Law Firm LLC (LLC) LLC, Counsel for the defendant-appellant

Attorneys Kim Nung-hwan et al.

Attorney Han-soo et al., Counsel for the defendant

1. A. Article 48(3) of the former Act on the Maintenance of Urban and Residential Environments (amended by Act No. 8970 of Mar. 21, 2008; hereinafter “former Act on the Maintenance of Urban Areas”) provides that “Where there is a remainder after receiving an application for parcelling-out under Article 46, a project operator may sell to persons, other than members, the reserved land or the land or buildings sold to the said reserved land and the general public shall be deemed as reserved land or the land or buildings sold to the public under Article 33 of the Urban Development Act.” Accordingly, the legal principles on reserved land or the land and buildings sold to the reserved land or the land and buildings sold to the general public under Article 46 can be applied to the reserved land or the land and buildings sold to the general public without filing an application for parcelling-out or without concluding a sales contract.

Meanwhile, Article 33 of the former Act on the Development of Urban Areas (wholly amended by Act No. 8376 of Apr. 11, 2007; hereinafter "former Act") provides that "any implementer may determine a certain land as a substitute lot and without designating it as a land substitution land for expenses incurred in an urban development project, or for the purposes set forth in weak, articles of incorporation, regulations on implementation, or implementation plan," and Article 41 (5) provides that "any land secured by the authorities in recompense for development outlay under the provisions of Article 33 shall be acquired as of the day following the date on which the purchaser of the land secured by the authorities in recompense for development outlay has publicly announced the disposal of substitute land: Provided, That the land which has already been disposed of pursuant to the provisions of Article 35 (4) shall be acquired as at the time when the purchaser of the land secured by the authorities in recompense for development outlay has completed the registration of transfer of ownership," provided that "the right of reserved land shall be acquired as at the time when the previous land substitution plan has been determined as at the time when the previous land substitution plan expires."

B. According to Article 39(4) and (5) of the former Urban Development Act, where a project implementer undergoes a completion inspection by a designating authority, he/she shall notify landowners of the matters prescribed in the replotting plan and make a replotting disposition by publicly announcing the same, and the alteration of rights pursuant to the contents of the replotting plan by such replotting disposition.

Meanwhile, according to Article 54(1) and (2) of the former Act on the Improvement of Urban Areas and Dwelling Conditions, a project implementer shall notify the purchaser of the matters determined by the management and disposal plan at the time of the announcement of the authorization of completion of construction and the completion of construction works, and shall publicly notify the details thereof in the official bulletin of the relevant local government. In light of the methods and effects of the disposition of replotting and the public announcement of transfer, the alteration of rights according to the management plan shall take place as follows: (a) the effect of the public announcement of transfer shall be changed in the same manner as the effect and the change of rights pursuant to the Act on the Development of Urban Areas and Dwelling Conditions applied mutatis mutandis pursuant to the relevant provisions of the Act on the Improvement of Urban Areas and Dwelling Conditions (see, e.g., Supreme Court en banc Decision 2011Du6400, Mar. 22, 2012).

2. Review of the reasoning of the original judgment and the record reveals the following facts.

A. On May 18, 1985, the Minister of Land, Transport and Maritime Affairs determined and publicly announced the Seodaemun-gu Seoul (number 1 omitted) as the redevelopment project district for housing improvement under the former Urban Redevelopment Act (repealed by Act No. 6852, Dec. 30, 2002; hereinafter the same shall apply). The non-party association obtained authorization for the implementation of the redevelopment project of this case on December 3, 1986. The head of Seodaemun-gu Office authorized and publicly announced the management and disposal plan prepared by the non-party partnership on August 24, 1991, and authorized and publicly announced the revised management and disposal plan on December 29, 2005 (the above revised and publicly notified management and disposal plan as to the land in this case). After the completion of the redevelopment project, the head of the Seodaemun-gu Office publicly announced and announced the new management and disposal plan of the land in this case, including the new management and disposal plan for the land in this case, and the new management and disposal plan of the land in this case.

