도시정비법상 조합설립 동의의 유효성 및 매도청구권과의 관계

This paper deals with interpretation and application of the decision 2009Da10881 rendered by the Supreme Court on August 4, 2010 on the relationship between the right of claim for sale and the validity of the consent as to the Establishment of the Partnership for the Reconstruction under the Act on the Maintenance and Improvement of Urban areas and Dwelling conditions for Residents (hereinafter referred as "Act on MIUDR"). In the case, the Supreme Court decided that the consent to Establishment of the Partnership for reconstruction under the pre-formulated Form provided by the "Act on MIUDR" is regarded as lawful. Meanwhile, unlawfulness of the consent to Establishment of the Partnership for reconstruction should not be a ground for claims against the validity of the exercise of a right of claim for sale, the party shall insist and prove that the unlawfulness of the consent results in revocation of authorization for the establishment of partnership or the arrangement for approval is null and void from the beginning. Under the old version of Act on MIUDR Supreme Court had said that the reconstruction resolution should contain specific requirements such as the amount of contributions for reconstruction or the standards of calculating the amount during the reconstruction process in order to avoid additional process of resettlement over those requirements. In particular, Supreme Court had said that not just the consent but the exercise of the right of claim for sale based on the consent was not lawful, if these requirements were not satisfied. However, since Act on MIUDR took effect the reconstruction resolution was replaced by the consent to the Establishment of the Partnership. The Act stipulates that pre-formulated Form shall be used to get consent to establishment of partnership. As a result, many claims against the legality of the pre-formulated Form have been filed regarding whether the consent in the pre-formulated Form includes the requirements above mentioned same as the reconstruction did. There have been controversies over the cases as the each lower court interprets the law in a different way and renders different decisions. Considering that, the Supreme Court decision on the case has great significance as it sets the precedent over a case in kind and to define the new concept of legal nature about the consent in terms of the Establishment of the Partnership. Supreme Court had closely examined differences between the Act on the Ownership and Management of Aggregate Buildings and the Act on MIUDR under which business operators could exercise the right of claim for sale. Recently the court makes clear the relationship between the right of claim for sale and the validity of the consent as to Establishment of the Partnership for the Reconstruction on the basis of the approval for the Establishment of the Partnership, which is accorded as the status of the disposition with certain statutory requirements by the decision of 2008Da60568 made by the Supreme Court on September 24, 2009. Finally it provides an overview of the legal disputes in the field of the Reconstruction. I hope that the Supreme Court's decision will lead to reducing the number of unnecessary disputes regarding reconstruction and redevelopment.