재건축결의무효의 공법적 파장(波長)

Abstract

Recently, action for declaration of annulment of reconstruction resolution has become an effective remedy of the reconstruction projects. It originally played an important role in relation to the claim for sale during the era when reconstructions were undertaken under the Act to Promote the Construction of New Houses and the Act Concerning the Ownership and Management of Collective Buildings. The action is continued to be sought without any significant doubt even under the new City and Residential Environment Improvement Act. In the action for declaration of annulment of reconstruction resolution (currently assent to the establishment of a reconstruction union), if a civil judgement for the annulment is rendered, such a judgment, coupled with the public law, brings various legal effects. According the Supreme Court of Korea which considers the approval of the establishment of a reconstruction union as an approval under the academic meaning system, the annulment invalidates its approval, takes the prohibition on resale of right to purchase a new apartment as if it never existed, and invalidates the trust registration done by a union member for the union. Moreover, not only must be a reconstruction board, as predecessor to the union, revived, but also the action for claim of sale, which requires the establishment of the union, becomes impossible. In addition to these direct effects, it also brings other indirect legal effects such as invalidation of follow-up dispositions and procedures after the establishment of the union, no application of transitional provision, etc. These are the public law repercussions of the annulment of reconstruction resolution. Furthermore, in the reconstruction business, the availability of a civil action for declaration of annulment of reconstruction resolution means that the administrative litigation (procedure) law, which restricts the cancellation action system to the exclusive jurisdiction and statute of limitation, would be dispensed with. Such an attitude not only goes against the purpose of the City and Residential Environment Improvement Act, but also distorts the dualistic legal order of public and private law, each with its own procedures and remedies, and undermines the legal stability. Besides controlling the civil effects through the approval under the academic meaning system (the ‘approval’), if other public law effects are necessary, the ‘approval’ can exist in one disposition together with an authorization or a special permission. For instance, in the case of the approval of the establishment of a reconstruction union, while giving legal effect to the articles of the union executed by its members functions as the ‘approval’, in the aspect that the approval determines the union as the business operator, thus the subject of various dispositions, it amounts to the establishment of a public legal person as an administrative subject that carries out public duties (i.e. special permission). Therefore, it would be desirable to allow the cancellation action against the approval of the establishment of a reconstruction union, and that in the long-run, the action for declaration of annulment of establishment of the union should be converted to the action for cancellation of such approval.