김종보, 정비사업의 좌초(坐礁)와 시행자변경, 2017.08, 행정법이론 실무학회
The Stranded Rearrangement Project and Change of Project Implementer
Kim, Jong Bo
The union and its members under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the Urban Improvement Act), or the project implementer under the Housing Act, and the union under the Urban Development Act, have the status of project implementer granted by an administrative disposition based on land ownership. In other words, unions normally have two statuses: project implementers and land owners. However, in an urban rearrangement project, land ownership held by a project implementer is sometimes transferred to a third party through auction due to the bankruptcy of the project implementer, which leads to an inconsistency between a project implementer and a land owner. At this point, there arises a question about how to interpret the relationship between a new land owner and a project implementer, which was granted by a previous administrative disposition. The Urban Improvement Act does not include provisions as to the cases where a project implementer loses ownership during a project and the process of changing a project implementer. Thus, if a project implementer loses ownership during a rearrangement project, it is regarded that the new land owner acquires the right to expect to inherit the status of a project implementer considering the project practice and laws. The new land owner can become a new project implementer with the cooperation of the former land owner who is still the project implementer by its appearance. When a rearrangement project is stranded and an auction for real estate in the rearrangement zone proceeds, and the land ownership of project implementer transfers to a third party, members of the project implementer (union members) lose their administrative legal statuses, granted based on their land ownerships. Therefore, even if a new land owner become a new project implementer recognized by a new administrative disposition, the provision on the succession of rights and obligations under the Urban Improvement Act (Article 10) does not apply to the members, since the provision is only applicable when the members of the project implementer maintain their own statuses. This interpretation is reasonable, as the members are liable for losses of the stranded rearrangement project as they also gain benefits of the successful project. It is at the discretion of the administrative agency whether or not to approve the status of the project implementer to the new land owner. It is also possible to protect former land owners adequately as part of the discretionary activities. However, even though the administrative agency exercises such discretion, it is excessive to require new land owners to obtain the consent of all former land owners to acquire the status of the project implementer. In addition, it is not right to interpret that a new project implementer takes over all responsibility for former land owners (union members), like as an union, by applying the provision on the succession of rights and obligations under the Urban Improvement Act (Article 10), since former union members are no longer able to maintain their statuses as union members legally.
Key Words: Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Project implementer, Union, Auction, Administrative legal status, Market rearrangement project
김종보, 정비사업의 좌초(坐礁)와 시행자변경, 2017.08, 행정법이론 실무학회
The Stranded Rearrangement Project and Change of Project Implementer
Kim, Jong Bo
The union and its members under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the Urban Improvement Act), or the project implementer under the Housing Act, and the union under the Urban Development Act, have the status of project implementer granted by an administrative disposition based on land ownership. In other words, unions normally have two statuses: project implementers and land owners. However, in an urban rearrangement project, land ownership held by a project implementer is sometimes transferred to a third party through auction due to the bankruptcy of the project implementer, which leads to an inconsistency between a project implementer and a land owner. At this point, there arises a question about how to interpret the relationship between a new land owner and a project implementer, which was granted by a previous administrative disposition. The Urban Improvement Act does not include provisions as to the cases where a project implementer loses ownership during a project and the process of changing a project implementer. Thus, if a project implementer loses ownership during a rearrangement project, it is regarded that the new land owner acquires the right to expect to inherit the status of a project implementer considering the project practice and laws. The new land owner can become a new project implementer with the cooperation of the former land owner who is still the project implementer by its appearance. When a rearrangement project is stranded and an auction for real estate in the rearrangement zone proceeds, and the land ownership of project implementer transfers to a third party, members of the project implementer (union members) lose their administrative legal statuses, granted based on their land ownerships. Therefore, even if a new land owner become a new project implementer recognized by a new administrative disposition, the provision on the succession of rights and obligations under the Urban Improvement Act (Article 10) does not apply to the members, since the provision is only applicable when the members of the project implementer maintain their own statuses. This interpretation is reasonable, as the members are liable for losses of the stranded rearrangement project as they also gain benefits of the successful project. It is at the discretion of the administrative agency whether or not to approve the status of the project implementer to the new land owner. It is also possible to protect former land owners adequately as part of the discretionary activities. However, even though the administrative agency exercises such discretion, it is excessive to require new land owners to obtain the consent of all former land owners to acquire the status of the project implementer. In addition, it is not right to interpret that a new project implementer takes over all responsibility for former land owners (union members), like as an union, by applying the provision on the succession of rights and obligations under the Urban Improvement Act (Article 10), since former union members are no longer able to maintain their statuses as union members legally.
Key Words: Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Project implementer, Union, Auction, Administrative legal status, Market rearrangement project