2. Part of the appeal costs arising from the intervention shall be borne by the participating administrative agency, and the remainder by the defendant.

The conditions attached to the attached list added on February 17, 2010 among the conditions of authorization for implementation of a housing redevelopment project for the plaintiff on October 30, 2007 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

A. The Plaintiff is a housing redevelopment and consolidation project association that obtained authorization from the Defendant on September 11, 2006 for the purpose of housing redevelopment and rearrangement project for the housing redevelopment of 500 square meters in Seongdong-dong, Seongdong-gu, Seoul for a house redevelopment and rearrangement project for 92,618 square meters.

B. On October 23, 2007, the Defendant: (a) designated the whole project zone as a housing redevelopment project zone under Article 207-86 of the Seongdong-gu Seoul Metropolitan Government Notice on October 23, 2007; (b) designated the project implementation authorization on October 30, 2007 to the Plaintiff; and (c) accordingly, the maintenance infrastructure newly installed shall include a park (2,718.46 square meters), a road (9,112.95 square meters), a green area (3,361.10 square meters), a public office building (Dong office building, 662.0 square meters), a public office building (facilities, welfare facilities, and 20,196.93 square meters in total; (b) the list of State and public property transferred without compensation is as listed below; and (c) the area of land to be transferred without compensation shall be included in the content that it conforms to the relevant laws by reviewing the status of the cadastral status and attached documents.

The Si/Gun/Gu maintained on September 21, 2012-6, 214-9, 2513-27, 91.91.91.91.91, 3520, 3520-36, 16.34, 43.4, 4520-41, 21.21.21, 21.21, 21.21, 21.21, 201, 4520-41, 4520-41, 21.21, 21.

C. On March 7, 2008, the Defendant notified the Plaintiff of the response of free transfer consultation within the business area, and the details are as follows.

The current status of State-owned and public land located in the main sentence (public land), the land category (land category) area (land size) located in the project zone (land size) located in the office in charge of managing public land within the main sentence, and the appraised value subject to free transfer (land size) shall be 12,925.24, 869.8.45.09, 284.717, 495-17 and 52 lots of land located in Seongdong-gu, 18,929.18, 929.5, 18, 7529.24, 74, 75, 75, 752, 75, 752, 752, 234, 757, 7572, 360, 757, 165, 2365, 257, 2536, 257, 257, 1965, 25365, 275

3. 20-36 39.444 10,234,200 21.21.21, 520-40 31.21, 520 512-06, 512-03, 514.36 20. 7. 36. 36. 48-27. 36. 27. 36. 48. 46. 7. 27. 36. 46. 1. 9. 5, 207. 1. 9. 95, 442. 1. 5, 207. 19, 207. 46. 7. 36. 1. 75, 207. 46. 27. 5, 207. 48. 5, 207. 5, 507- 5. 18. 4. 65 3

- 3. 28. 28. 2, 42, 977. 2, 977, 977. 12, 963, 97. 47. 2, 977, 57. 47. 97, 577. 97, 57. 97. 47. 12,99, 99, 902, 238-6, 2395. 97. 47. 97, 297, 57. 97, 297, 257. 97, 297, 257. 47, 257, 297, 36. 57, 197, 257, 296. 45,25. 165,257,256. 24,205. 3

D. On July 2, 2008, the Defendant notified the Plaintiff of the result of gratuitous transfer re-consultation within the pertinent business area, and the content is as follows.

▣ 무상양도금액

(1) All changes: 709,979,650 square meters (43.53 square meters)

Shebly: 2,260,103,410 square meters (1,122.43 square meters)

- Gratuitous transferred amount = (Free Reversion - Amount for calculation of incentives for floor area ratio)

- 2,260,103,410 = 46,103,133,222 - 43,843,029,812 won

The current status of State-owned and public land located in the main sentence (public land), the land category and area (land size) of the project zone (land size) located in the office in charge of managing the state-owned and public land located in the main sentence, shall be 12,925.24, 869.8 45.09, 284, 284.717, 05-17, Seongdong-dong 495-17 and 52 lots of land located in Seongdong-gu, 18,929,52,52, 18,95-18, 18, 929.5, 8618, 168, 984, 984, 160, 235, 165, 265, 265, 205, 265, 265, 205, 265, 267, 2615, 2765, 2015, 265

2. 20-36 39.444, 39.441, 520, 520-42, 512-03, 512-06, 514.21.21.21, 520-40, Seoul 512-06, 512-06, 214.36. 20, 207. 36. 20, 207. 46. 7. 27. 48-27. 48. 5, 207. 1. 9. 9, 45, 207. 20, 207. 46. 7. 8. 5, 207. 1. 9, 4207, 513-27. 5, 209, 509, 509, 1, 306. 8. 28. 4, 25

