도시정비사업의 건설공사비 분쟁에 대한 실증적 고찰

도시정비사업의 건설공사비 분쟁과 재산권 문제를 분석했다.

Urban Improvement Projects are cases where the private property of each individual and property right is compulsorily disposed under the establishment of the Urban and Residential Environment Improvement Act. In other words, the opinions of the majority are coercing the property disposal of some people. As such, if implemented according to the above regulation, then of course, it must correspond to all standards according to procedure and implementation as well as to transparent and public benefit. In the past, dispute about management disposal related to project implementation occurring among union members was enforced by a civil trial.

Yet only recently, the union, which is a representative organization of a union member, was bestowed the position of an administrative organization, and a transfer was made to an administrative lawsuit according to a precedent of the Supreme Court. The position of a government employee is applied to the head of the union who is the representative of union members and to the management members of the union. Thus, the state of affairs is such that, in terms of a criminal offense, added penalty is imposed conforming to a government employee.

The union head and management members must be selected only if they have been in the position of a native resident for a certain length of time according to the establishment of the Urban and Residential Environment Improvement Act rather than chosen from a construction specialist or administrative specialist. Realistically and actually, the union members in reality do not have a clear job and also comprise of not only non specialists but also the aged class. In respect to contractual relationship of a construction company, a design company, a maintenance company, an engineer company, etc.

which are in a contractual relationship with a union that is at odds with the rights of a union, a firm contract is a matter of principle like all agreements. Yet, in the case of all construction works, a change to the agreement amount due to circumstantial change is inevitable. Still, no standard whatsoever relating to adjustment of agreement amount due to such a circumstantial change has been prepared. As discussed in Chapter 3, in the case of a public construction work, the construction project is implemented by a specialist group from each field. Also, a manual even for selection of a construction project manager and audit work has been prepared.

Thus, the state of affairs is such that a strict standard and procedure are prepared and implemented for adjustment of agreement amount due to circumstantial change during construction and for disagreement over the agreement according to the law on consolidated construction technology management. Yet, in the case of a redevelopment/rebuilding construction project, no standard or procedure has been prepared except for a phrase on mutual consultation. Thus, it is permeated with causes of endless dispute. It is true that there are changes to rights of several tens of billions of won in property due to such a trivial difference of opinion.

Hence, as mentioned in chapter 2, the management members of a union of redevelopment/rebuilding maintenance union correspond to the position of a government employee, and the management and disposal related to the property among the union members are processed by an administrative litigation.

As such, in respect to the agreement concluded by the concerned persons of the agreement, it is judged that for differences of opinion after the agreement or adjustment of agreement amount due to circumstantial change, the “law on agreement which has the state as a concerned party” and its subsidiary “standard on construction agreement implementation”, notification, and others, which have already been prepared by the Ministry of Strategy and Finance, should apply with necessary modifications.

Thus, it is judged that regarding difference of opinion after agreement or circumstantial change related to all future agreements, a union should include the phrase, “the state agreement law will be applied with necessary modifications” or should make such a clause mandatory for city and residential environment maintenance law, and others. Also, it is judged that in terms of implementation according to the law” related to such an agreement where the state is a concerned party, a 3rd audit institution, the competent authorities, etc. should audit whether implementation has been made or not. Or, the construction project manager mentioned in chapter 4 should act as a proxy.