Trust-type Development Projects and Review of the Right of Occupancy of Landowners

Abstract

In the case of development projects by association, the Supreme Court's decision 2020du36724 (so-called '1-person multiple rights decision') dated 2023.02.23. and the Supreme Court's decision 2022du56586 (so-called '1-generation multiple rights decision') dated 2023.06.29. were analyzed in relation to the interpretation of the qualifications of association members and the status of landowners to receive distribution under the Urban Development Act. In addition, a systematic interpretation was attempted on the necessity of distinguishing between the status of association members and the status of distribution recipients of landowners, etc. under the Urban Development Act, whether the status of association members and distribution rights of those who have acquired land, etc. from 1-person or 1-generation multiple rights holders are recognized, and whether the overlapping application of Article 39, Paragraph 1, Subparagraphs 2 and 3 of the Urban Development Act can be recognized under the principle of legal interpretation. In addition, based on the above unified and systematic interpretation of the combined-type development project, an analysis was conducted on how to review the occupancy rights of landowners in the trust-type development project introduced after 2015. In particular, the Supreme Court decisions 2020du36724 (1-person multiple rights decision) and 2022du56586 (1st generation multiple rights decision) examined above have presented controversial views and implications in the academic world regarding the status of landowners as members of the association, whether the representative association member and the remaining landowners are each recognized as having independent subscription application rights. Meanwhile, the 1st generation multiple rights decision suggests that the representative association member should be selected by overlapping the 2nd and 3rd clauses of Article 39, Paragraph 1 of the Urban Development Act among multiple landowners and transferors. In relation to the content of this ruling, we have reviewed the relationship between legal stability and specific validity, the principle of literal interpretation, and the limitations of systematic and logical interpretation presented in the Supreme Court’s 2011du19239 ruling regarding the interpretation of the law. In addition, in the case where a trustee is designated as a project executor in accordance with the revision of the Urban Development Act on February 9, 2018, the “designation of a project executor” can be considered as “approval of establishment of an association,” and the qualifications of the association member (consignor) can be judged, etc., so the principle of one household per generation can be applied in the same way as in the association-type development project.