This study is purposed to consider the effect of the transfer public notification adopted in the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents and the remedies for the unlawful transfer public notification...
This study is purposed to consider the effect of the transfer public notification adopted in the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents and the remedies for the unlawful transfer public notification.
The Urban Maintenance Project is not a personal real estate development matter to remove the poor building one by one simply and to construct the new buildings. The concerns of the entire group of equalized land owners are related and it is a public project to aim the restoration of the social functions as well as the establishment of the road and park.
The project operator for the Urban Maintenance Project is the housing cooperative in principle and the constituent members of the housing cooperative are the persons who have a direct concern with the Urban Maintenance Project. The harmonious unification, reasonable decision making and rapid work process are the key points for the success of the project out of many factors for success in the Urban Maintenance Project. The secret is to start from the interest of the Urban Maintenance Project exactly, but it is not easy for the members and directors of the housing cooperative to understand the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions which are mixed with the public and private laws. It is true the laws do not say everything. However, the biggest interest of the members is the shares from the lotting-out and it is a matter of the effect of the transfer notification.
The reason of focusing on the period of project performer by the housing cooperative in this study is an intention to make realize for the housing cooperative members to feel the effect of the right conversion in the transfer public notification. At the same time, the exact understanding on the procedural remedy due to the unlawful transfer public notification seems to be an opportunity to relieve the ambiguous burden from the development. Consequently, this study purposed to handle the practical matters such as whether application of the precedents for the disposal of replotting or disposal of lotting-out from the Supreme Court can be applied to the transfer public notification rather than identifying the academic theory. That is the limitation of this study and an avoidable result to accomplish the goal.
There is no big change in the redevelopment project such as the application of the replotting regulation of the 「Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions」after the implementation of the 「Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions」, but the change in a real right will be occurred by the public purpose replotting conversion method in the reconstruction. The transfer public notification calculated the disposal of lotting-out in the (old) Urban Redevelopment Laws, but it is not same. Even the regulating format makes what is the transfer of ownership as doubtful. However, the disposal of replotting in the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions is not different with the conventional disposal of lotting-out as far as its effect is pursuant.
The realistic effect of the transfer public notification is the confirmation on the right and the settlement amount. The rights existed on the previous land and building maintains and performs its identity as a land or building lots is the effect of the right confirmation or right conversion. The right confirmation shall be made for the every land or building inside the redevelopment area in principle. But the right of every land and building are not converted actively. A part of the rights reach to the passive diminishing. In the other words every ownership is cancelled at the maturity of the transfer public notification date regardless of receiving the lot by the equalized land owners. Accordingly, the ownership of the equalized land owners is obtained at 0:00 AM on the next day of the transfer public notification of the land or building which is the object of lotting-out, but the ownership of the person who did not receive the lot will be lost eventually. This is the granted effect to the straightforward public notification made from the authoritative position of the housing cooperative regardless of the intentions of the land owners. Therefore, the transfer public notification is called as a public purpose replotting conversion which is one of the real public purpose burdens.
The Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions regulate a series of the procedures to the transfer public notification, but the lotting-out which lags behind the previous land or building in quantity and quality is not planned for the lotting-out and there are many unlawful cases. As it was said, the effect of the right cancellation of the illegal transfer public notification creates many conflicts related with the Urban Maintenance Project. However, it is right to say that the starting point of such conflict is the managerial disposal plan. But the inductive review can be regarded as meaningful to reconsider such conflicts from the effect of transfer public notification because the managerial disposal plan reaches to the eventual confirmation by the transfer public notification which executes it.
The registration of the converted right by the transfer public notification is the urban maintenance registration. The urban maintenance registration is made according to the defined procedure by the Supreme Court regulation. That allows many special cases such as the supplementary application of the real estate registration law. The application of the urban maintenance registration can be made by the housing cooperative which is the project operator. Even the owner and other entitled persons can not apply the registration directly or instead. Therefore, the execution of the right is restricted in case of indefinitely delay of the registration and the appealing lawsuit for refusing the disposal for the registration request is mentioned as a method to remedy the damage. The expense is inevitable in the maintenance project.
