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(영문) 대법원 2017.05.11 2015다213933

부당이득금

Text

The judgment below is reversed and the case is remanded to Seoul High Court.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The latter part of Article 65(2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785, Dec. 21, 2007; hereinafter “Urban Improvement Act”) provides that infrastructure owned by the State or a local government, the use of which is ceased due to the implementation of an improvement project, shall be transferred to the project implementer without compensation to the extent equivalent to the installation cost of the newly installed infrastructure. Here, “infrastructure owned by the State or a local government that is gratuitously transferred to the project implementer” refers to the infrastructure owned by the State or a local government, which is already determined by an urban management plan pursuant to the National Land Planning and Utilization Act, prior to the authorization of an improvement project.

(2) Article 33(1), (4)1, and (8) of the former Housing Construction Promotion Act (amended by Act No. 5454, Dec. 13, 1997; hereinafter “Housing Construction Promotion Act”) and Article 83(2) and (4) of the former Urban Planning Act (amended by Act No. 5898, Feb. 8, 1999; hereinafter “Urban Planning Act”), where a business entity, who carries out a housing construction project under the Housing Construction Promotion Act, newly installs public facilities in a business district pursuant to a business plan, such public facilities shall gratuitously belong to the State or a local government by notifying the completion of the housing construction project, and if such approval is obtained, it shall be deemed that urban planning under Article 12 of the Urban Planning Act has been determined with respect to urban planning facilities under the Urban Planning Act.

In addition, according to Article 12 and Article 15 of the Addenda to the National Land Planning and Utilization Act ( February 4, 2002), the former Urban Planning Act.