주택재개발ㆍ재건축사업에 관한 판례분석

초록

In the past, housing redevelopment project was regulated by the Urban Areas Redevelopment Act and housing reconstruction project by the Act on the Promotion of Housing Construction. There were many criticisms regarding this situation, because although these two projects have similar nature, they were being regulated by different laws. Accordingly, in December 30, 2002, the Act on the Improvement of Urban Areas and Dwelling Conditions for Residents was established to regulate two projects with one law and one procedure. As the law system regarding the urban housing renewal project changed, the new precedents were set. If there were flaws in the resolution of association’s general assembly regarding the establishment of redevelopment(reconstruction) project association, whether the lawsuit should be regarding the effect of the association establishment resolution, or the effect of the mayor's approval on the establishment of association can be a problem. In the past, assuming that th mayor's approval on the establishment of the association corresponds to authorization, the Supreme Court stated that the mayor's approval on the establishment is not effective if there are flaws in the basic action of the establishment, and therefore no need to nullify the mayor’s approval because of the flaws in the resolution. However, in September 2009, the Supreme Court stated that the mayor's approval on the establishment of association has the characteristic of concession, so if there were flaws in the association establishment resolution, nullifying the approval must be requested, setting the mayor that approved it as the defendant, and a lawsuit on the effect of such a resolution is not acceptable. To request an approval on the management disposal planning, more than half of members of association should agree. Regarding this, if there were flaws in the association establishment resolution about management disposal planning, there will be a problem on how to solve this. In the past, the Supreme Court stated that the members of association still had right to institute a lawsuit to ask for nullify the resolution, after the mayor’s approval on the management disposal planning. However, in September 2009, the Supreme Court stated that the lawsuit against the reconstruction association, which is an administrative agency, concerning the effect of the association establishment resolution about the management disposal planning corresponds to party litigation by the Administrative Proceedings Act. If the mayor approves the management disposal planning of the association, the management disposal planning takes effect as an administrative action, so nullifying the management disposal planning should be requested through an appeal suit, with the reason of flaws in the association assembly resolution. Apart from it, a lawsuit regarding the effect of resolution of the association’s assembly is not allowed as lawful.

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