(영문) 부산지방법원 2016.9.29.선고 2016가합40227 판결

1. Defendant Republic of Korea shall pay to the Plaintiff 1,023,98,00 won and 614,088,140 won among them, 409,909,860 won, 5% per annum from August 8, 2015 to February 1, 2016, and 15% per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims against the defendant Korea and the defendant Korea Asset Management Corporation are dismissed, respectively.

3. Of the litigation costs, the part arising between the Plaintiff and the Defendant Republic of Korea shall be borne by the Defendant Republic of Korea, and the part arising between the Plaintiff and Defendant Korea

4. Paragraph 1 can be provisionally executed.

Purport of claim

Defendant, Korea, or Defendant Korea Asset Management Corporation shall pay to the Plaintiff the amount of KRW 1,023,98,00 and KRW 614,08,140 among them, the amount of money calculated at the rate of 15% per annum from October 23, 2015 to the date of full payment from August 8, 2015 to the date of full payment.

Reasons

1. Basic facts

A. Status of the parties

(1) The Korea Land Corporation (the Korea Land Corporation and the Korea Land Corporation under the Korea Land and Housing Corporation on October 1, 2009; hereinafter referred to as the "Plaintiff, including the plaintiff, was partially amended by Act No. 8859 of Feb. 29, 2008) is an implementer of a development project of a designated district in Busan/Seoul Free Economic Zone (hereinafter referred to as the "project in this case") designated as a free economic zone in accordance with the former Act on Designation and Management of Free Economic Zones (the name was changed to the "Special Act on Designation and Management of Free Economic Zones").

(2) The Defendant Korea Asset Management Corporation is a person entrusted with the management of each of the lands listed in the separate sheet of real estate owned by the Defendant Republic of Korea (hereinafter “each of the instant lands”). Article 42(1) of the State Property Act and Article 38(3) of the former Enforcement Decree of the State Property Act (amended by Presidential Decree No. 27128, May 10, 2016).

B. On December 31, 2008, the Minister of Knowledge Economy approved the modification of the development plan and implementation plan of the zone for the zone for the name of the economic region in Busan and Jinhae (hereinafter referred to as the "approval of this case") that was changed and announced to the Ministry of Knowledge Economy No. 2004-14 ( September 2, 2004) and No. 2008-9 ( February 28, 2008) with respect to the project of this case on December 31, 2008 (hereinafter referred to as the "approval of this case"), and publicly announced by the Ministry of Knowledge Economy No. 2008-230. Free reversion consultation and commercial reversion of each land of this case.

(1) In around 2015, the Plaintiff requested Defendant Korea Asset Management Corporation to gratuitously revert each of the instant lands to Defendant Korea under Article 9-4 of the former Act on Designation and Management of Free Economic Zones (wholly amended by Act No. 9366, Jan. 30, 2009; hereinafter “former Free Economic Zone Act”). However, Defendant Korea Asset Management Corporation responded that each of the instant lands constitutes general property under the State Property Act and thus it is impossible to gratuitously revert.

(2) On August 7, 2015, the Plaintiff concluded a sales contract for the land listed in the table Nos. 1,2,4, and 5 attached hereto with Defendant and the Republic of Korea on August 7, 2015, and paid 409,909,860 won as compensation. On October 6, 2015, the Plaintiff completed the registration of ownership transfer based on the acquisition of public land for each of the above land. In addition, on October 22, 2015, the Plaintiff concluded a sales contract for the remaining land except for the land listed in table Nos. 1, 2, 4, and 5 attached hereto with Defendant Republic of Korea, and completed the registration of ownership transfer based on the acquisition of the public land on November 12, 2015.

D. Installation of public facilities by the plaintiff

On the other hand, the Plaintiff installed a road, park, green area, plaza, etc., which is a new public facility within the instant project zone.

