification of the disposition on the establishment, alteration authorization, and the part of the claim for revocation concerning the establishment, alteration authorization, establishment, and alteration authorization of the Housing Redevelopment and Improvement Project Association, and all of the plaintiff's lawsuits corresponding to the part

2. The plaintiff's remaining appeal is dismissed.

3. Of the total litigation costs, the part pertaining to the participation by the Plaintiff’s Intervenor shall be borne by the Intervenor, and the remainder shall be borne by the Plaintiff.

Purport of claim and appeal

The judgment of the first instance court is revoked. In the first instance court, it is confirmed that the defendant's disposition on July 31, 2006 against the defendant's assistant intervenor is all null and void. In the first instance, the defendant's disposition on the approval of the establishment of the Housing Redevelopment Association in the Daeung-gu 1 District and on June 5, 2007 against the defendant's assistant intervenor, and the disposition on the approval of the establishment of the Housing Redevelopment Association in the Han-gu 1 District as of July 31, 2006 and the disposition on the authorization of the establishment of the partnership on June 5,

Reasons

1. Details of the disposition;

A. Status of the parties

The Plaintiff and the Intervenor joining the Plaintiff are the owners of the land or buildings (hereinafter referred to as “instant land, etc.”) located within 61,761m of square meters (hereinafter referred to as “instant area”) of the land located in the Jung-gu Daejeon-dong, Daejeon-dong, Daejeon-gu, Daejeon-do, and the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor Cooperative”) is an association for the purpose of implementing the housing redevelopment project in the instant area.

(b) Approval of establishment promotion committee;

On March 31, 2004, the Committee for Promotion of the Establishment of Housing Redevelopment Improvement Project (hereinafter referred to as the “Promotion Committee”) composed of Nonparty 1 as the head of the association, filed an application with the Defendant for approval for establishment of the Promotion Committee, and the Defendant approved the establishment of the Promotion Committee on May 18, 2004.

① On April 23, 2005, an intervenor partnership held an inaugural general meeting and resolved the agenda presented by the promotion committee, such as articles of association, a draft project plan, and a consent to implement the project. Nonparty 1, the representative of the promotion committee, was the representative of the intervenor partnership, and filed an application for authorization to establish a district housing redevelopment project partnership with the Defendant on May 2, 2006 under the name of the intervenor partnership.

② As a result of the examination on the above application, the Defendant confirmed that the number of legitimate owners of lands, etc. in the instant area was 307, and 248 of them were consented (80.78%). On July 31, 2006, on the part of the Intervenor Association, the Defendant approved on July 31, 2006, the Intervenor Association established the Housing Redevelopment and Improvement Association for the Housing Redevelopment and Development Project for the Housing Redevelopment and Development Project (hereinafter “instant authorization disposition”).

(d) Approval and announcement of the project execution plan;

On October 18, 2006, an intervenor union submitted to the defendant a written project implementation plan with a consent of more than a majority of landowners including land in accordance with the articles of association and applied for the approval of the project implementation plan. The defendant approved and announced the project implementation plan on December 28, 2006.

(e) Revision of establishment;

① Upon the occurrence of additional association members due to changes in ownership, etc. and the written consent on establishing an association from the owners of land, etc. in the instant area, the Intervenor Union added 2,3,4, and 14 participants in the Plaintiff’s supplementary lawsuit to the number of owners of land, etc. in the instant area on April 2, 2007, and added 15 persons, including Nonparty 5, 2, 3, 4, 6, 7, 8, 9, 10, and 11 to the number of consenters in the establishment of the association, and filed an application for authorization for modification by submitting additional written consent documents and other related documents.

② On June 5, 2007, the Defendant added the above four persons to the number of owners of lands, etc. at the time of the disposition of the authorization for the establishment of the instant case, and added three of the aforementioned 15 persons to the number of consenters (excluding Nonparty 9, 10 who purchased land, etc. from the existing consenters and became a new owner, and Nonparty 11 whose certificate of personal seal impression is different), and subsequently, the number of legitimate owners of lands, etc. within the instant area is 311 persons (=307 + 4 persons). The consenters verified that 260 persons among them were 260 persons (248 + 12 persons) and confirmed that the consent ratio was 83.6%, and made a disposition of the modification of the Housing Redevelopment and Improvement Project Association for Housing Redevelopment (hereinafter “instant authorization”).

(f) Authorization and announcement of management and disposal plans;

On June 29, 2007, the Intervenor Union held a general meeting of the management and disposition and resolved a management and disposition plan. On October 17, 2007, the Intervenor Union applied for authorization of the management and disposition plan to the Defendant. The Defendant approved and announced it on March 28, 2008.

[Grounds for Recognition: Facts without dispute; Eul's statements in Gap's Evidence Nos. 1, 2, 4, 5, 8, 24 through 41; Eul's Evidence Nos. 5, 9 through 12, 14, 16, 18 (including each number); the purport of the whole pleadings and arguments]

2. Determination on the legitimacy of the instant lawsuit

A. On the ground that the effect of the supplementary act cannot be asserted

1) The defendant and the intervenor's association's assertion

① The instant disposition of authorization for establishment and the disposition of authorization for modification made by the Defendant against the Intervenor Cooperative is merely a supplement to the completion of the legal effect of the establishment of the redevelopment partnership by supplementing the acts of establishment of the redevelopment partnership, and if there is a defect in the establishment itself, the act of establishment of the partnership, which is a basic act, is not effective even if there is authorization. Thus, in a case where there is a defect in the establishment of the partnership, which is a basic act, there is no legal interest to seek the cancellation or invalidity confirmation of the authorization disposition for the reason of the defect in the basic act.

② Therefore, the instant lawsuit is unlawful as there is no legal interest in filing a lawsuit, seeking the invalidity or revocation of the authorization disposition on the grounds of defects in the basic act.

2) Determination

(1) When the committee for promotion of housing redevelopment projects and urban environment rearrangement projects intends to establish an association, it shall be established as a corporation by registering with the authorization of the head of a Si/Gun with the consent of at least 4/5 of the owners of land, etc. attached with the articles of association and the documents prescribed by the Ordinance of the Ministry of Construction and Transportation (Articles 16 (1) and (5), and 18 of the former Urban Improvement Act (amended by Act No. 7960, May 24, 2006). Furthermore, under the supervision of the competent administrative agency, the redevelopment association established through the above procedures has the status as an administrative agent performing certain administrative actions within the scope of the purpose of implementing housing redevelopment projects under

② Therefore, an administrative agency’s disposition of authorization to establish a redevelopment association based on relevant laws, such as the Act on the Maintenance of Urban Areas and Dwelling Conditions, does not merely have the nature as a supplementary act of private persons’ establishment, but also has the nature of a sort of right disposition that gives the redevelopment association the status as an administrative agent with authority to implement a housing redevelopment project under the Act on the Maintenance of Urban Areas and Dwelling Conditions (see Supreme Court Decision 2008Da60568, Sept. 24, 2009). In order to deny the validity of an redevelopment association establishment establishment due to defects in the consent of the establishment after the administrative agency’s disposition of authorization to establish a partnership and the disposition of authorization to alter the establishment, an appeal litigation should be filed to deny the validity of the disposition of authorization to establish a partnership and the disposition of authorization