- 28. 28. 12, 36. 2, 977, 207, 36. 16. 7, 47. 2, 977, 207, 47. 977, 36. 47. 97, 57. 27. 977, 57. 47. 12,99, 99, 902, 238-6, 2395. 97, 236. 97, 57. 47, 297, 297, 57. 47, 257, 297, 36. 57, 297, 515, 498-16. 37,257,255. 204,257,256. 47,27. 1965,25

As the plaintiff asserts that the conditions of authorization such as the above notification are unfair, the plaintiff filed a lawsuit for partial cancellation of the disposition of approval for the redevelopment of housing as Seoul Administrative Court 2008Guhap39097, and won a favorable judgment on April 2, 2009, and the appellate court rendered a judgment dismissing the defendant's appeal, and the appellate court rendered a judgment dismissing the defendant's appeal on October 29, 2009 in the Supreme Court Decision 2009Du14279, which is the final appeal court, the defendant's dismissal of appeal became final and conclusive.

E. After the judgment became final and conclusive, on February 17, 2010, the Defendant notified the Plaintiff of the same conditions of authorization as indicated in the attached Form (hereinafter “instant conditions of authorization”) with regard to the gratuitous transfer of State and public property. According to such provision, the Defendant shall be deemed to have abolished the use of state and public land included in the rearrangement infrastructure newly installed in the cost of KRW 46,103,133,222 for the installation of the rearrangement infrastructure. According to Articles 6, 27, and 40 of the State Property Act, the State and public land, which is the site of the rearrangement infrastructure, cannot be disposed of arbitrarily, as administrative property, and thus, can be disposed of. Accordingly, it shall be deemed that the State and public land included in the rearrangement project zone is disused on the date of the public announcement of project implementation approval, and the use of the remaining term of disuse is inappropriate for the Plaintiff’s free-of-charge transfer value of 36,105,157,157 and 2815.

F. On October 22, 2008, prior to being notified by the Defendant of the instant authorization terms, the Plaintiff purchased 4,066.36 square meters from the Seongdong-gu Seoul Metropolitan Government to KRW 13,451,851,90 of the land on 10 lots, including 110.00 square meters of a road 238-9, Seongdong-gu, Seongdong-gu, Seoul. On the same day, the Plaintiff purchased 16,79.437 square meters from Seongdong-gu Seoul Metropolitan Government to KRW 41,340,151,310 of the land on 60 lots, including 496-04, Seongdong-gu, Seoul, Seongdong-gu, Seoul, for 41,340,00 square meters, among 31.3 square meters of a road 41,525-10,000 square meters.

In addition, on March 4, 2010, the Plaintiff purchased 3.44 square meters among 166.3 square meters from the State (the Ministry of Planning and Finance) in Seongdong-gu, Seoul, for 10,320,000 square meters among 520-3 square meters of land, Seongdong-gu, Seoul. On the same day, the Plaintiff purchased 18.8 square meters among 520-39 square meters of land, 21.9 square meters of land, 520-41, Seongdong-gu, Seoul, Seoul, for 65,726,800 square meters, and purchased 8,206.04 square meters among 45 square meters of land, such as 45 square meters of land, 496-4, 31.3 square meters of land, from Seongdong-gu, Seongdong-gu, Seoul, Seoul, for 18,05,755,450 won.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 11, 13, 14, 15 (including each number), Eul evidence No. 3, the purport of the whole pleadings

2. Whether the authorization conditions of this case are lawful

A. The parties' assertion

The court's reasoning for this part is as stated in Article 2-A of the reasoning of the judgment of the first instance except for the second instance court's 14th "Article 85 (5) of the National Accounting Act" to "Article 88 (5) of the National Accounting Act". Thus, this Court shall accept it as it is in accordance with Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

B. Relevant statutes

The reason why this Court shall explain this part is as stated in Section 2-b (b) of the reasoning of the judgment of the first instance except for the addition of each provision stated in the attached Form of the judgment of the first instance to the "related Acts and subordinate statutes" of the attached Form of the judgment.

C. Determination

(1) First, we examine whether Article 88(5) of the Do Government Act and Article 97(6)6 of the Enforcement Decree thereof apply to a rearrangement project under the Do Government Act.