E. Relevant statutes

The statutes related to the claim of this case are as shown in the attached Form.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 5 through 17 (including virtual numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. The parties' assertion

A. The Plaintiff and the instant land are “a subordinate public facility prescribed as an object of gratuitous reversion” under Article 65(1) of the former National Land Planning and Utilization Act (amended by Act No. 11922, Jul. 16, 2013; hereinafter “former National Land Planning Act”) which applies mutatis mutandis under Article 9-4 of the former Free Economic Zone Act, and should be reverted to the Plaintiff, who is the project executor of the instant project. However, even when the Plaintiff completed the consultation with the Public Procurement Service, etc., the competent authority at the time, the Defendant Asset Management Corporation refused the Plaintiff’s request for gratuitous reversion. The Plaintiff concluded a sales contract for each of the instant land with the Defendant Republic of Korea, and incurred a loss of KRW 1,023,98,000 in total as compensation. Accordingly, the Defendant Korea Asset Management Corporation, which received general property related to disposal under the jurisdiction of the office of general property that has already been disposed of pursuant to the State Property Act, shall return it to the Plaintiff as unjust enrichment.

B. Since there was no Defendants’ commencement of the public use of each of the instant land, each of the instant land does not constitute “the first public facilities subject to gratuitous reversion as stipulated in Article 65(1) of the former National Land Planning and Utilization Act, since each of the instant land cannot be deemed public property under the State Property Act.”

3. Determination on the claim against Defendant Republic of Korea

A. Whether each of the instant lands constitutes an existing public facility subject to gratuitous reversion (1) relevant legal principles

Article 25(1) of the former Housing Site Development Promotion Act (amended by Act No. 5688 of Jan. 25, 1999) and Article 83(1) of the former Urban Planning Act (amended by Act No. 6243 of Jan. 28, 200) shall be deemed public facilities to be property for public purposes under the State Property Act and the Local Finance Act. In addition, whether a housing site development project implementation plan is the existing public facilities to be gratuitously reverted to a person who has obtained approval of the implementation plan for the housing site development project shall be determined at the time of approval for the implementation plan for the housing site development project. However, even if the actual use status of public facilities differs from that of the previous public facilities at the time of approval, if the management agency has managed the previous public facilities as property for public purposes under the State Property Act or the Local Finance Act, the existing public facilities still gratuitously reverted to the project implementer (see Supreme Court Decision 2002Da59863, May 28, 2004).

According to Article 25 of the Housing Site Development Promotion Act and Article 65 of the former National Land Planning and Utilization Act, where a facility replacing the existing public facility is installed by implementing a housing site development project, the existing public facility shall be reverted to the project implementer without compensation. Here, the existing public facility subject to gratuitous reversion shall include administrative property under the State Property Act, and whether it is the previous public facility subject to gratuitous reversion shall be determined at the time of approval of the implementation plan for the housing site development project. Thus, in order to constitute an existing public facility subject to gratuitous reversion, an administrative property must be deemed an administrative property before the approval of the implementation plan for the housing site development project is obtained. However, administrative property under the State Property Act refers to a property owned by the State as a property for direct public use, public use, or corporate use (see Article 6(2) of the State Property Act), and an administrative property shall be deemed an administrative property only when it is designated by a statute or determined to be used for public use as an administrative disposition (see, e.g., Supreme Court Decision 2015Da25524, May 125).

Such a legal principle also applies to determining the scope of the existing public facilities to be gratuitously reverted to a project implementer pursuant to Article 9-4 of the former Free Economic Zone Act which applies mutatis mutandis Article 65 (1) of the former National Land Planning Act.

(2) Determination

In light of the aforementioned legal principles, in light of the facts without dispute, the entries in Gap evidence 3 through 10, the fact-finding results with respect to the Public Procurement Service of this Court, and the following circumstances that can be acknowledged by comprehensively taking into account the overall purport of the arguments, it is reasonable to view that each of the instant land under Article 9-4 of the Free Economic Zone Act, Article 65 (1) of the former National Land Planning and Utilization Act, and Article 19 (4) of the former Korea Land Corporation Act (amended by Act No. 9706 of May 22, 2009) is the previous public facilities that should be gratuitously reverted to the plaintiff, who

① Since each of the instant lands appears to have been actually used as administrative property, such as roads, ditches, conduits, banks, etc. prior to the approval of the instant case, such as roads, ditches, and banks, as stated in the list column of real estate in the attached Form No. 3, (Article 22 of the evidence No. 3-2 does not survey the current status of the land indicated in the attached Table No. 22, however, considering the overall purport of entry and pleading No. 9, it may be recognized that the said land was used as ditches). Even if each of the instant lands was neither designated by statutes nor determined for public use as administrative disposition under the State Property Act, it constitutes administrative property under the State Property Act, and is deemed to be the previous public property under Article 9-4 of