B. Whether the lawsuit on the modification disposition of this case is legitimate

1) Nature of the modified disposition of this case

According to the above, the instant authorization disposition, which was made upon the Intervenor’s application for the authorization of modification after the authorization of establishment of this case, is based on the fact that the rights of association members were transferred or the additional written consent was submitted due to the sale and purchase of land, building, etc., and the number of consenters is changed. As such, the administrative agency rendered a disposition in the form of the authorization of modification of establishment of association with respect to the modification of insignificant matters as provided by Article 27 subparag. 2 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for which the same requirements and procedures as the authorization of establishment are not required

2) Ex officio determination as to the lawfulness of a lawsuit

① In light of the above legal principles, the establishment authorization disposition of this case, which is an authoritative disposition, cannot be deemed as absorption of the modification authorization disposition of this case, as it is determined by the court of first instance. Therefore, even if the modification authorization of this case was made, legal interest still exists to seek nullification or cancellation

② On the other hand, the instant modified disposition is merely the meaning of accepting a report on modification of minor matters as seen above, and thus cannot be deemed as a “disposition” subject to an appeal litigation. In addition, as long as there is an dispute over the validity of the instant authorized establishment disposition, which is the premise thereof, there is no legal interest to seek nullification or revocation of the instant authorized establishment disposition

③ Therefore, the part seeking nullification or revocation of the authorization for modification of this case is unlawful.

C. As to the defense of safety, there is no interest in litigation to dispute the validity of the establishment authorization disposition of this case due to the additional modification approval disposition

1) The defendant and the intervenor's association's assertion

① Following the Intervenor’s application for the authorization of modification, the Defendant: (a) confirmed that the ratio of consent was 94.29% upon receipt of a written consent from 165 members of the 175 association pursuant to the requirements and procedures under the Urban Improvement Act; and (b) issued a disposition for the authorization of modification to the Intervenor’s association on May 12, 2011 (hereinafter “the second disposition for authorization of modification”).

② Since the second modification disposition of the instant case is not a meaning of accepting a report of insignificant matters, but a disposition by obtaining a new consent from 165 members, the instant establishment authorization disposition is unlawful as there is no interest in litigation due to its absorption of the second modification disposition of the instant case.

2) Determination

(1) Where an authorization for the establishment of an association is issued according to the same requirements and procedures as the authorization for the establishment of an association, the authorization for the establishment of an association shall have the effect of changing the original authorization, but the remaining part excluding the changed part from the original authorization for the establishment of an association is effective. Thus, the initial authorization for the establishment

② Furthermore, even though most of the initial authorization disposition was modified due to the authorization of modification, since a series of procedures and dispositions according to the relevant rearrangement project, such as the formulation and authorization of a project implementation plan, the establishment and authorization of a management and disposal plan, and land expropriation, are conducted on the premise that the authorization of modification disposition is valid after the authorization of establishment, and thus, if the said disposition is revoked or invalidated, the legal effect on such subsequent procedures and dispositions on the premise is affected (see Supreme Court Decision 2003Du5402, 5419, Sept. 9, 2005). Therefore, legal interest in seeking confirmation or cancellation of the authorization of establishment disposition shall not be deemed extinguished.

③ Therefore, even if the secondary authorization disposition of this case was issued, the establishment authorization of this case cannot be entirely absorbed, and the legal interest to seek nullification or revocation thereof is recognized. Thus, the above main safety objection is without merit.

3. Whether the owners of land, etc. meet requirements for consent when granting authorization for establishment;

A. The plaintiff's assertion

The Defendant calculated the number of owners of the instant land, etc. and the number of consenters at the time of the instant authorization for establishment, on the ground that the consent ratio does not exceed 4/5 of the owners of the instant land, etc. required by the relevant laws and regulations on the ground that the pertinent corresponding part of the “Plaintiff’s assertion” did not exceed 4/5 of the owners of the instant land, etc., and issued the authorization for establishment of the instant case. Since the error regarding the calculation of the number of consenters was significant and clear, the Defendant primarily sought nullification

(b) Related statutes;

Attached Table 1 is as stated in the relevant Acts and subordinate statutes.

C. Whether to compute the number of owners of land, etc.

1) Whether the owners of land in the instant area were omitted

A) The plaintiff's assertion

Nonparty 17, 18, 19, 20, 21, and 22 (joint ownership with Nonparty 23) committed an omission in the ownership of land, etc. within the instant area.

B) Determination

According to the evidence No. 24-1 to 10, it is recognized that the non-party 17, 18, 19, 20, 21, 22 is the owner of the land or building in the area of this case. Meanwhile, according to the evidence No. 6, the non-party 17 borrowed money from the Mutual Savings and Finance Company on December 15, 1992 as collateral for the building, the non-party 2, the bankruptcy trustee of the Daejeon District Court on June 4, 2002, and the non-party 24, the non-party 1, the non-party 2, the non-party 1, the non-party 2, the non-party 1, the land lot number of which was awarded on April 3, 200, and the non-party 1, the non-party 2, the non-party 17, the non-party 2, the land lot number of which was not the owner of the building and the non-party 2, the non-party 4, the land register.

Therefore, the plaintiff's above assertion is without merit.

2) Whether the owner of the land and the ground building omitted the owner of the building

A) The plaintiff's assertion

Since the non-party 11 owns a square plan of 33 meters large (number 5 omitted) and the above ground buildings are transferred only to the non-party 25, the owner of the above ground building is still the non-party 11, but the non-party 11 is excluded from the calculation of the owner of the land, etc.

B) Determination

Comprehensively taking account of the overall purport of the pleadings as to the statements No. 31-1 through 4, No. 24, No. 10-1 through No. 24, and No. 10-5, and the testimony of Non-Party 26 of the first instance trial, Non-Party 11 owned the above ground building without permission even after the above site was awarded to Non-Party 25 by compulsory auction on October 13, 2000. The Intervenor Union submitted supplementary data according to the application for authorization of establishment of this case stating that the number of the original owners of the land, etc. was 306 persons on July 19, 2006, but the total owners may be changed to 307 persons due to non-existence of the above building ownership relationship (the evidence No. 10-5, No. 853 pages), and the Defendant considered Non-Party 11 as the total number of owners of the land, etc. including the non-party 307 persons, and reported it to the non-party 175.

(d) Whether the number of owners of land, etc. and consenters is defective;

(i) Where one household owns two or more land or buildings;

A) The plaintiff's assertion

① Nonparty 27 and Nonparty 28, Nonparty 29 and Nonparty 30, Nonparty 31 and Nonparty 32, Nonparty 33 and Nonparty 34, and Nonparty 35 and Nonparty 3 are unlawful in violation of the articles of association, even though they are entitled to exercise their right of consent per household pursuant to Article 9(3) of the Intervenor Association’s Articles of association as a member of each same household.

B) Determination

(1) First, according to the statement and image of evidence Nos. 56, 59-3, 4, 8-1, 2, 2, 53-1 through 3, 54-1, 54-5, 1, 13-2, and 11 of evidence Nos. 56, 59-3, 24, 53-1 through 5, and 11, Nonparty 28 owns a lot of land in the area of this case, but Nonparty 28 alone owns a lot of land within the area of this case, but Nonparty 28 was not a land within the area of this case, and Nonparty 27 was selected as a representative owner in co-ownership of building Nos. 218, 277, 205.