B. On January 16, 1987, when implementing the redevelopment project of this case, the non-party partnership agreed to transfer the site located in the school emotional location operated by the plaintiff to the plaintiff as substitute land, among the redevelopment project site of this case. On February 1, 1988 and October 1992, the non-party partnership completed the registration of ownership transfer in the name of the non-party partnership by acquiring the land for the railroad site of 321 square meters (hereinafter referred to as the "previous three lots of land in this case by adding the lot number 2 omitted) of Seodaemun-gu, Seoul as of the lot number base at the time of the above site from the above site, the 113m (number 2 omitted) of Seodaemun-gu, Seoul as of February 198 and 192.

On December 31, 192, the Plaintiff and the Plaintiff agreed to sell in lots 54 meters (the sum of four parcels 5 omitted) of the size of the previous three parcels of land at the time and the aggregate of 609 meters of the size of the previous three parcels of land at the time, and to transfer to the Plaintiff the ownership of the third party without any defects. On the other hand, the Plaintiff agreed to use each of the above parcels of land as the site for the school emotional expansion project without any defects. On April 28, 2005, the Plaintiff agreed to specify each of the above agreements with the Plaintiff. The Plaintiff, as the site for the school emotional expansion of the land operated by the Plaintiff, shall be the total of 9 parcels of the previous three parcels of land including the previous three parcels of land at the time, or the total of 609 meters of the size of the area of the previous nine parcels of land including the previous three parcels of land at the time, and the ownership transfer registration of the land at the time after the completion of the redevelopment project of this case shall be made to the Plaintiff without delay.

The non-party partnership issued to the plaintiff a written consent to use confirming that the right to use the whole land subject to sale was the plaintiff, and the plaintiff made a voluntary adjustment of the same content as the sales contract of this case on December 9, 2005 in the lawsuit against the non-party partnership Eul for the registration of ownership transfer concerning the land subject to sale at the time limit.

C. Meanwhile, on November 23, 2004, at the request of the non-party creditor, etc. of the non-party partnership, the compulsory auction procedure (hereinafter referred to as "the auction procedure of this case") was commenced as to nine parcels of land in the non-party partnership's name within the redevelopment project district of this case, including the previous three parcels of land in this case on November 23, 2004 at the request of the non-party creditor, etc. of the non-party partnership. The defendant (the appointed party; hereinafter referred to as the "defendant") purchased the said nine parcels of land in the auction procedure of this case, and completely paid the sale price on August 10, 2006, which was after the date of the public notice of transfer of this case.

D. 1) Under the first management and disposal plan approved on August 24, 1991, the non-party cooperative pointed out approximately 36,98.6 square meters of land to be sold to the plaintiff, excluding about 41,667.7m of public facilities, about 4,070m of land for the redevelopment project district of this case, and about 36,98.6m of land to be sold to the plaintiff as one parcel. The non-party cooperative made a plan for the sale of land to which ownership is given as co-ownership according to the ratio of the size of the building facility for each land subject to parcelling-out. At the time of the revision to the management and disposal plan on January 8, 199, such plan was maintained except that the use of the above 609m of land for the road expansion plan was changed from the "road site" to the "school site" on December 29, 205.

① The previous Seodaemun-gu Seoul Special Metropolitan City (Land Number 1 omitted) land No. 920 is the 27 pieces. Of the previous 920 parcels, the 23 parcels out of the previous 920 parcels are maintained with the previous land, and the remaining 897 parcels are divided into 4 parcels, 2 parcels of the housing site, 1 parcel of public facilities, and 1 parcel for other purposes.

(2) An apartment building, neighborhood living facilities, and sales facilities are newly constructed on two parcels corresponding to a "housing site", and apartment houses are sold to the association members for sale, and neighborhood living facilities and sales facilities are supplied to the general public.

