再建築・再開發組合設立과 不動産을 所有한 國家・地方自治團體의 地位

Abstract

The Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents(hereinafter ‘the Act) requires consents of a qualified majority of real estate owners for the reconstruction/redevelopment association to be established. The Act does not clarify whether the State and local governments, if they own real estate in the project area, are also entitled to give consent to this establishment or not, but a recent revision on the Presidential decree indicates that they are. The Supreme Court ruled in 2014 that if the owner is the State or a local government, its consent does not have to be a written one and that this consent can be presumed unless the government states otherwise. The Supreme Court’s interpretation, despite its virtue of preserving stability of numerous reconstruction/redevelopment projects already in full swing, seems nevertheless in disaccord with the Act which specifies that the owner’s consent must be in writing. Granting a right to consent to the State and local governments has its own problems. Excepting rare cases where a local government owns property outside its territorial jurisdiction, State and local governments have the authority to supervise the projects either directly or indirectly. If they have other privileges acknowledged to private owners such as right to consent to the establishment of the association and to vote in the general assembly as its member, this double role as a supervisor-cum-member of the supervised could cause some serious conflict of interests. Also, they have right to consult the governing authority before setting up the rearrangement zone and also before authorizing the project implementation plan, which privides enough protection for their property, unless they own a house and thus have a chance to apply for the parcel-out process. It is therefore advisable that the Act be amended to limit the right to consent of the State or local governments to the cases where it is necessary for the protection of their property and where the problem of conflict of interests does not arise.