Therefore, the plaintiff's assertion on the premise that the non-party 28 exercised the right of consent as the owner of land is without merit.

(2) In addition, Article 9(3) of the Association’s articles of association provides that the non-party 3 owns not less than 2 land or buildings or superficies of the same person, regardless of the number thereof, the non-party 3 owned the non-party 1’s land and the non-party 2’s right to the land and the non-party 3’s land number of the non-party 1’s land and the non-party 4’s land number of the non-party 2’s land and the non-party 3’s land number of the non-party 3’s land and the non-party 2’s land number of the non-party 3’s land and the non-party 4’s land number of the non-party 2’s land and the non-party 3’s land number of the non-party 3’s land and the non-party 2’s land number of the non-party 3’s land and the non-party 3’s land number of the building were omitted.

(1) However, Article 17 of the former Act and Article 28 of the Enforcement Decree of the same Act provide for the method of calculating the number of consenters of the owners of land, etc., on the contrary that Article 19(1) of the former Act provides for the qualification of association members, which separates the owners of land, etc. and association members. ② The owners of land and structures located in the rearrangement zone have the status of association members before the association is established. After the association is established, the owners of land and structures have the status of association members. Since they have rights and obligations different from those of the owners of land, etc., and thus are not necessarily consistent with the owners of land, etc., the participant association’s articles of association provide that “if one household owns two or more land or buildings, it shall be deemed one association member regardless of the number thereof.” It is difficult to view that the said provision should be applied to calculating the number of consenters of the owners

Therefore, the non-party 31 and the non-party 32 married, the non-party 29 and the non-party 30 married, the non-party 33 and the non-party 34 married, and the non-party 35 and the non-party 3 married, may exercise their right to consent in accordance with the relevant laws and regulations (it cannot be viewed differently because the non-party 1 shares are extremely low). Thus, the plaintiff's assertion on this part is without merit (the plaintiff asserts that the non-party 36 and the non-party 37 are entitled to exercise their right to consent on the premise that the non-party 36 and the non-party 37 are one household, but there is no evidence to acknowledge that the non-party 36 and the non-party 37 are one household, and the whole purport of the statement in the certificate of evidence No. 41 and the argument after the document verification by the court of this case is that the non-party 36 is the owner of the road 2m2 within the area of this case, and the non-party 137.

2) Where the same person shares several parcels of land or buildings;

A) The plaintiff's assertion

Since Nonparty 38 and Nonparty 39 shared the land located in the area of this case (number 1 omitted) and the land located in the building and the building and the building located in the area of this case (number 15 omitted), it is unlawful to treat them as one consenters even though they are treated as one consenters.

B) Determination

(1) In light of the contents and structure of relevant laws and regulations, such as Article 2 subparag. 9, Article 17, Article 28(1) of the Enforcement Decree of the Act on the Improvement of Urban Areas and Dwelling Conditions, the owner of land or a building, and Article 28(1) of the Enforcement Decree of the Act on the Maintenance of Urban Areas and Dwelling Conditions shall be calculated by one person for each real estate if the owners of land or a building are different. If the same co-owner jointly owns a different parcel of land or a building, only one of the co-owners shall be calculated as the owner of land, regardless of the number of real estate (see Supreme Court Decision 2009Du15852, Jan. 14, 2010).

(2) Nonparty 38 and Nonparty 39 shared the land located in the area of this case and its ground buildings and each of the land located in the area of this case (number 15 omitted); Nonparty 38 was the representative of the land and the ground buildings located in the area of this case (number 1 omitted); Nonparty 39 was the representative of the land located in the area of this case; and Nonparty 39 was the representative of the land located in the area of Daeungdong-dong (number 15 omitted); and submitted a written consent. The Defendant calculated the number of the owners of land, etc. and the number of consenters at the time of the instant authorization disposition of this case as to the establishment of this case as two persons, either there is no dispute between the parties, or it may be recognized in accordance with the statement in the evidence 14-1 through

(3) According to the above facts, since Nonparty 38 and 39, who is the same co-owner, jointly own different land and buildings, only one person must be calculated as the owner of the land, etc. However, in this case, the Defendant calculated the number of the owners of the land, etc. and the number of consenters, and was unlawful. Accordingly, the Plaintiff’s allegation in this part is with merit (reduction of one owner of the land, etc. and one consenters)

E. Whether the calculation of the number of consenters is defective

1) If the land owner and the superficiary are different;

A) The plaintiff's assertion

Since the 202m square meters wide (number 16 omitted) in the area of this case is subject to superficies under the name of Han Bank on the ownership of Nonparty 40 or the above land, it is unlawful to calculate the non-party 40 to the consent of the non-party 40 due to the lack of procedures for selecting a representative from among the owners and persons with superficies.

B) Determination

According to the evidence Nos. 4-2, 10, 24 of the evidence Nos. 4-2, 4-2, 10, and 24, the defendant is found to have issued a disposition to grant the establishment of this case except for the non-party 40 with the consent of the non-party 40 on the ground that there is no representative selection procedure between the non-party 40 and the Han Bank

2) Whether the representative was not selected for co-owned real estate

A) The plaintiff's assertion

The non-party 41, along with the non-party 42, is the co-owner of the land of the rootdong (number 17 omitted) to 245 meters in the instant area, and the non-party 7, along with the non-party 43, is the co-owner of the land of the rootdong (number 18 omitted) to 119 meters. Thus, the non-party 41 and the non-party 7 should be excluded from the number of consenters.

B) Determination

In full view of the purport of the entire argument in the testimony of the non-party 26 witness at the court of first instance, the defendant calculated the number of consenters except the non-party 41 and the non-party 7 in the consenters. Thus, this part of the plaintiff's assertion that the defendant calculated the non-party 41 and the non-party 7 in the number of consenters is without merit.

3) In the case of submitting written consent to establish an association under the name of the agent

A) The plaintiff's assertion

The owner of the building site and building in the instant area (number 19 omitted) is Nonparty 44, and the written consent for the establishment of the association is submitted in the name of Nonparty 45 who is not qualified as an agent under Article 10(2) of the Intervenor’s Articles of Incorporation. Thus, the written consent of Nonparty 45 is invalid in violation of the above Articles of Incorporation, and Nonparty 45 must be excluded from the consenters.

B) Determination

(1) According to the evidence No. 41, Article 10(2) of the Articles of the Intervenor Association provides that “A shall, in principle, recognize the exercise of a partner’s authority, and exceptionally, allow the submission of delegation by proxy among the spouse, lineal ascendants and descendants, and siblings who are not entitled to exercise a partner’s authority, or a proxy is designated by a foreign resident, to exercise a member’s authority by proxy.”

(2) However, the above provision is not applicable to the exercise of the right of consent held in the position of the owner of the land, etc. before the establishment of the association, as a provision on the exercise of power as proxy after the association was established. The above provision is not applicable to the exercise of the right of consent held in the position of the owner of the land, etc. The above provision is deemed to be also applicable to the non-party 4. The non-party 4 and the non-party 45 who submitted the letter of consent to the establishment of the association to the non-party 4 as an agent of the non-party 4 and the non-party 4, who were the non-party 4 and the non-party 4, who were the non-party 4 and the non-party 4, who were the non-party 4 and the non-party 4, who were the non-party 4 and the non-party 4, who were the non-party 4 and the non-party 4, who were the non-party 5 and the non-party 4, who were subject to the consent.

