[2] The case holding that the judgment below erred in the misapprehension of legal principles, in a case where Gap's local government acquired a land owned by Eul, etc. and opened a 310 local highway, and thereafter, the land was incorporated into a site for the housing site development project; thereafter, the 310 local highway road was used as a road; at the same time, the road with a large number of the above land was assigned a route number to a 359 local highway road; at the same time, the road with a part of the above land was used as a road; and the use as a road was suspended as a road due to the opening of a right-hand road, etc., on the ground that there was an approval for the implementation plan for the

According to the reasoning of the judgment below, since most of the lands in this case were incorporated into a site for the housing site development project on December 30, 204, which is recognized as being comprehensively based on evidence, etc., the lower court determined that, on January 12, 2007, all of the lands in this case were incorporated into a site for the housing site development project. Each of the lands in this case was already determined to be an urban planning and district unit planning for installation of public office buildings and schools as a housing site, and that the request for approval of the implementation plan of the Korea National Housing Corporation, which is the implementer of the housing site development project in this case, was sent to the Defendant who is the owner of the housing site development project in this case, and that consultation was made with the view to consent on gratuitous reversion of the lands used for the housing site in this case. According to Article 11 of the Housing Site Development Promotion Act, if the implementer of the housing site development project had obtained approval of the implementation plan for the housing site development project in this case, it is objectively determined that the land in this case was altered to be used for each of the housing site in this case.

However, we cannot accept the above determination by the court below for the following reasons.

Article 91(1) of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Act No. 11017, Aug. 4, 201; hereinafter “Public Works Act”) provides, “Where the whole or part of the land acquired becomes unnecessary due to the discontinuation or alteration of the relevant project within 10 years from the date of acquisition through consultation or expropriation of the land, or due to other causes, the landowner at the time of the acquisition date or his/her universal successor shall pay to the project operator an amount equivalent to the compensation paid for the relevant land within one year from the date the whole or part of the relevant land becomes unnecessary, or within 10 years from the date of acquisition through the date the whole or part of the relevant land is no longer necessary, and “the relevant project” as provided in the said provision refers to a specific public project, the purpose of which is the acquisition through consultation or expropriation of the relevant land, and “the relevant land becomes unnecessary” means a case where it becomes unnecessary to use it for such project due to the discontinuation or alteration of the specific public project, and its purpose and scope of the relevant land.

(5) According to the records, on October 30, 1995, the Do Governor publicly announced the determination of the road zone (revision) that recognized approximately 71 km of the 71km of the 310-line local highway as the 310-line local highway. On February 10, 1997, he publicly announced the determination of the road zone for the instant road project, i.e., the confirmation and packing of the 310 lines among the above 310 lines. (2) The Defendant acquired each of the instant land from the 16th to December 11, 1997 by consultation or expropriation, and completed the registration of ownership transfer of the said land as the 1st 3rd Do road development zone as the 2nd 5th Do road development zone as the 3rd Do road development zone as the 2nd 4th Do road development zone as the 2nd 5th Do Governor's new road development zone as the 3th Do road development zone as the 3th 5th Do road development zone.

According to the above facts, even if the execution plan approved for the housing site development project of this case stipulated that public office buildings, schools, etc. are to be installed on each of the lands of this case on March 16, 2009, it may be deemed that the utility or public interest needs not be extinguished as long as the local highway 359 lines were provided for common use by the public until March 16, 2009. Accordingly, it is difficult to conclude that the part of the land of this case included in the site of local highway 359 lines in each of the lands of this case was objectively unnecessary for the road development project of this case.

Therefore, the court below should have determined whether each of the lands of this case was used in conformity with the road project of this case and whether each of the lands of this case is excluded from the site of 359 lines among the lands of this case in the course of the housing site development project of this case before the local highway 359 lines were closed, and at the same time, the determination of the road zone for 359 lines of the local highway was made, and whether there was a right to repurchase of each of the lands of this case.

Nevertheless, the court below determined that each of the lands of this case became unnecessary for the road project of this case merely because approval of the execution plan for the housing site development project of this case was obtained, and that the right of repurchase has been exercised immediately to the plaintiffs. In so doing, it is erroneous in the misapprehension of the legal principles as to the occurrence of the right of repurchase stipulated in Article 91(1) of the Public Works Act and failing

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: Omitted

Justices Kim Yong-deok (Presiding Justice)