정비사업조합의 법적성질과 현금청산금액 산정

Under ‘the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents’, the cash settlement system is a system that provides cash equivalent to the existing land or structures of the partner used for the rearrangement project to partner who are not supplied with the site or structures that are made by the project implementer. It is hard to find a partner who wants to settle in cash because it can get a lot of profit to be supplied the apartment when apartment price rise. On the other hand, if the rise in apartment prices is slowed down or rather decline so it is difficult to obtain the expected profits, the number of partners who want to settle in cash increases, and disputes related to cash settlement increase. In the development project of the replotting method, the person who is given a replotting will pay or be paid the excess and the shortage between the site and the old land, and the person who is not given a replotting will be paid the amount of the land as settlement money. In the development project of expropriation method, the person who is given the site or building will pay or be paid for excess or deficiency between old land and new site, between old structure and new structure, and the person who excluded from the rearrangement project will be compensated for the value of old land or structure. Under ‘the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents’, the cash settlement system is not well suited to the typical structure of replotting method and expropriation method. We can find the origin of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents’ cash settlement system from Land Compartmentalization and Rearrangement Projects Act’s provisional settlement money article and the 1980 revised settlement money article as well as Urban Redevelopment Act’s system for selecting provisional settlement money article, settlement money article and expropriation article. A representative type of group is Partnership and Incorporated Association in civil law. In many groups, the legal nature of Partnership and the legal nature of Incorporated Association are mixed. The rearrangement project association is also group that has both the legal nature of Partnership and the legal nature of Incorporated Association. The cash settlement system is based on the legal nature of Partnership that the partner’s contributions and retirements. Therefore, the cash settlement should be regarded as a procedure in which a partner who contributed land or a structure to a rearrangement project association retires from the partnership and pays out the ex-partner‘s share. However, contribution shall be based on voluntary will of partners. In the redevelopment project, partners who did not agree to establish a rearrangement project association and are eligible for cash settlement are deprived of ownership of land or structures against their will. In this case, it is difficult to see that the partner has contributed in land or structure, and should be regarded as expropriated against the will. The Supreme Court has the view that a arrangement project association can settle the cash or demand return in separate procedure only if it is prescribed in articles that the person who retired from the partnership should share a part of the costs for the rearrangement project. This attitude is valid for redevelopment project partners who do not agree to establish a rearrangement project association, but it is not appropriate to apply to partners who want to retire from the reconstruction project because that do not match the legal nature of the cash settlement. Therefore, when calculating the amount of cash settlement of a person who has agreed to establish a partnership, it should deduct costs for the rearrangement project used until the partner retires from the value of the previous land or structure according to share of partner. The price of the previous land or structure should be evaluated on the basis of the notified date of the project implementation plan that the partner' obligation to contribute is concretely established. In addition, it is reasonable to consider the management disposal plan, the notification date for which the person to be settle by cash is determined, as the reference point for calculating the costs for the rearrangement project.