(3) Therefore, it is legitimate that the Defendant included Nonparty 44 in the consenters, and this part of the Plaintiff’s assertion is without merit.

4) In the case of written consent to establish an association before approval for establishment

A) The plaintiff's assertion

The written consent for the establishment of an association shall contain essential descriptions to its members, including those specified in each subparagraph of Article 26(1) of the former Enforcement Decree of the Act on the Maintenance of Urban Areas and Dwelling Conditions for Residents. Therefore, the consent for the establishment of an association or the written consent shall be prepared only after the approval for the establishment of a committee of promoters. Among the written consent submitted to the intervenor association or the defendant, the written consent of Nonparty 47 and the written consent of the 32 persons stated in the attached list of persons prior to the establishment of a committee of promoters is written prior to that date. The written consent of the 82th National Assembly for the Promotion of the Promotion of the Promotion of the Promotion of the Promotion of the Promotion of the Promotion of the Promotion of Residents and the 82th National Assembly other than the Pacific National Foundation, which is the foundation, shall be deemed written prior to the approval for the establishment of a committee of promoters

B) Determination

(1) As to the point at which Nonparty 47 submitted written consent for the establishment of the association

According to Gap or evidence 85-1, it is stated that the written consent of non-party 47 was made on May 6, 2004, before May 18, 2004, which is the date of approval for the establishment of a committee of promoters. However, considering the overall purport of arguments in Eul or Eul-2 and the testimony of non-party 47 of the witness witness of the trial, the intervenor union prepared the first written consent form and the second written consent form, including the first written consent form and the second written consent form, and the second written consent form and the second written consent form and the second written consent form are essential to recognize that the plaintiff's new consent form and the second written consent form were all prepared and submitted. The plaintiff's new consent form and the second written consent form are not essential to recognize that the first written consent form and the second written consent form were prepared and submitted.

(2) As to the point at which the above 32 persons and the non-party 48, the foundation foundation, submitted a written consent to establish the association of the 82th Symar Scholarship Project Association

Article 63 through 94, Gap or Eul's 12, 19, 46, 50, 76, Eul's 52, Eul's 85 through 119, Eul's 15 (including each number), testimony of Non-party 49 and non-party 47, 50, and 51 of the witness of the first instance trial and the result of examination of documents by the court. In full view of the following facts: ① The intervenor's association submitted to the existing 5th day of August 25, 2004 "No summary of new building and estimated expenses are stated in the consent form for the establishment of the association." Since the 5th day of "No. 20th day of the establishment of the 5th day of the 4th day of the 5th day of the 5th day of the establishment, the 2th day of the 5th day of the 5th day of the establishment of the Foundation" and the remaining part of the 2th day of the 2th day of the establishment of the 32nd day of the Foundation.

5) In the case of written consent for the establishment without signature:

A) The plaintiff's assertion

The written consent of the Plaintiff Intervenor 30 is affixed only to the written consent of the establishment of the association, and there is no signature, and it has no validity as a written consent.

B) Determination

According to the statement No. 66-1, the plaintiff supplementary intervenor 30 stated the name, resident registration number, address, telephone number, etc. in the "personal information of the owner of housing" column of the front upper top of the consent to establish an association printed on both sides. However, although it is recognized that the plaintiff supplementary intervenor affixed only the seal imprint without signing on the "oper" column at the lower bottom of the back side, it is recognized that the above recognized evidence and the evidence No. 66-2, No. 19-1, No. 76-1, and No. 2 are integrated into the whole purport of the pleadings. In other words, the plaintiff supplementary intervenor 30 submitted a certificate of personal seal consistent with the seal imprint affixed thereto in submitting the above consent, and the "use" column is stated as the "use for the consent to establish a housing redevelopment association for Daeung-1," the plaintiff supplementary intervenor 30 did not sign on the "oper column" column, the plaintiff's assertion that the plaintiff supplementary intervenor submitted the original consent to establish an association is without merit.

6) Where personal information is different;

A) The plaintiff's assertion

Inasmuch as Nonparty 37’s signature in the name of Nonparty 37 and Nonparty 53’s signature in the written consent to establish the association, which is the owner of the building in the instant area (number 14 omitted), the said written consent is invalid.

B) Determination

According to the statement No. 57-1 of evidence No. 57, although the name, resident registration number, address, etc. of the owner of the house at the front top of the consent to establish the association printed on both sides of the non-party 37 entered in the "personal information of the owner of the house" column of the front top of the consent to establish the association, the "co-owner" column at the lower bottom of the back side is recognized as having written the signature of "non-party 53". Meanwhile, in full view of the above recognized evidence, Eul evidence No. 4-2, Eul No. 24, and Eul No. 57-2, the whole purport of the oral argument is as follows: non-party 37 submitted a certificate of personal seal impression issued on May 31, 2005 to the non-party 37's name and seal impression affixed to the non-party 57's name and seal affixed to the non-party 37's name and seal affixed to the non-party 37's name.

7) Whether the seal imprint is forged

A) The plaintiff's assertion

Inasmuch as the seal on the written consent of Nonparty 54, the owner of the building site and each of the ground buildings within the instant area, is not the one affixed by the principal, but the third party was forged by moving by leaving another place’s seal, it shall not be deemed that the genuine consent was made.

B) Determination

In full view of the statement No. 63 (including paper numbers) and the purport of the entire argument in this court’s result of document verification, it is recognized that Nonparty 54’s signature and seal are similar to that of the seal imprint certificate, and there is no evidence to acknowledge that Nonparty 54’s seal imprint was forged, such as the Plaintiff’s assertion, this part of the Plaintiff’s assertion is without merit.

8) In the case of the Korean Civil Association, the Korean Civil Association ○○○ church

A) The plaintiff's assertion

Since the land and buildings in the instant area (number 22 omitted), (number 23 omitted), (number 23 omitted), are collectively owned by the Korean Association of the Korean Association of the Korean Association, it is necessary to express his/her intention to consent by a resolution of the general meeting. Since the above church did not go through such procedures, the above church shall be excluded from calculating the number of consenters.

B) Determination

According to the statement of the evidence Nos. 75-1 through 3, it is recognized that the letter of consent on the land and building (number 22 omitted), the letter of consent on the land and building (number 23 omitted), the seal of the ○○○○○○ church is affixed, and the certificate of the seal impression is attached thereto. When the defendant approves the establishment of the association, it is necessary to examine whether a legitimate letter of consent attached to the certificate of the seal impression has been submitted, and it is not necessary to examine whether the above church passed a resolution of the general meeting. Thus, the plaintiff must prove that the above church consented without the resolution of the general meeting, and since there is no evidence to prove this point, this part of the plaintiff's assertion is without merit.

9) In the case of non-entry of the requisite description of the written consent

A) The plaintiff's assertion

The consent of the co-Plaintiffs in the first instance trial is unlawful since the necessary entry required by each subparagraph of Article 26(1) of the former Enforcement Decree of the Act is not stated in the consent of the non-party 5, 8, 10, 14, 13, and 55.

