Plaintiff 1 and two others (Law Firm Best, Attorneys Shin Young-cheon et al., Counsel for the plaintiff-appellant)

Large Two District Housing Redevelopment and Improvement Project Association (Law Firm Lee & Lee, Attorneys Park Jong-soo et al., Counsel for the plaintiff-appellant)

December 9, 2016

Busan District Court Decision 2015Guhap1947 Decided August 18, 2016

1. The plaintiffs' appeal is dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

1. Purport of claim

The defendant shall pay to the plaintiff 1 46,884,930 won, 18,765,900 won, 36,281,950 won to the plaintiff 3, and 5% per annum from December 9, 2014 to August 18, 2016, and 15% per annum from the next day to the date of full payment.

2. Purport of appeal

Of the judgment of the first instance court, the part against the plaintiffs falling under the part ordering additional payment is revoked. The defendant shall pay to plaintiffs 1 1 17,929,910 won, 8,049,400 won to plaintiffs 2, 12,281,200 won, and 5% per annum from December 9, 2014 to August 18, 2016, and 15% per annum from the next day to the date of full payment.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation on this case is as follows, except for the addition of the decision by the plaintiffs to the second instance, and therefore, it is consistent with the reasoning for the first instance court's decision. Thus, it is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Additional determination

A. The plaintiffs' assertion

Since the first project implementation plan approved by the defendant from the head of the Nam-gu Busan Metropolitan City on August 16, 2007 is invalid or its validity has ceased after obtaining authorization for the change of the project implementation on October 19, 2012, the compensation price should be calculated on the basis of the officially announced value of January 1, 2012, which is close to October 24, 2012, the date of public notice for the change of the project implementation.

B. Determination

1) Whether the initial project implementation plan is invalid or not

A) Relevant legal principles

According to the provisions and purport of the relevant Acts and subordinate statutes including the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”) and the Enforcement Decree of the same Act, the Act only stipulates that the consent shall be made before the application for approval of the project implementation plan is made, and the method of consent and quorum shall be governed by autonomous law by the articles of association, etc. Thus, if consent was made before the contents of the project implementation plan are confirmed, it can be deemed that the purport of delegation is included in the association about the preparation of the specific project implementation plan, and such consent cannot be deemed unlawful merely because it can be deemed that the consent was made. In light of the purport of Article 17 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”) and Article 28(1)5 of the Enforcement Decree of the same Act, even if the contents of the project implementation plan were modified after the consent of the project implementation plan, it cannot be deemed that the consent was invalidated even if it was not changed after the approval of the establishment of the association (see Supreme Court Decision 20127Da1327, supra.

B) Determination on the instant case

A. According to the purport of the entire pleadings at Gap evidence 10-1, 2, 5, 7 through 10, 14 through 17, and 11-1, the committee’s consent for establishment was commenced on September 15, 200 to establish the committee from around September 13, 203. Since around December 13, 203, the consent for establishment and the consent for the first project implementation was also received. The consent of the owner of the land and ownership status and the first consent for the project implementation of the 3.0-year housing association’s first consent for the project implementation of the redevelopment zone’s 20-year housing association’s first consent for the project implementation of the redevelopment zone’s 7.5-year housing association’s first consent for the project implementation of the redevelopment zone’s 6.5-year housing association’s first consent for the implementation of the project within the redevelopment zone’s right under the provisions of Article 28 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents.

In light of the above legal principles, even if the cost of improvement project was increased compared to what was scheduled at the time when the initial association establishment consent was obtained, and the outline of building design was changed, such circumstance alone does not necessarily mean that the approval of the initial project implementation plan and the initial project implementation plan were unlawful. Meanwhile, even if the defendant did not notify the union members that he could withdraw the existing consent along with the contents of the changed project implementation plan before the approval of the initial project implementation plan, according to the above facts of recognition, it is reasonable to deem that the change of the project implementation plan was delegated to the defendant because it stated that the consent to the change of the project implementation plan after the approval of the establishment consent was made, and such defect is serious and clear, and thus, the initial project implementation plan is

(ii) the base point of time for the officially announced land price;

For the following reasons, even if the main part of the project implementation plan is substantially changed and the validity of the first project implementation plan is lost, the "project approval date" under Article 70 (4) of the Land Compensation Act shall be deemed the "date of the first project implementation plan approval".

A) Articles 38, 40(1), and 40(2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents may acquire or use land, goods, or other rights under Article 2 of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (hereinafter “Land Compensation Act”), and except as otherwise expressly provided, the Land Compensation Act shall apply mutatis mutandis to the expropriation or use of land or buildings for the implementation of a rearrangement project and other rights in an improvement zone. In applying the Land Compensation Act, project approval and the announcement thereof shall be deemed to have been made under the Land Compensation Act. Meanwhile, even if the first project implementation plan becomes null and void due to a substantial change in the area, number, area, etc. of multi-family housing corresponding to the main part of the first project implementation plan, even if the first project implementation plan becomes null and void as of the time of change of the project implementation plan (see Supreme Court Decision 2014Du1528, Nov. 26, 2015).

B) Article 67(1) and (2) of the Land Compensation Act provides that the calculation of compensation amount by an adjudication shall be based on the price at the time of expropriation or use adjudication; however, in the case of calculating compensation amount, it shall not be considered when the price of land, etc. is changed due to the relevant public works. In the case of acquisition after the project approval due to the method of calculating compensation amount, the method of calculating compensation amount is the officially announced land price which is the basic date prior to the public announcement date of the project approval, and is the officially announced land price which is the same as the publicly announced land price at the same time as the publicly announced land price at the time of the public announcement of the project approval; however, the compensation shall be made based on the publicly announced land price at the same time as the publicly announced land price at the time of the public announcement of the project approval, among the officially announced land price at the time of the public announcement of the project approval; the plan to use the land from the basic date to the date of the public announcement of the project approval

The purpose of the Land Compensation Act is to exclude the change in the price of land and land adjacent to a project after the public announcement of the project approval, as the development gains from the public project can be included in the change in the price of land subject to the project after the public announcement of the project approval, and the public announcement of the changed project approval is likely to include the development gains from the public announcement of the land subject to the project.

Meanwhile, the Plaintiffs asserted to the effect that it is unfair to exclude the project from the appraisal of land from the increase in general real estate price due to the change of the project implementation plan and the neglect of a long-term period. However, according to the provisions of the Land Improvement Act as seen earlier, even if based on the officially announced price as of the date of the first public announcement of the authorization of the implementation plan, the starting point of the expropriation decision, which is the base point for calculating the amount of compensation, can be applied by utilizing

3. Conclusion

Therefore, the judgment of the first instance court is justifiable, and the plaintiffs' appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-cheon (Presiding Judge)