E. E.S. Corporation (Law Firm Kang, Attorney Lee Dong-soo, Counsel for the defendant-appellant)

Korea Asset Management Corporation (Law Firm Pak, Attorneys Hong Jin-won et al., Counsel for the plaintiff-appellant)

July 21, 201

Seoul Administrative Court Decision 2010Guhap4957 decided October 28, 2010

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

1. Purport of claim

On November 2, 2009, the Defendant imposed a fee of KRW 2,118,025,980 for the usage area of KRW 10,850 square meters out of 753 square meters and 41 square meters (specific details are indicated in the list of the attached land) of Eunpyeong-gu Seoul Metropolitan Government (number 1 omitted), which is imposed on the Plaintiff on November 2, 2009; ② the imposition of KRW 15,147,070 for the indemnity of KRW 34 square meters for the occupied area of KRW 34 square meters in the same (number 2 omitted); ③ the imposition of KRW 98,050 for the indemnity of KRW 32 square meters in the same (number 3 omitted); and ③ the imposition of KRW 32,050 for the occupied area of forest land.

2. Purport of appeal

Of the judgment of the first instance court, the part against the Plaintiff seeking revocation under the following is revoked. The Defendant’s imposition of KRW 2,18,025,980 on the usage fee of KRW 10,850 square meters on November 2, 2009 and KRW 13,580,130 on the usage area of KRW 10,850 square meters (specific details are the same as indicated in the list of the attached land), among the land (number 1 omitted) and 41 square meters (specific details are the same as indicated in the list of the attached land), and the imposition of KRW 15,147,070 on the occupied area of KRW 34,00 square meters on the same (number 2 omitted) shall be revoked.

(3) The plaintiff filed an appeal against the part of the plaintiff's loss without filing an appeal. The scope of the trial of this court is limited to the part that seeks cancellation of the disposition and the part that sought cancellation of the disposition, and the part that sought cancellation of the compensation in excess of 13,580,130 won among the above disposition, and the part that sought cancellation of the compensation in excess of 13,580,130 won among the above disposition.

1. Details of the disposition;

The court's explanation on this part is as stated in Paragraph (1) of the judgment of the court of first instance, except that the list of the attached list of the judgment of the court of first instance cited in Section 8 of the third party of the judgment of the court of first instance added "land size" by lot, added "(number 4 omitted)" in No. 29 to "(number 5 omitted)", and "the land of this case was purchased by consultation" in Section 16 of the judgment of the court of first instance, and "the land of this case was purchased by consultation" in Section 1 of the third party 16 is as stated in Paragraph (1) of the judgment of the court of first instance except that "the land of this case was not disposed of without compensation, and the land was purchased by consultation". Thus, it is acceptable as it is in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Defendant’s assertion as to the disposition of this case

The court's reasoning for this part is as follows: (a) each of the "land of this case" in the 4th 7th 7th , 19, 5th 6th , 16th , and 5th 6th 5th 5th of the judgment of the first instance; and (b) each of the "land of this case" shall be deemed "10,850 square meters of the used area among the land of this case" in the 4th 13th 1st "the actual use situation"; and (c) "the land of this case" in the 6th 1st 6th 1st 6th 1st 2th 2th m "the land of this case" shall be deemed as "the land of this case" and "the land of this case" shall be deemed as "the land of this case" and "the land of this case shall be deemed as "the area of 200 square meters of a river of 240 m22222 m2006th m2004.

(2) Claim as to KRW 13,580,130 of the instant disposition

(2) The instant disposition imposing indemnity against the instant land is unlawful for the following reasons (as seen above, the part exceeding KRW 13,580,130 of the instant disposition and the part concerning the instant disposition ③ was excluded from the scope of the adjudication of the instant court).

(A) Whether a legitimate title has been possessed

According to Article 19(1) of the former Urban Development Act, when the implementation plan of the project of this case is publicly announced, the permission for use and profit-making pursuant to Article 24 of the former State Property Act shall be deemed to have been obtained. Thus, after the public announcement of the approval of the implementation plan of the project of this case, the Plaintiff’s occupation and use of the land of this case cannot be deemed as occupation and use with legitimate title

(B) Applicable legal issues

(2) Even if the land is subject to indemnity, if the implementer of an urban development project uses the State-owned or public land incorporated in the project zone as deemed to have obtained permission for use and profit-making according to the authorization of the implementation plan, the user fee for the use thereof shall be calculated in accordance with the provisions of the Act on Public Works, other than the former State-Owned Property Act. Nevertheless, the

B. Relevant statutes

The reasoning for this Court’s explanation is as follows: Article 2-b (b) of the reasoning of the judgment of the first instance except for the addition of “related Acts and subordinate statutes added” to the corresponding part; therefore, this Court’s explanation is cited by Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

C. Determination

(1) As to the disposition of this case (1)

(A) Whether the user fee is exempted

Article 65 (1) of the former Urban Development Act provides that "where an implementer under Article 11 (1) 1 through 3 installs new public facilities or public facilities replacing the existing public facilities, the former public facilities shall gratuitously revert to the implementer, and the new public facilities shall gratuitously revert to the administrative agency to manage them, notwithstanding the provisions of the State Property Act and the Local Finance Act," and Article 11 (2) of the same Act provides that "a new public facilities installed by an implementer under Article 11 (1) 4 through 7 shall gratuitously belong to the administrative agency to manage them, and the public facilities of an administrative agency, whose use is ceased due to the implementation of an urban development project, may gratuitously revert to the implementer within the extent equivalent to installation costs of the new public facilities, notwithstanding the provisions of the State Property Act and the Local Finance Act." The main sentence of Article 11 (3) of the same Act provides that "a person entitled to designate shall, when he/she intends to prepare or grant authorization for an implementation plan including matters concerning attribution of the public facilities under the provisions of paragraphs (1) and (2) of the same Act, he/she shall consider his/her opinions in advance about the occupancy and use."