③ The portion of “one parcel of public facilities” is newly constructed, which is gratuitously reverted to Seodaemun-gu, and the portion of “one parcel of other purposes” is newly established in the part of “609m of a school site,” and it is transferred to the Plaintiff after the non-party partnership acquired it.

④ The registration of the instant decision on commencing auction as to the previous three parcels of land, etc. is transferred to sales facilities among the buildings constructed in the part of the “housing Site”. Meanwhile, the instant management and disposal plan includes “written designation of the land scheduled for substitution.” The said written designation includes the previous three parcels of land, including the previous three parcels of land in this case, and where the instant land is solely or partially owned as the land scheduled for substitution as to the previous nine parcels of land in physical location, the instant land and two parcels of the housing site are also indicated.

E. The written public notice of the transfer of this case, prepared and publicly announced after the authorization of the instant management and disposition plan, stated that the land of this case was indicated in the part of the 609 square meters for school site (number 8 omitted) part of the 'detailed specification of public facilities newly established' in the above protocol, and that the land of this case is transferred to the Plaintiff after the non-party association acquired the land of this case, and the registration of the decision on commencing the auction of this case on the previous 3 lots of land of this case is transferred to the sales facilities that were created in the part of the housing site.

F. On October 23, 2006, 2006, after the public notice was given on the transfer of the instant case, the non-party association filed a lawsuit on the instant land.

After completing the registration of preservation of right, the registration of ownership transfer is completed on the same day.

G. Since then, the Defendant asserted that the previous three parcels of land of this case were substituted by some shares out of the instant redevelopment project as the instant redevelopment project by a junior administrative officer, etc. in charge of requesting the registration of the Seoul Western District Court to the Seoul Western District Court, and applied for the registration of the change of ownership transfer under the name of the Plaintiff.

The lower court dismissed the Defendant’s objection on June 25, 2013. However, on March 17, 2014, the appellate court rendered a decision to revoke the first instance court’s decision and to request the Defendant to register the transfer of ownership of 323/609 shares out of the ownership of the non-party partnership and to register the change of the Plaintiff’s ownership transfer to transfer ownership of 286/609 shares. The said decision became final and conclusive around that time. The Defendant completed the registration of the transfer of ownership in its name as to 323/609 shares out of the instant land pursuant to the foregoing appellate court’s decision.

3. Based on the ownership of the instant land for the following reasons, the lower court rejected the Plaintiff’s claim seeking the registration of full transfer of shares in the Defendant’s name, the registration of full transfer of shares in the Defendant’s name, and the cancellation of the registration of establishment of neighboring mortgage, as well as the registration of full transfer of shares in the designated parties based on the ownership of the instant land.

A. Of the previous three parcels of land of this case, a total of 323 square meters was replaced by the land of this case according to the relocation announcement of this case.

B. Since land secured by the authorities in recompense for development outlay is determined in advance in a land substitution plan or management and disposal plan and the ownership of the project implementer, etc. is determined only when the land substitution disposition is publicly announced or the sale disposition is publicly announced, acquisition of land secured by the authorities in recompense for development outlay, etc., which is not stipulated in the land substitution plan or management and disposal plan, cannot be made. Rather, the land in this case including the land in this case is not stipulated in the land substitution disposition plan in advance as land secured by the authorities in recompense for development outlay, etc., and the project site including the land in this case is divided into land for sale, road, facility, green

C. Article 55(1) of the former Act does not require that a new land or a building substituted for the previous land or a building be sold to the association members as a result of the implementation of an urban improvement project, but also applies to a case where the owner of a new land or a building substituted for the previous land or a building is the association and becomes the land allotted by the authorities in recompense for development outlay or reserved land, such as a new building, etc. (see Supreme Court Order 2013Ma325, May 6, 2013). Thus, as alleged by the Plaintiff, Article 55(1) of the former Act applies even if the instant land is a land allotted by the authorities in recompense for development outlay or reserved land reverted to the non-party association, and thus, the right based on the registration of the entry of the decision on commencing the auction of the previous three lots of land of this case shall

4. However, examining the above facts in light of the legal principles as seen earlier, the following determination is possible.