Article 97 of the Enforcement Decree of the National Housing Act is a provision related to Chapter VII of the National Housing Act related to the implementation of an urban planning facility project. Article 2 Subparag. 11 of the National Housing Act defines an urban planning project and divides it into an urban development project under the Urban Development Act and an improvement project under the Do Government Act, and it cannot be readily concluded that the Enforcement Decree related to an urban planning facility project under the National Housing Act is applied to an improvement project under the Do Government Act. ② Since the Do Government Act was enacted for the purpose of systematically improving areas in need of restoration of urban functions or residential environment and prescribing matters necessary for the efficient improvement of old and inferior buildings, it is difficult to view the said improvement project as the same as its purpose and function, ③ The time of appraisal of the value of new infrastructure for rearrangement and existing infrastructure is determined at the time of the project implementation authorization and without compensation to the project implementer within the scope of the new project implementation authorization under Article 65(4) and Article 41(2)1 of the Enforcement Decree of the National Housing Act.

(2) Next, we examine the defendant's argument that the authorization conditions of this case were legitimate because the plaintiff's option included duplicate land in the business area and obtained benefits such as relaxing the building-to-land ratio.

The latter part of Article 65(2) of the Do Government Act takes into account the project implementer’s property loss incurred by a private project implementer when the infrastructure newly installed by the private project implementer gratuitously reverts to the management authority in accordance with the former part of Article 65(2) of the Do Government Act, taking into account that the project implementer’s legislative intent is to gratuitously transfer the infrastructure for rearrangement owned by the State or a local government, which is ceased to be used by the implementation of a rearrangement project within the extent equivalent to the installation cost of the newly installed infrastructure to the extent that the project implementer would compensate the project implementer for its property loss within the reasonable scope, the latter part of Article 65(2) of the Do Government Act is a mandatory provision that forces a private project implementer to gratuitously transfer the infrastructure for rearrangement to be ceased to be used within the extent equivalent to the installation cost of the newly installed infrastructure for rearrangement to the extent equivalent to the cost of installation of the infrastructure for rearrangement (see Supreme Court Decision 2007Du14312, Dec. 11, 2008).

Therefore, it cannot be deemed lawful solely on the ground that the Plaintiff obtained benefits, such as relaxing the building-to-land ratio, etc.

(3) Furthermore, in calculating the installation cost of a new infrastructure, such as the instant authorization condition, it is reasonable to deduct the value of overlapping land from the cost of installation of a new infrastructure.

(A) ① With the Defendant’s project implementation approval on October 30, 2007, the Defendant: (a) had the Plaintiff install 9,12.95 square meters on a road; (b) 3,361.10 square meters on a green-belt 2,000; (c) notified the Plaintiff of the purchase of 30 square meters on a 20-20-5 square meters on a 20-20-5 square meters on a 25-20-6-12-6 site; and (d) decided to re-consultation 48.53 square meters on a 20-5-20-6 site on a 20-7-10-2 basis; and (c) to install the remaining 15-20-7 square meters on a 20-7-20-20-6 site on a 25-24-20-6 site on a 20-7-17-2222222 basis; and (d) to install the 17945-3-1-2-2-22222222.

(B) However, in accordance with the latter part of Article 65(2) of the Do Government Act, the term “infrastructure for maintenance owned by the State or a local government, the purpose of which is ceased to exist due to the implementation of a rearrangement project,” means the infrastructure owned by the State or a local government, which has already been established by an urban management plan under the National Urban Management Planning Act, prior to the authorization of the implementation of a rearrangement project (see Supreme Court Decision 2007Du24289, Nov. 27, 2008). In light of the former part of the same paragraph, the part which was previously an infrastructure for maintenance, but was abolished due to the implementation of a rearrangement project, which became an infrastructure for maintenance, is a newly installed infrastructure, and thus, the overlapping land and its ground facilities cannot be included in the infrastructure to be transferred to the project implementer

(C) Due to the characteristics of a rearrangement project undertaken for a certain region, the existing fundamental infrastructure is inevitably abolished and substituted for the installation of new fundamental infrastructure. Accordingly, Article 65 of the Do administration Act provides for the mutual response relationship between the disused fundamental infrastructure and the newly installed fundamental infrastructure and the change of ownership (the Constitutional Court Order 2007HunBa80, 81, 106, 2009Hun-Ba5, May 28, 2009). The latter part of Article 65(2) of the Do administration Act provides that the new fundamental infrastructure shall be transferred to the project implementer without compensation within the scope equivalent to the installation cost of the newly installed fundamental infrastructure to the project implementer under the former part of the said provision and the new fundamental infrastructure shall be deemed to have been transferred to the project implementer without compensation within the scope of the newly installed fundamental infrastructure, and the latter part of Article 65(2) of the Do administration Act provides that the same provision shall be construed and applied to the project implementer without compensation within the same extent as the former part of the said provision provides for the same purpose.

