재건축ㆍ재개발정비사업조합의 설립동의 또는 총회결의에 관한 소송유형의 검토 ― 2009. 9. 17. 및 2009. 9. 24.의 대법원 판결ㆍ결정을 중심으로 ―

In september 2009, almost 6 years after the introduction of the Act on the maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents(hereinafter 'the Act'), the supreme court delivered two important decisions concerning, respectively, the establishment of a reconstruction/redevelopment project association(hereinafter 'an association') and the resolution on the distribution plan passed by its general assembly. According to the supreme court, an approval for establishing an association rendered by the competent administrative agency grants the association a status as a public juristic person and entitles it to carry out certain administrative works pursuant to the Act. The association establishment resolution, the written agreement of its members on the establishment of the association, is merely one of the elements required for the agency's approval. Thus, those who question the validity of the establishment should file an appellate lawsuit, an administrative action of a sort, and seek to revokel or nullify the approval on the ground that the association did not fulfill the required agreement. Filing a civil action disputing the validity of the association establishment resolution separately from the approval shall be dismissed as unlawful, as such a judgement confirming the resolution invalid will have no power in denying the validity of the approval itself. A distribution plan is an administrative disposition made by an association; a resolution passed by the general assembly of an association over issues of a distribution plan is also merely one of the requirements for the plan to come into effect. Therefore, the supreme court stated, a lawsuit seeking to nullify such a resolution must be viewed not as a civil lawsuit but as a party litigation, a type of an administrative action, as it concerns the legality of the relevant distribution plan. Such a litigation is allowed only before the distribution plan is approved by the competent administrative agency. After the approval, only appellate lawsuits to revoke or nullify the distribution plan itself are allowed as lawful. The supreme court confirmed in its order made in the same month that it is still lawful to file a civil lawsuit seeking to confirm the invalidity of a resolution by the general assembly appointing the president and other representatives of an association, as such a resolution is related only to the civil life of the association. Thanks to these supreme court judgements and decision, more of the judicial control over reconstruction/rearrangement project came to fall under the responsibility of the administrative courts. Further study is needed on how the administrative courts will differ in its intensity and other aspects of the control over the issue.