B) Determination

(1) According to Article 26(1) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions, the consent of the owner of land, etc. is stipulated as “the consent shall be obtained by the method of obtaining the consent, which states the outline of the design of the building to be constructed, a summary of the cost required

(2) According to the statement No. 29-1, 3, 5, 7, A, or 1-1 of the evidence No. 29-1, it is recognized that each written consent of the six above co-Plaintiffs 5, 8, 10, 14, 13, and 55 of the first instance court has not been written the outline of the design of the building to be constructed and the estimated amount of the cost required for the removal and construction of the building.

(3) Meanwhile, according to the evidence Nos. 4-2, 27-1, 2, 21, 52 evidence Nos. 4-2, 27-2, Eul, and 52, the owner of the land in the area of this case, "non-party 13 (the non-party 25th of October 1949)" and "non-party 13 (the non-party 26th of October 1949) owner of the same land as "non-party 12 (the non-party 17-2, 174th of the evidence No. 4-2, 174)" and the non-party 12's written consent (the non-party 17-1, 26th of the year 1938 as at the time of the establishment approval disposition of this case, the non-party 12 was treated as the non-party 1's non-party 1's new construction of the building (the non-party 1's written consent).

(4) Therefore, this part of the Plaintiff’s assertion is with merit only to the remainder of the non-party 13, and thus, the non-party 5, 8, 10, 14, and 55 of the first instance trial should be excluded from the consenters (the number of consenters is reduced by five).

10) Whether the certificate of seal imprint was defective

A) The plaintiff's assertion

The written consent of △△ Book is not accompanied by the certificate of the personal seal impression, and the use of the certificate of the personal seal impression attached to the written consent of the Plaintiff Intervenor 42, 43, 56, 57, 58, 59, the Plaintiff Intervenor 40, Nonparty 60, and 61 was different, or omitted or modified, and the date of issuance was 5). Since the written consent of the Plaintiff’s △ Book is not indicated, or the date of issuance was around 2001, it cannot be said that the written consent of the Plaintiff’s △ Book accompanied with the said certificate of the personal seal impression is guaranteed, they should

B) Determination

(1) First, according to the statement No. 13-2 by Eul, it can be recognized that the consent letter submitted by △△ Book is accompanied by a certificate of personal seal impression. Thus, this part of the plaintiff's assertion is without merit.

(2) In addition, according to the evidence Nos. 29-11, 13, 15, 17, 20, 20, 36, 71-2, 71-2, 15, 15 through 18, and 17-2, 56, the certificate of the personal seal impression Nos. 17-2, and 17-2, and 56, A were modified as “for the establishment of an association” under the following circumstances: (1) the certificate of the personal seal impression Nos. 42, and 43 was amended as “for the Plaintiff’s Intervenor’s 42, and 43 to include “area designation” in each column; (2) the certificate of the personal seal impression Nos. 56 was amended as “for the appointment of a representative owner or for the consent of the establishment of an association; (3) the use column for the certificate of the personal seal impression No. 57 is for the establishment of an association; (59) the use column of the Plaintiff’s 40 is for redevelopment 160.

① However, Article 28(4) of the former Enforcement Decree of the Act provides that “A consent (including withdrawal of consent) of the owner of a plot of land, etc. shall be made by means of a written consent using a certificate of seal impression when applying for authorization to establish an association.” Article 7(1)3 of the former Enforcement Rule of the Act provides that “documents proving consent to establish an association of the owner of land, etc. and consent matters” shall be attached to documents to be submitted when applying for authorization to establish an association. As such, Article 7(1)3 of the former Enforcement Rule of the Act provides that “a document proving consent matters shall be attached to the owner of a plot of land, etc.” (Article 28(4) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for the purpose of clarifying consent by means of verifying whether the seal imprint affixed on the written consent is consistent with the seal imprint’s certificate.” (2) In light of the current Act and its Enforcement Decree do not impose restrictions on the validity of the certificate of seal impression, and there is no need to state any use other than the real estate sale.

Therefore, this part of the plaintiff's assertion is without merit.

11) Where a written consent submits a different certificate of seal impression;

A) The plaintiff's assertion

Since the stamp image affixed on Nonparty 81’s written consent is different from that affixed on the certificate of personal seal impression, such consent is unlawful.

B) Determination

According to the statement Nos. 73-1, 2, and 16-1 of the certificate No. 73-1, the defendant demanded supplementation when the non-party 81's seal impression originally submitted was found to be different from the seal impression on the certificate of the personal seal impression. Thus, it can be recognized that the non-party 81 again submitted a written consent with the certificate of the personal seal impression affixed. Thus, this part of the plaintiff's assertion is without merit.

12) In the case of revocation of consent:

A) The plaintiff's assertion

Although owners of land, etc. stated in the attached list of persons withdrawing consent withdraw from the consent to establish an intervenor association, the Defendant’s failure to exclude the aforementioned withdrawing persons from the number of consenters is unlawful.

B) Determination

(1) Article 28(1)5 of the former Enforcement Decree of the Urban Improvement Act provides, “The person who withdraws consent prior to the application for approval by the Promotion Committee or prior to the application for authorization for the establishment of an association shall be excluded from the number of consenters of the owner of the land, etc.” Provided, That where there is no change in the details of the design of the building to be constructed on January 1, 200, the outline of the cost required for removal and new construction of the building, 3. 2, the allocation of expenses under Article 26(1) of the former Enforcement Decree of the Urban Improvement Act, 4. Matters concerning the attribution of ownership after completion of the project, 5. Articles of association) shall not be excluded from the number of consenters for the authorization for the

The purport of the above provision is to prevent the implementation of a rearrangement project without any change in the important matters of the rearrangement project at the time of applying for authorization to establish an association, thereby preventing economic loss therefrom, and ensure stability in the implementation of the project. Even if the owners of land, etc. withdraw their consent by meeting the requirements for withdrawal of consent to establish an association before applying for authorization to establish an association, if there is no change in the above important matters, the person withdrawing consent shall not be excluded from the number of consenters for authorization to establish an association. In particular, if it is possible to withdraw consent due to a change in the matters concerning the "articles of association" under Article 26 (1) 5 of the Enforcement Decree of the above Act, it shall be deemed that the owners of land, etc. in the articles of association of the association are changed necessary matters to determine whether to participate in

(2) In full view of the arguments stated in the evidence Nos. 3-1, 2, 8, and 4-1, 2, and 5-1, 6, 7-7, 8-1, 2, 4, 9, and 10-1, 2, 4, 9, and 25-19 through 31, 43 of the evidence Nos. 1, 2, 25, and 7, and the whole purport of the arguments stated in the evidence Nos. 1, 31, 43, and 7, Nonparty 62 who consented to the establishment of the Intervenor Association, around March 30, 206, the Plaintiff’s Intervenor 1, around March 24, 2006, around March 9, 2006, the Plaintiff’s Intervenor’s 34,18, and at least 63, and 64, before the amendment of the relevant Act and subordinate statutes, the amendment of the Association’s articles of incorporation was made.

