JongBo Kim,The Development Process of Housing Reconstruction and Redevelopment Projects and the Interest in Litigation, Administrative Law Journal, Vol. 56 (2019), pp. 1-29.
<Abstract>
At present, the urbanization rate in Korea has already exceeded 90%, and the housing supply rate has exceeded 100%. It is the biggest feature of the Korean city that the apartments occupy a high percentage of the nationwide houses, slightly over 60%. However, only half a century ago, there was hardly any housing available for those who left rural areas and flocked to big cities such as Seoul during the rapid industrialization and urbanization process. They took unauthorized occupation of the state-owned land in the outskirts of the city and built an unauthorized building there. In this way, the poor settlement villages expanded their territory both inside and outside the city. In the late 1960s, large-scale maintenance work on urban poor dwellings was undertaken, mainly as a housing redevelopment project under the Urban Redevelopment Act. South Korea has redeveloped mainly in the housing field, which is a big feature of the Korean redevelopment projects that directly has led to tons of apartment buildings. In the 1970s, as As urbanization and industrialization progressed rapidly, and people flocked to Seoul and big cities, housing became a socially and politically problematic issue. To solve this problem, the government constructed a large-scale residential land in the south of the Han River(“Gangnam”) where a larege number of apartments were built in the mid-1970s. In the mid 1990s, as 20 years had passed since these apartments were built, the Housing Construction Promotion Act introduced a system which allowed it to demolish apartments over 20 years and build new apartments again. In 2000, as the majority of Gangnam apartments were built for more than 20 years, construction companies began to intervene, and the reconstruction projects in Gangnam began to overheat rapidly. This was followed by the enactment of the Act on the Improvement of Urban Areas and Residential Environment(2003), which made the reconstruction and redevelopment projects integrated as a rearrangement project under a single law. Although the procedures established by the new law were almost similar to those of the Urban Redevelopment Act, they were inevitably transformed in the course of integration. The approval of a committee of promoters, the coexistence of Expropriation and request for sale, the public announcement of transfer, and etc. are transformations born out of the process of enacting the new law. The more active the reconstruction and redevelopment projects, the more dissatisfied a majority of the interested parties will lead to a lawsuit. In the early days, the lawsuits of redevelopment projects were mostly centered on administrative litigation, and the reconstruction projects were mainly disputed with civil litigation. As a result of the merger of the two projects under the Act on the Improvement of Urban Areas and Residential Environment in 2003, the number of lawsuits increased, and the reconstruction projects became the mainstream of the rearrangement projects and preferred remedies through civil litigation. However, the importance of administrative litigation has increased as the Supreme Court ruled in 2009 that civil litigation should not be approved for authorization to establish an association and management disposal plan, and that the litigation should be solved only through administrative litigation. It should be noted that even after the Supreme Court has decided to consider major issues in the rearrangement project as an administrative litigation, the logic of the rulings in the previous civil litigation still affect the administrative litigation. The Supreme Court is producing rulings denying the right of administrative litigation in various cases such as theory of permission, change of disposition and absorption theory, and public announcement of transfer and interest in the litigation. The interpretation of the courts' dismissal in these various administrative litigation is closely related to the tendency of them to confirm the nullity of an authorization to establish an association and a management and disposal plan too easily. Even though the decision of the Supreme Court in 2009 changed the lawsuit on the authorization to establish an association and the management and disposal plan from administrative litigation to administrative litigation, the court has not escaped from the civil lawsuit criteria, which focuses on whether or not associations have met the agreement rate. There are two solutions to this problem. One is the adoption of the general theory regarding the criteria of the nullity in the administrative law, which explains that it is not invalid if the degree of agreement is not enough to limit the reason for nullification. In this case, it is enough to dismiss the plaintiff's claim in the invalidation claim filed after the filing period, and it is not necessary to dismiss the lawsuit in such a way as to broaden the interest in the litigation. The second is to accept the judgment under circumstances in lawsuits seeking confirmation of nullity, which is a burden of the court to change the judicial precedent that has been going on for a long time. Since rearrangement projects have passed multi-stage disposal continuously, it is not easy to avoid cases where disposal is null and void due to serious defects even if we narrow the scope of invalidation. If a particular disposition in the middle of a project becomes null and void, all subsequent proceedings will lose their legal basis and will lose their effect. Such a situation is not well suited to public welfare, therefore, there might be no way other than to dismiss the plaintiff's claim. In order to avoid such problems, the judgment under circumstances recognized in the cancellation case must be adopted in the invalidation case.
<Keywords>
Act on the Improvement of Urban Areas and Residential Environment, housing reconstruction project, housing redevelopment project, rearrangement project, interest in the litigation, authorization to establish an association, management and disposal plan
JongBo Kim,The Development Process of Housing Reconstruction and Redevelopment Projects and the Interest in Litigation, Administrative Law Journal, Vol. 56 (2019), pp. 1-29.