② The legislative intent of Article 9-4 of the former Free Economic Zone Act and Article 65(1) of the former National Land Planning Act, which prescribes the gratuitous reversion of the existing public facilities, is to prevent difficulties in managing the existing public facilities managed by the management authority and the public facilities newly installed by the project implementer from being owned by the management authority and the project implementer, to facilitate the prevention of economic loss and the convenience in procedures for exchange due to exchange of both facilities, to prevent double benefit that all the management authority own, to which public facilities newly installed and the existing public facilities belong, and to enable the project implementer to smoothly implement the project by receiving the gratuitous reversion of the existing public facilities. Such legislative intent is to be applied to the extent that the existing public facilities are actually being used as property for public purposes even if they were not designated by the Acts and subordinate statutes or determined to be used for

③ The Defendants asserted that, on the basis of the Supreme Court Decision 2010Du22498 Decided February 24, 2011, the public-use start-up as a public-use property under the State Property Act may constitute the previous public-use property. However, the above decision cannot be directly applied to this case as it is decided on the scope of fundamental infrastructure to be transferred gratuitously to the project implementer pursuant to Article 65(2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents.

B. Establishment of claim for restitution of unjust enrichment

(1) Relevant legal principles

A road, ditch, etc. falling under the previous public facilities as at the time of approval for an industrial complex development project implementation plan is gratuitously reverted to a project operator, which is a change in real rights under the provisions of Acts at the time of completion of the project, and the project operator originally acquires the previous public facilities. If the Korea Land Corporation has paid a compensation through the procedures for purchase, consultation, and expropriation of land to meet the project schedule by failing to comply with the procedures for consultation on gratuitous reversion of the Korea Land Corporation, which is the project operator, and has acquired the previous public facilities, even if there is no ground for invalidation or revocation in the domestic sales contract and the land expropriation procedure, this would result in the State’s gain equivalent to the amount of compensation without justifiable grounds (see Supreme Court Decision 2007Da36209, Jun. 11, 2009)

(2) Determination

The fact that Defendant Korea Asset Management Corporation entrusted with the management of each of the instant lands by Defendant Republic of Korea did not comply with the Plaintiff’s request for gratuitous reversion on the ground that each of the instant lands was not public facilities, and the Plaintiff purchased each of the instant lands from Defendant Republic of Korea to meet the business schedule and paid the Defendant Republic of Korea the sum of KRW 1,023,98,09,860 on August 7, 2015, and KRW 614,08,088,140 on October 22, 2015, as compensation, KRW 1,023,98,98,00 on the ground that the Plaintiff installed a road, park, green area, or plaza, which is a new public facility within the instant zone. Accordingly, the Defendant Republic of Korea is obligated to return the amount equivalent to the above compensation to the Plaintiff as unjust enrichment, and in light of the process of consultation on gratuitous reversion of each of the instant lands, the process of acquisition of compensation, etc.

Therefore, Defendant Republic of Korea is obligated to pay to the Plaintiff KRW 1,023,98,00 and KRW 614,08,140,140, whichever is the following day for the payment of KRW 409,909,860, the damages for delay calculated at the rate of 5% per annum prescribed by the Civil Act from August 8, 2015 to February 1, 2016, which is the delivery date of a copy of each of the complaint in this case, and the damages for delay calculated at the rate of 15% per annum prescribed by the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the day of full payment (the Plaintiff’s claims for damages for delay exceeding the above recognition scope are rejected).

4. Determination on the claim against Defendant Korea Asset Management Corporation

As seen earlier, the fact that the Plaintiff paid compensation for each of the instant lands in the Republic of Korea by Defendant Korea is the same as that of the foregoing, it cannot be said that Defendant Korea Asset Management Corporation obtained a benefit equivalent to the compensation.

Therefore, the Plaintiff’s claim against Defendant Korea Asset Management Corporation cannot be accepted.

5. Conclusion

If so, the plaintiff's claim against the defendant Republic of Korea is accepted within the above scope of recognition, and the remaining claims are dismissed as it is without merit. The claim against the defendant Korea Asset Management Corporation is dismissed as it is without merit. It is so decided as per Disposition.