(D) Meanwhile, according to the Do Government Act, when a project implementer intends to implement a rearrangement project, it shall prepare the project implementation plan and obtain authorization from the competent authorities. The project implementation plan shall be accompanied by the protocol, drawing, appraisal report, and appraisal report, drawing, and installation cost bill of at least two appraisal business entities (Articles 28(1), 65(4), and 66(3) and (4) of the Do Government Act). As such, at the time of project implementation authorization, the term “existing fundamental facilities and their value” and “new fundamental facilities and their value” are specified both at the time of project implementation authorization, and the object and value of the State-owned or public land to be purchased by the project implementer is also determined. In addition, according to the appraisal statement and statement of installation cost, the portion of the rearrangement infrastructure newly installed and transferred to the State or local government without compensation and the part of the project implementer may be purchased with compensation to the project implementer, which has been abolished for use as the existing fundamental infrastructure.

(E) In addition, the overlapping land and its price claimed by the Defendant that the cost should not be included in the installation cost of the fundamental infrastructure newly installed are as indicated below (Evidence A No. 12-2), and as seen earlier, the Plaintiff purchased part of the land in the above project site from the State, the Seoul Special Metropolitan City, etc. for a fee. On October 22, 2008, most of the overlapping land owned by Seongdong-gu and a considerable number of the land owned by Seongdong-gu Seoul Special Metropolitan City.

본문내 포함된 표 연번 소재지 지목 면적(㎡) 평가액(원) 소유자 공부상 편입 전체 합계 5,831.40 15,115,563,050 1 525-1 도로 123.70 123.70 116,278,000 건교부 2 526-20 도로 1,389.60 10.80 21,600,000 건교부 3 526-20 도로 1,389.60 52.90 105,800,000 건교부 소계 187.40 243,678,000 1 497-14 도로 81.00 45.30 126.387,000 서울시 2 506-2 도로 1,732.20 346.30 720,304,000 서울시 3 506-2 도로 1,732.20 78.90 164,112,000 서울시 4 506-2 도로 1,732.20 260.80 542,464,000 서울시 5 517-24 도로 2,805.30 174.95 560,714,750 서울시 6 517-24 도로 2,805.30 73.05 234,125,250 서울시 7 518-48 도로 6.6 6.6 7,755,000 서울시 8 552 도로 7,712.30 261.50 815,880,000 서울시 9 552 도로 7,712.30 14.20 44,304,000 서울시 10 552 도로 7,712.30 409.20 1,276,704,000 서울시 11 552 도로 7,712.30 211.10 658,632,000 서울시 소계 1,881.90 5,151,382,000 1 495-17 도로 60.50 8.80 8,236,800 성동구 2 498-16 도로 794.50 599.20 1,869,504,000 성동구 3 498-16 도로 794.50 3.10 9,672,000 성동구 4 498-17 도로 1,012.20 156.40 316,710,000 성동구 5 501-8 도로 1,336.20 164.00 347,680,000 성동구 6 507-6 도로 16.00 0.50 477,750 성동구 7 507-18 도로 461.60 461.60 923,200,000 성동구 8 514-32 도로 883.50 15.80 35,471,000 성동구 9 515-5 도로 35.60 1.00 1,025,000 성동구 10 515-5 도로 35.60 8.40 8,610,000 성동구 11 515-14 도로 1,179.00 236.80 531,616,000 성동구 12 515-14 도로 1,179.00 3.20 7,184,000 성동구 13 515-14 도로 1,179.00 100.10 224,724,500 성동구 14 517-40 도로 2,043.70 1,285.20 3,515,022,000 성동구 15 517-40 도로 2,043.70 623.60 1,705,546,000 성동구 16 517-40 도로 2,043.70 51.40 140,579,000 성동구 17 518-25 도로 18.90 14.80 14,615,000 성동구 18 518-33 도로 286.30 28.20 60,630,000 성동구 소계 3,762.10 9,720,503,050

(f) As above, the Defendant’s assertion that the price of the overlapping land, which was included in the land purchased by the Plaintiff from Seoul Special Metropolitan City, etc., should be deducted from the “construction cost of the newly installed fundamental infrastructure” under the latter part of Article 65(2) of the Do administration Act is without merit.

(4) The theory of lawsuit

Ultimately, unlike the provisions of the latter part of Article 65 (2) of the Do administration Act, which is a mandatory provision, it is impossible to allow the plaintiff to purchase the new condition of the authorization in this case by excluding the object of free transfer of fundamental infrastructure whose use is abolished as an amount equivalent to the value of the new installation cost of fundamental infrastructure, as it is equivalent to the double-use land. Therefore, the conditions of the authorization in this case are unlawful, and

3. Conclusion

If so, the plaintiff's claim is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.

[Attachment]

Judges Cho Jong-ho (Presiding Judge)