<Abstract>
At present, the urbanization rate in Korea has already exceeded 90%, and the housing supply rate has exceeded 100%. It is the biggest feature of the Korean city that the apartments occupy a high percentage of the nationwide houses, slightly over 60%. However, only half a century ago, there was hardly any housing available for those who left rural areas and flocked to big cities such as Seoul during the rapid industrialization and urbanization process. They took unauthorized occupation of the state-owned land in the outskirts of the city and built an unauthorized building there. In this way, the poor settlement villages expanded their territory both inside and outside the city. In the late 1960s, large-scale maintenance work on urban poor dwellings was undertaken, mainly as a housing redevelopment project under the Urban Redevelopment Act. South Korea has redeveloped mainly in the housing field, which is a big feature of the Korean redevelopment projects that directly has led to tons of apartment buildings. In the 1970s, as As urbanization and industrialization progressed rapidly, and people flocked to Seoul and big cities, housing became a socially and politically problematic issue. To solve this problem, the government constructed a large-scale residential land in the south of the Han River(“Gangnam”) where a larege number of apartments were built in the mid-1970s. In the mid 1990s, as 20 years had passed since these apartments were built, the Housing Construction Promotion Act introduced a system which allowed it to demolish apartments over 20 years and build new apartments again. In 2000, as the majority of Gangnam apartments were built for more than 20 years, construction companies began to intervene, and the reconstruction projects in Gangnam began to overheat rapidly. This was followed by the enactment of the Act on the Improvement of Urban Areas and Residential Environment(2003), which made the reconstruction and redevelopment projects integrated as a rearrangement project under a single law. Although the procedures established by the new law were almost similar to those of the Urban Redevelopment Act, they were inevitably transformed in the course of integration. The approval of a committee of promoters, the coexistence of Expropriation and request for sale, the public announcement of transfer, and etc. are transformations born out of the process of enacting the new law. The more active the reconstruction and redevelopment projects, the more dissatisfied a majority of the interested parties will lead to a lawsuit. In the early days, the lawsuits of redevelopment projects were mostly centered on administrative litigation, and the reconstruction projects were mainly disputed with civil litigation. As a result of the merger of the two projects under the Act on the Improvement of Urban Areas and Residential Environment in 2003, the number of lawsuits increased, and the reconstruction projects became the mainstream of the rearrangement projects and preferred remedies through civil litigation. However, the importance of administrative litigation has increased as the Supreme Court ruled in 2009 that civil litigation should not be approved for authorization to establish an association and management disposal plan, and that the litigation should be solved only through administrative litigation. It should be noted that even after the Supreme Court has decided to consider major issues in the rearrangement project as an administrative litigation, the logic of the rulings in the previous civil litigation still affect the administrative litigation. The Supreme Court is producing rulings denying the right of administrative litigation in various cases such as theory of permission, change of disposition and absorption theory, and public announcement of transfer and interest in the litigation. The interpretation of the courts' dismissal in these various administrative litigation is closely related to the tendency of them to confirm the nullity of an authorization to establish an association and a management and disposal plan too easily. Even though the decision of the Supreme Court in 2009 changed the lawsuit on the authorization to establish an association and the management and disposal plan from administrative litigation to administrative litigation, the court has not escaped from the civil lawsuit criteria, which focuses on whether or not associations have met the agreement rate. There are two solutions to this problem. One is the adoption of the general theory regarding the criteria of the nullity in the administrative law, which explains that it is not invalid if the degree of agreement is not enough to limit the reason for nullification. In this case, it is enough to dismiss the plaintiff's claim in the invalidation claim filed after the filing period, and it is not necessary to dismiss the lawsuit in such a way as to broaden the interest in the litigation. The second is to accept the judgment under circumstances in lawsuits seeking confirmation of nullity, which is a burden of the court to change the judicial precedent that has been going on for a long time. Since rearrangement projects have passed multi-stage disposal continuously, it is not easy to avoid cases where disposal is null and void due to serious defects even if we narrow the scope of invalidation. If a particular disposition in the middle of a project becomes null and void, all subsequent proceedings will lose their legal basis and will lose their effect. Such a situation is not well suited to public welfare, therefore, there might be no way other than to dismiss the plaintiff's claim. In order to avoid such problems, the judgment under circumstances recognized in the cancellation case must be adopted in the invalidation case.
<Keywords>
Act on the Improvement of Urban Areas and Residential Environment, housing reconstruction project, housing redevelopment project, rearrangement project, interest in the litigation, authorization to establish an association, management and disposal plan