도시및주거환경정비법상 결의내용 변경을 위한 의결정족수 확정 방안에 관한 연구 - 대법원 2012. 8. 23. 선고 2010두13463【관리처분계획취소】판결에 대한 판례평석을 겸하여 -

Abstract

Urban rearrangement project caused constant disputes in business because the economic or environment concerns were in conflict. So the Act on the Maintenance and Improvement of Urban areas and Dwelling conditions for residents (hereinafter ‘the Act’) was established. However, since the Act put in force, 8 years have passed, but there are still constant disputes related to this project. Jurisprudence has established that members of an association for an improvement project have to calculate and agree to the expenses and the members" share of expenses when the project begins. In principle, the developer of such a project bears the entire expenses including the cost of construction, and in the case where the developer is the association, the project is financed by its members. In this article, this system is referred as the share of expenses doctrine. It is the need to determine, early on, whether of not the association for an improvement project will participate in the project and to request for sale of the rights of those against participation, that provided the impetus to develop the share of expenses doctrine under the old regime. However, it is no longer appropriate, because multi-level administrative dispositions are prescribed in the Urban and Living Environment Improvement Act and the reconstruction process, which was controlled by the Articles of Association, has now changed to be controlled by those administrative dispositions. Under this new regime, it is reasonable to control the cost of construction on the basis of administrative dispositions. Accordingly, the appropriateness of an intial cost of construction should be reviewed by a relevant administrative agency during the process of authorizing the establishment of an association, and a modified cost of construction during the process of approving a distribution plan. If either or both costs is or are too excessive, or the determining process is illegal, the relevant administrative disposition can be challenged and corrected. As insignificant matters defined in the enforcement decree article 27, the modification, such as the layout outline of new buildings or the steep increase of business expenses, etc., needs a new Partnership establishment resolution. The new written consent from the owners of lands, etc. adequate for the consent rate described in the Act article 16 could bring about the Partnership establishment modified authorization disposition. And also there would be defect of the written consent which was based on the beginning Partnership establishment authorization disposition, so the new written consent from the owners of lands, etc. adequate for the consent rate described in the Act article 16 could meet the Partnership establishment modified authorization disposition. Above mentioned, the Partnership establishment modified authorization disposition is one of new Partnership establishment authorization disposition and is depart from the beginning one. In this case the beginning one could be regarded as ex officio revocation or nullity. Such flow of the decision in the Court of Lower Instance is told to be established on the right administative agency for drawing the harmonious progress of Housing environment improvement and Housing reconstruction project, and protecting economic and environmental advantages. This kind of point in dispute will be considered to be arranged soon according to the Supreme Court judgement.