According to the above facts of recognition, insofar as the Intervenor 34, 18, 63, and 64 has withdrawn consent prior to the amendment of the articles of association of the association, it cannot be excluded from the number of consenters. Moreover, it is difficult to view the amendment of the articles of association of the association as being necessary for the decision of whether to participate in the redevelopment project. Thus, even if Nonparty 62 and the Intervenor 1 withdrawn consent after the amendment of the articles of association of the association, it cannot be excluded from the number of consenters. Thus, this part of the Plaintiff’s assertion is without merit.

(3) As to this, the Plaintiff asserted that the withdrawal of consent by the Plaintiff Intervenor 34 and 18 shall be excluded from the number of consenters for the authorization of this case since the amendment date of the above articles of association was made after March 10, 2006, considering that the post office sender 34 and 18 reached the Intervenor’s association after March 10, 2006, the amendment date of the above articles of association, and thus, the withdrawal of consent by the Plaintiff Intervenor 34 and 18 shall also be excluded from the number of consenters for the authorization of this case since the amendment date of the above articles of association. However, there is insufficient evidence to acknowledge that the Plaintiff’s declaration of withdrawal of consent by the Plaintiff Intervenor 34 and 18 was reached after March 10, 206, and there is no other evidence to support this part of the Plaintiff’s assertion.

(4) In addition, the plaintiff asserts that the articles of incorporation of the intervenor association should be excluded from the number of consenterss of 34,18, 63, and 64 who have withdrawn consent after being amended on April 23, 2005. Thus, in full view of the evidence stated in the above paragraphs (2) and (3) above and evidence Nos. 13-1 through 6, the 34 et al. of the plaintiff assistant intervenor 34 et al. consented to the establishment of the association, but the 34, 18 of the plaintiff assistant intervenor 34 et al. of the plaintiff assistant intervenor 34 and 63, and 64 et al. of the 2006 were revoked prior to August 12, 2005. On the other hand, the intervenor association established the articles of incorporation of the association while holding an inaugural general meeting on April 23, 2005. Thus, the plaintiff's consent cannot be asserted after the amendment of the articles of incorporation of the association.

(5) The plaintiff asserts that since the plaintiff's intervenor 34, 18, and 64 cancel the consent of the establishment of the association or the non-party 65 cancel the consent of the establishment of the association by the non-party 65 et al., they should be excluded from the number of consenters. However, according to Article 28 (1) 5 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions, only the person who withdraws consent prior to the application of the authorization is excluded from the number of consenters. In full view of the purport of each statement of evidence No. 96, evidence No. 96, evidence No. 21, and evidence No. 21 through 82 (including each number), the above withdrawal person alleged by the plaintiff can be acknowledged that the plaintiff withdrawn the consent of the intervenor of the association after May 2, 2006, all of which were the date of the application for the authorization of the establishment of the association. Thus,

13) As to the assertion of unfair legal act

A) The plaintiff's assertion

[Attachment 32] 34, 18, 63, and 64, etc., who have withdrawn the prior consent later, agreed by the Intervenor’s deception and coercion of the Intervenor’s Intervenor who promoted the redevelopment project without proper knowledge of the contents of the redevelopment project, or by deception and coercion of the Intervenor’s Intervenor who promoted the redevelopment project. This constitutes an unfair legal act under Article 104 of the Civil Act and thus null and void.

B) Determination

The Plaintiff’s assertion 19-1 and 2 alone is insufficient to acknowledge the Plaintiff’s above assertion, and there is no other evidence to acknowledge it, and this part of the Plaintiff’s assertion is without merit.

F. Judgment on the assertion of the intervenor association raised in the trial after remanding

1) As to the assertion that the number of consenters should be added

A) The intervenor union's assertion

The consent of Nonparty 41, 2, 66, 3, 7, 7, 5, 67, and 60 is valid, and the six persons must be added to the number of consenters.

B) Determination

(1) As to the consent of Nonparty 41

(1) In light of the details of relevant Acts and subordinate statutes, such as Article 2 subparag. 9 and Article 17 of the Act, Article 28(1) of the Enforcement Decree of the Act on the Improvement of Urban Areas and Dwelling Conditions, and Article 28(1) of the Enforcement Decree of the Act on the Maintenance of Urban Areas and Dwelling Conditions, where the owners of land or buildings and co-owners are different, one person per real estate shall be calculated as the owners of land or buildings (see Supreme Court Decision 2009Du15852, Jan.

② Comprehensively taking account of the written evidence Nos. 41-1, 2, 3, and 31-1, 2, and 31-2, and Nonparty 26’s testimony at the court of first instance, Nonparty 41 may recognize the fact that Nonparty 41 was excluded from Nonparty 41, on the ground that he did not select a representative at the time of the disposition for the establishment of the instant case, and that Nonparty 41 was owned by Nonparty 42, and that Nonparty 41 was not a person who consented to the establishment of the instant case without submitting a letter of appointment of a representative.

③ According to the above facts, in cases where the owners of land and buildings and co-owners are different, even if there is no representative selection among co-owners with respect to co-owned land, Nonparty 41 is the sole owner of the building and its consent can be recognized as a sole owner. Thus, Nonparty 41’s consent is valid.

(2) As to the consent of Nonparty 66

① Article 28(1)1(a) of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas provides that “if one parcel of land or one building belongs to the co-ownership of several persons, one person representing such persons shall be the owner of the land, etc..” The co-owners shall consult with each other to determine one of the co-owners as the person having the right to consent to establish an association, and if the agreement is not reached, the representative of the co-owners shall be appointed as the majority of co-ownership pursuant to Article 265 of the Civil Act on the management of co-owned property (see Supreme Court Order 2007Ma1734, Mar. 27,

② Comprehensively taking account of the overall purport of the statements and arguments in Eul-B, Eul-B, 36, 37, and 38, and the entire purport of the arguments, the non-party 6, 68, 69, and 70 (hereinafter above ownership shares 18.75/139) and the non-party 23 (ownership shares 64/139) are jointly owned with respect to the non-party 66, 68, 69, and 70 (number 26 omitted) and the non-party 23 (ownership shares 64/139). The remaining co-owners except the plaintiff 23 selected the non-party 66 as the representative, and the non-party 66 agreed to the establishment of the instant case. However, the defendant can be found to have excluded the non-party 66 from the consent of the plaintiff 23 as

③ According to the above facts, even though there was an omission of 23 co-owners in the letter of representative selection of the above land, it is legitimate to select Nonparty 66 as representative for the above land, since the remaining co-owners, who selected the representative, meet the majority of 75/139, even if the co-owners were excluded from co-ownership (64/139) of the Plaintiff’s 23 co-ownership by the Plaintiff’s 23 co-ownership by the Intervenor

(3) As to the consent of Nonparty 7

The evidence Nos. 42-1, 2, 3, and 28-1, 2, 29, and 30-28 of the evidence Nos. 42-2, and the testimony of Nonparty 26 of the first instance trial, comprehensively considering the purport of the whole pleadings, Nonparty 7 shared with Nonparty 43 about 119 square meters and above-ground buildings in Daejeon-dong (number 18 omitted) and consented to the establishment of the instant association. The Defendant excluded Nonparty 7 from Nonparty 7 on the ground that the representative was not selected at the time of the instant establishment authorization disposition, but Nonparty 7 and 43 can be recognized as having selected Nonparty 7 as the representative on May 2004 (Evidence No. 30). Thus, Nonparty 7’s consent is also valid.