A. Since the land of this case is a land secured by the recompense for development outlay which was newly created by the management and disposal plan of this case and the transfer announcement, there cannot be any concept of previous land corresponding thereto, it cannot be deemed land substitution of the previous three lots of land of this case. On July 22, 2006, following the date of the public announcement of the transfer of this case, the non-party association acquired the ownership of this case from the non-party association on July 22, 2006, but the registration of ownership preservation was completed on October 23, 2006, the plaintiff should be deemed to have transferred the ownership to the plaintiff by completing the registration of ownership transfer under the name of the plaintiff on the same day. In addition, under the interpretation of the management and disposal plan of this case and the transfer announcement, the right based on the registration of the entry of the decision of commencing auction of this case

B. The instant management disposition plan and the written notice of transfer are not to substitute the previous land’s ownership land, but to supply the Plaintiff with the new land-owned land, and the registration of the instant order to commence the auction on the previous three lots of land can be deemed to have clearly indicated the intent of the non-party partnership to transfer to the sales facilities created in the part of the housing site. Since the former Act and the former Act on the Development and Improvement of Urban Areas and the former Act only divide the remainder after the application for parcelling-out into reserved land or general subdivision, it cannot be deemed that the legal effect of the instant land is only the same as the term “land allotted by the authorities in recompense for development outlay” in the management disposition plan. Furthermore, since the instant land is not created as a substitute for the previous land, it is not a subject of Article 55(1) of the former Act. The Supreme Court Order 2013Ma325 Decided May 6, 2013, which was invoked by the lower court, is inappropriate to apply the instant case to the instant land as it is inappropriate for the owner of the previous land or a new building.

D. Of the instant management and disposition plan, the instant land is indicated as the reserved land for replotting for the previous three parcels of land in the instant case. However, the instant land is clearly indicated as the reserved land for replotting, but the land owner may temporarily use and profit from the land determined as substitute land under the replotting plan until the replotting disposition is publicly announced, while the previous land cannot be used and profit-making therefrom is merely a disposition that makes the owner of the land impossible to use and profit-making, and if the land becomes effective after the date of public announcement of the replotting disposition, the disposition of the reserved land for replotting becomes invalid (referring to Supreme Court Decisions 2017Du70946 Decided March 29, 2018; 926873 Decided October 8, 199, etc.). As such, the instant land in the written public announcement of the relocation of the instant land clearly stated that “the ownership belongs to the Plaintiff regardless of the previous three parcels of land in this case as the reserved land for replotting,” it cannot be deemed as the land in this case’s previous three parcels of land.

E. The non-party partnership sold 609 square meters of the land scheduled to be designated as the land of this case in the future to the Plaintiff for sale and appropriated for the redevelopment project expenses. However, the non-party partnership sold the previous three parcels of land, including the previous three parcels of land located in the physical location of the land of this case, and disposed of the designation of the land scheduled to be substituted by the land of this case, which is the previous three parcels of land located in the physical location of the land of this case, thereby allowing the sale of the land of this case as the land scheduled to be secured by the development recompense land before

5. Ultimately, Defendant’s registration of full share transfer and registration of full share transfer of the designated parties based thereon, and registration of entire share transfer and registration of establishment of a mortgage on March 28, 2014, should be deemed as having effect without cause. Nevertheless, the judgment of the court below that rejected Plaintiff’s claim on the ground that the Defendant’s registration of full share transfer is valid, is erroneous in the misapprehension of legal principles as to the validity of the management and disposal plan and notification of transfer under the former Act on the Improvement of Urban Areas and Dwelling Conditions for Residents, thereby adversely affecting the conclusion of the judgment. The ground of appeal pointing this out is with merit.

6. Therefore, the original judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok

Justices Ansan-chul

Justices Kim Jong-hwan