The housing cooperative may impose the expense and settlement payment for disposal. However, it is solved in prior practically. That is so called as a lotting-out plan. The difference amount between the previous land or building and the land or building which is sold in lot shall be paid or exchanged before the transfer public notification to the housing cooperative and its members through the lotting-out plan. But the confirmation on the settlement amount is necessary in this case. When there is a transfer public notification, the settlement amount is decided and the housing cooperative shall make a notice to pay or impose the calculated amount according to the fixed criterion for calculation of the settlement amount. That is the disposal of the settlement amount imposing.
The previous study defines that the effect of the transfer public notification or managerial disposal plan shall not be handled again after the effectuation of the transfer public notification. It is fundamentally doubtful why it cannot be handled in spite that the transfer public notification made a great influence on the change of the right for the equalized land owners who are the members for the housing cooperative or not.
It is from the characteristics of the right conversion plan that it is to redistribute the closely bound lands inside the maintenance area. The defect cannot be remedied partially and separately for the illegal party in spite that there is an unlawful defect in the transfer public notification. Besides that, it is based on the notion that the tremendous economic loss shall not be made by rejecting the large scale public project by the partial defect. In spite that there is no difference in conclusion, the resolution for the fundamental doubt is the understanding for the maintenance project.
The transfer public notification with defect shall be struggled with the lawsuit for confirming the non validity in case of important and apparent non validity depending on the level of the defect and with the lawsuit for cancellation in case of the less important violation of the laws. These conflict is not so effective as it is told in the previous studies because this is reviewed as classified as an administrative "remedy". The characteristics of the impossibility of the original recovery of the right conversion plan itself will neglect the small interest in the lawsuit of cancellation. Because it cannot be expected in case of saying as non valid for the entire replotting procedure.
When there is no way to struggle for the transfer public notification violated except the appealing lawsuit, the remedy for the damage can be compensated only by the civil lawsuit. It is reviewed as a civil remedy and the nature of compensating the damage may be differed depending on the basis of the ownership loss. The settlement payment to the person who did not receive the lot previously is the effect from the disposal of lotting-out and the settlement regulation has the nature of the compensation for the loss. Because the constitution let the compensation method in the restriction of the property right such as the confiscation aside to the laws, the settlement regulation is namely compensation criterion and the equivalent amount for the settlement to be paid according to this is the amount for the damage from the loss of the ownership. The current cash settlement is out of the effect from the transfer public notification, but it can be considered as a conventional settlement in terms of its history or properties. And then, there is bigger possibility of loss in the market price in calculation of the loss amount by the cash settlement. If it is not considered in this way, it is the case of no provision of the compensation regulation while the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions decide the public purpose burden which is called as transfer public notification. It is more probable to say that the market price is the loss in this case.
The genuine ownership of the owner is transferred to the land or the building once the transfer public notification is converted its right differently as it was said. The transfer public notification is not a disposal to grant the ownership to a certain person in its name and address in the managerial disposal plan. It is a physical disposal which converts the right in the relation between the real thing and the real thing. Consequently, the real owner may execute the ownership against the not real owner who was the opposing party for the transfer public notification.
The claim for the cancellation of the ownership registration of the not real registered person is for the idea of the public notification system for such execution of the right, but actually or in terms of lawsuit economy, the registration of the ownership transfer to recover the real name is approved. However, the next lawsuit for claiming the ownership transfer registration filed by the real owner who was defeated in the previous lawsuit of claiming the ownership cancellation registration is against the judgment power of the previous lawsuit.
The precedents of the Supreme Court which suggested the above legal principle say that both claims are actually same case of lawsuit, the opinion related with the old lawsuit maintained traditionally was not suggested expressively. There are many debating on the interpretation of the judgment due to this. Especially, the matter of the transaction safety is pointed out such as the non recovery of the name of registration in spite of the ownership confirmation for the real owner.
This study was initiated from the point that it shall be newly understood that it cannot be struggled after the transfer public notification in spite of the enforced right conversion effect of the transfer public notification. It means that the members and directors in the housing cooperative are regarded as necessary for the right understanding of the maintenance project. Especially, the change of the right and the struggling method by the lawsuit are the peak of the project completion. The precise review that the struggling by the civil lawsuit is expected after the transfer public notification will be an aid to the legal action of the housing cooperative. The fact that the members of the housing cooperative understand this procedure and effect fully was the belief that the meaning can be doubled in terms of deciding the willing of the housing cooperative. However, it is regretful that the deficient and not purified parts did not respond to the intention of the study.