(4) As to the Plaintiff 7’s consent

In full view of the overall purport of the arguments in the evidence Nos. 2, 25-2, 26 of the evidence Nos. 10-2, 10-2, 25-2, and 26, Plaintiff 7 owns a lot of 92m2,00 square meters in Jung-gu, Daejeon. With respect to the above land, the superficies was established in the name of ice-gu, Seoul Special Metropolitan City. As to the above land, Plaintiff 7 can be recognized as having consented to the establishment of the instant association without submitting a letter of appointment of a representative. Thus, insofar as Plaintiff 7 and the superficiary did not perform the procedure of selecting a representative between Plaintiff 7 and the superficiary, the consent

(5) As to the consent of Nonparty 67

In full view of the overall purport of the pleadings in the evidence Nos. 99-1, 2, 2, and 10-2, 33-2, 35 of the evidence Nos. 99-1, 2, and 10-2, 2, and 35 of the evidence Nos. 71, Nonparty 71 owns a building of 96m2, 96m2, and its ground. On Nov. 13, 1999, Nonparty 67 died on Nov. 13, 199, and Nonparty 7 succeeded to the above land and building with the deceased Nonparty 71’s spouse, including Nonparty 72, 73, and the fact that Nonparty 67 consented to the establishment of the instant association without submitting a letter of appointment of a representative. Thus, as long as the procedures for selecting representatives of co-owners of the above land and buildings do not exist, Nonparty 67’s consent cannot be deemed valid.

(6) As to the consent of Nonparty 40

As seen in the preceding paragraph 3. E. 1, as to the area of this case, the defendant was found to have issued a disposition to grant the establishment of this case except for the non-party 40 on the ground that the representative selection procedure between the non-party 40 and the Han Bank did not exist between the non-party 40 and the non-party 40, and the consent cannot be deemed lawful without the representative selection on the ground that the superficies of the Han Bank was merely the establishment of the purpose of collateral security. Thus, the consent of the non-party 40 cannot be deemed to be valid.

(7) Sub-determination

Therefore, the above assertion by the intervenor union is justified only for the part of the non-party 41, 66, and 7 (the number of consenters increases by three).

2) As to the assertion that the number of owners of land, etc. and the number of consenters should be added

A) The intervenor union's assertion

Of the part that the Defendant did not recognize as the owner of the land, etc. and the consenters of the instant authorization disposition, ① the management agency shall add four owners of the land, etc., which is the Ministry of Construction and Transportation, the Ministry of Finance and Economy, the State-owned land which is the Ministry of Daejeon Metropolitan City and the Daejeon Metropolitan City, and four consenters to the land owned by the Jung-gu, Daejeon Metropolitan City. ② Nonparty 2 and 3 are considered as having acquired the ownership from the person who consented to the establishment of the instant association, and pursuant to Article 28 of the Enforcement Decree of the Act, two owners of the land, etc., and two consenters should be added. ③ Nonparty 74, 75, 76, and 77 received a favorable judgment in the case of confirming the status of each partner, so three owners of the land, etc., and three consenters should be added to them.

B) Determination

(1) As to the number of owners of state-owned and public land and the number of consenters

(A) Review of relevant legal principles

(1) First, we examine the calculation of the number of owners of state-owned and public land.

In the case of a housing redevelopment project, the owner of the land or structure located in the rearrangement zone is the owner or superficies of the land or structure located in the rearrangement zone, and the property management authority of the state-owned land is merely responsible for the management of state-owned property, and its ownership is against the State and local governments. However, according to Article 28(1)5 of the Enforcement Decree of the Urban Improvement Act newly established on July 15, 2010, “the property management authority for State-owned or public land shall be calculated as the owner of the land, etc.” However, in light of the fact that the disposition for authorization for establishment of this case was conducted before the said provision was newly established and implemented, the individual management authority shall not be included as the owner of the land, etc. even if the State or local government owns multiple parcels of land or structure differently

(2) Next, we examine the calculation of the number of consenters with respect to state-owned and public land.

In the case of the State and local governments, it cannot be deemed that the written consent form based on a seal imprint accompanied by a certificate of seal impression under Article 17(1) of the Urban Improvement Act and Article 28 of the Enforcement Decree of the Urban Improvement Act is required as it is. Therefore, it is reasonable to deem that the truth is sufficient if the written consent is indicated in a reasonable manner that can objectively verify it. It is reasonable to deem that the State or local government consented to the implementation of a project unless the State or local government explicitly expresses its opposition to the establishment of the association when the State or local government is included in a project implementation plan. In particular, in light of the fact that the head of the Daejeon Metropolitan City, which is a land owner, concurrently holds the position to represent the Jung-gu Office of Daejeon Metropolitan City, Daejeon Metropolitan City, which is a land owner, can be deemed to have expressed its intent to consent to the establishment of the intervenor association through the instant authorization. In the case of

(B) Comprehensively taking account of the overall purport of the arguments in each of the statements in Eul evidence 10-1 to 5, 53-1 to 102, the following facts are as follows: (a) the Ministry of Construction and Transportation, the Ministry of Finance and Economy, and the Ministry of Finance and Economy, within the area of this case; (b) the state-owned land owned by each management agency; and (c) Daejeon Metropolitan City; and (d) the State and Daejeon Metropolitan City have not expressed an intention of specially opposing the establishment of an association; and (e) the Defendant may, however, recognize the fact that the State and public land were owned by the State, and local governments were excluded from the number of owners of the land, etc. and

(C) Comprehensively considering the above facts in light of the above legal principles, the participant association’s assertion is justified within the scope of the above recognition, as the state, Daejeon Metropolitan City, and Daejeon Metropolitan City should be calculated as the owner of land, etc. and the consent.

(2) As to the number of owners of lands, etc. and number of consenters against Nonparty 2 and 3

(A) Article 28(1)3 of the former Enforcement Decree of the Urban Improvement Act provides that "a person who has acquired land or a building from a person who has consented to the establishment of a promotion committee or an association shall be deemed to have consented to the establishment of a promotion committee or the association." The purport of the above provision is that even if a person has acquired land, etc. from the owner of a land, etc. who has consented to the establishment of an association, the validity of the consent shall not be maintained as it is unless the previous owner has lawfully withdrawn the consent. Therefore, a new owner who has acquired ownership of land, etc. from the previous

(B) According to the evidence Nos. 4-1, 26, and 28 of the evidence Nos. 4-1, 26, and 18-1 through 4, and 42 through 45 of the above evidence Nos. 1, 1, 28 of the above evidence No. 4-1, 28, the non-party 78 owns the above (number No. 29 omitted), (number 30 omitted), and (number 31 omitted) the non-party 79 and 80 jointly with the non-party 4 were selected as the representative, and accordingly, the non-party 2 was included in the owner of the land and the Dong at the time of the instant establishment authorization. The non-party 35, which was before the instant establishment authorization was issued, completed the registration of ownership transfer with respect to the land of this case on May 12, 2006 (number No. 29 omitted), and the non-party 35, which was the owner of the land and the non-party 2, as the non-party 32, omitted.

(C) Therefore, in light of the above legal principles, Nonparty 2 and 3 cannot be added to the number of the previous owners of land, etc. and the number of consenters. Therefore, the intervenor association’s assertion on this part is without merit.

(3) As to the number of owners of lands, etc. and number of consenters against Nonparty 74 and 75

① As seen earlier, in light of the contents of relevant statutes, such as Article 2 subparag. 9, Article 17, Article 28(1) of the Enforcement Decree of the Act on the Improvement of Urban Areas and Dwelling Conditions, and Article 28(1) of the Enforcement Decree of the Act on the Maintenance of Urban Areas and Dwelling Conditions, if the same co-owner jointly owns a different parcel of land, land, or building, only one of the co-owners shall be deemed the owner of the land, regardless of the number of real estate (see Supreme Court Decision 2009Du15852, Jan. 14,

② In full view of the purport of the entire pleadings in each statement of evidence Nos. 10-2, 39-1, 2, 40-1, 40-1, 75, 76, and 77, as co-owners of the building site and the above building site (number No. 34 omitted) and the above ground building, the Defendant consented to the establishment of each co-owner’s association. Accordingly, the Defendant may recognize the fact that only one owner of the land, etc. and one consenting person at the time of the disposition of the authorization for establishment of this case.

③ According to the above legal doctrine, inasmuch as Nonparty 74, 75, 76, and 77 jointly own the above land and building, it is reasonable to calculate only one of the co-owners as the number of co-owners as the number of owners of the land, etc., and solely based on the fact that the status of each co-owner was confirmed, it cannot be included in the number of owners of the land, etc. and the number of consenters. Therefore, the

(g) Redetermination of assets between owners of land, etc. and consenters;

1) As seen earlier, if the number of the owners of land, etc. and the number of consenters is calculated again, the number of the owners of land, etc. is increased by 307 persons from 307 persons at the time of the instant authorization for establishment (i.e., increased number of state-owned and public land - 3 - decreased Nonparty 38 and 39 1). 309 persons, and the number of consenters is not changed from 248 persons at the time of the instant authorization for establishment [i.e., reduced number x 6 (1 x 5 persons in the case of Non-Party 38 and 39 x 1 x 5 persons in the case of Non-Party 41, 66, and 73 x 3 state-owned and public land];

2) Therefore, the ratio of consent to the establishment of the Intervenor Association is about 80.25% (i.e., about 248 persons/309 persons) and the ratio of consent necessary for the establishment of the Intervenor Association is 4/5 (80%).

H. Determination as to the invalidity confirmation and revocation claim of the establishment authorization of this case

Therefore, under the premise that the Defendant failed to meet the consent rate required by the relevant statutes at the time of the instant establishment authorization disposition, the primary claim seeking confirmation of invalidity of the instant establishment authorization disposition and the preliminary claim seeking revocation thereof are without merit.

4. Conclusion

A. Of the instant lawsuits, the part seeking the confirmation and revocation of the invalidity of the instant authorization disposition shall be dismissed, and all preliminary claims seeking the confirmation of invalidity and revocation of the remaining authorization disposition shall be dismissed.

B. Of the judgment of the court of first instance, the part that dismissed all the main claims and the conjunctive claims seeking the invalidity confirmation as to the modification disposition of this case are without merit, and thus, it is unfair to conclude otherwise, and the lawsuit as to this part is dismissed.

C. Of the judgment of the court of first instance, the part which rejected a lawsuit seeking confirmation of invalidity and revocation of the disposition of authorization for establishment of this case, as it is unfair in conclusion. However, since this part is deemed to have been deliberated to the extent that the court of first instance can render a judgment on the merits of this case, it is not remanded to the court of first instance pursuant to Article 8(2) of the Administrative Litigation Act and the proviso of Article 418 of the Civil Procedure Act, and this court itself decides to render a judgment on the merits of this case. However, in this part of the appeal filed only by the plaintiff, the plaintiff cannot dismiss the plaintiff's claim because it is disadvantageous to the plaintiff who is the appellant

D. Therefore, it is so decided as per Disposition.

[Attachment]

Judges Shin Jae-op (Presiding Judge)

1) As above, 12 persons, among 15 persons who submitted a written consent after the disposition of authorization for the establishment of the instant case, recognized as the consent holder of the disposition of the modification of the instant case, among the 15 persons who submitted the written consent additionally, are indicated respectively, and the purport of the entire pleadings and the entire pleadings (including various numbers) (see, e.g., preparatory documents as of April 17, 2007 and records 870 pages).

2) In the case of Nonparty 35 and Nonparty 3’s husband and wife, at the time of application for the authorization of this case, Nonparty 3 submitted a written consent, and transferred ownership of part of the land to Nonparty 3 at the time of application for the authorization of this case. Nonparty 3 submitted a written consent at the time of application for the authorization of this case. In the trial after remand, the Intervenor’s association asserted that the consent of Nonparty 3 should be included as effective at the time of the authorization of this case’s establishment, and that part of the consent

3) Rather, the intervenor union asserts that the part of the consent of the non-party 41 and the non-party 7 should be included in a valid one after the remanding of the case.

4) In the judgment prior to remand (27 pages), it seems that the judgment prior to remand (27 pages) recognized the consent form submitted by the non-party 12 (B evidence 27-1) in 1938 as the consent form submitted by the non-party 13 in 1949 and excluded the non-party 13 in 1949 from the consent form.

5) The Plaintiff also asserts to the same purport with respect to the written consent of Nonparty 10, Nonparty 2, Nonparty 4, and Nonparty 6. However, Nonparty 10 and Nonparty 2, etc. submitted for the approval of this case after the approval of this case was issued as seen in the preceding Note 1. As such, it is irrelevant to the approval of this case.

(6) Although the Plaintiff asserts to the same purport as to the written consent of Nonparty 8, Nonparty 8’s written consent is submitted for the purpose of the instant modification disposition after the instant authorization was issued, as seen in the preceding Note 1. Therefore, it is irrelevant to the instant authorization disposition.

7) Article 52(1)8 of the Enforcement Decree of the Urban Improvement Act and Article 26 of the Daejeon Metropolitan City Ordinance on the Improvement of Urban and Residential Environments (amended by February 10, 2005) reflects the contents of Article 52(1)8 of the Enforcement Decree of the Urban Improvement Act.

8) Giving benefits to the consenting members.

9) The judgment prior to the remand (No. 30 pages) determined otherwise on the premise that the withdrawal of consent after the amendment of the articles of association is valid without distinguishing the contents of the amendment.

심급 사건

-대전지방법원 2007.9.19.선고 2006구합4204

-대전고등법원 2009.2.12.선고 2007누2355

-대법원 2010.12.9.선고 2009두4555

대전고등법원 2011.7.21.선고 2010누2874

-대법원 2014.9.25.선고 2011두20680

원심판결

-대전지방법원 2007. 9. 19. 선고 2006구합4204 판결

-대전고등법원 2009. 2. 12. 선고 2007누2355 판결

-대법원 2010. 12. 9. 선고 2009두4555 판결

본문참조판례

-대법원 2005. 9. 9. 선고 2003두5402, 5419 판결