However, considering the following circumstances, Gap evidence Nos. 1 through 4, Gap evidence Nos. 1 through 3-1, 2, and 4's evidence Nos. 4 added to the whole purport of pleadings, (i) the conditions of "the establishment of a development plan and the modification of an implementation plan" publicly notified on December 28, 2006 shall be determined without compensation after consultation with the relevant departments for the free reversion of public facilities pursuant to Article 65 of the Urban Development Act, and (6) the ownership of public facilities after completion of the project shall be in conformity with the relevant regulations. The plaintiff's assertion that ① the part of the land of this case included in the implementation plan on the free reversion of 10,850 square meters was not included in the land of this case, or the opinion of the pertinent administration agency on the land of this case was not included in the plan on the free reversion of 10,000 square meters, and (ii) the part of the land of this case which was transferred without compensation to the plaintiff is not included in the sale of the land of this case's.

(1) The Plaintiff asserts to the effect that the portion of the land used in the instant case should be deemed as public facilities subject to gratuitous reversion, but it should not be deemed as exempted from the usage fee. However, the Plaintiff’s free reversion of the public facilities to the management agency and the implementor of the previous public facilities (in the case of an implementor under Article 11(1)4 through 7 of the former Urban Development Act, gratuitously reverted to the extent equivalent to the installation cost of the new public facilities) and the free reversion of the previous public facilities shall be separate from each other. The time of free reversion of the previous public facilities and the new public facilities shall be the completion date (see Supreme Court Decision 9Du3003, Sept. 3, 199, etc.). The Plaintiff’s free reversion of the previous public facilities shall not be deemed as being exempt from the usage fee of the previous public facilities to the extent that the previous public facilities should not be included in the usage fee of the new public facilities subject to free reversion, and thus, it cannot be deemed as including the use fee of the previous public facilities subject to free reversion and its establishment.

(B) Whether to impose user fees or not

The reasoning for this Court’s explanation is as stated in Section 2(c)(1)(b) of the reasoning of the judgment of the first instance except that “the instant land” is “10,850 square meters of the area to be used among the instant land,” and thus, it is identical to that of Section 2(c)(1)(b) of the judgment of the first instance, and thus, it is cited as it is in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

(C) Method of calculating user fees

1) Applicable legislation

The court's explanation on this part is the same as the entry of Article 2-3 (1) (c) (1) of the reasoning of the judgment of the court of first instance. Thus, the court's explanation on this part is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2) Whether the officially assessed individual land price is applied

The Plaintiff asserted that: (a) the Defendant calculated the usage fee of 200 square meters of 240 square meters of a river area of 222 square meters of a river of Eunpyeong-gu, Seoul among the instant land (number 6 omitted); (b) the individual land price from 2004 to 2006, instead of using it, applied the officially assessed land price of the comparative standard land to impose KRW 86,636,800 as usage fee; (c) the Defendant calculated by applying the officially assessed land price of 200 square meters from 2004 to 2006 by applying the officially assessed land price of 200 square meters; and (d) the portion equivalent to KRW 24,037,380 of the difference is unlawful.

(1) According to the above facts, the Plaintiff’s use price of the pertinent land was 1 and 60 square meters for 20 square meters as of July 27, 209, and Article 2 subparag. 1 of the former Enforcement Decree (amended by the Presidential Decree No. 216412, the same shall apply hereinafter), the Plaintiff’s use price of the pertinent land was 1 and 600 square meters for 20 square meters (where there is no officially assessed individual land price, referring to the amount calculated based on the officially assessed land price of the pertinent land pursuant to Article 9 of the Public Notice of Values and Appraisal of Real Estate Act), and the Plaintiff’s use price of the pertinent land was 1 and 60 square meters for 30 square meters for 60 square meters for 60 square meters for 60 square meters for 60 square meters for 60 square meters for 60 square meters for 20 years for 60 years for 60 years for 200, 2006 square meters for 206.

[Reference] Details of calculation of usage fees for 22 square meters among the river 240 square meters in Jin-dong (number 6 omitted) river imposed by the Defendant

204 2350,700,000 70,700,000 385,000 385,000 385,000 385,000 204-12-2004-12-311, 2005 22390,500 88,5829,000 429,000 429,000 429,000 429,000 429,2005-12-129,4205, 2005, 205, 205, 207, 2005-129, 2005-129, 2005, 2005-1429, 2005, 2005, 2008-104, 205

0% of the adjustment factor of the rate of increase in the voting use fees included in the main sentence - 0% - 4% - 14% 1120% - 9% -1% -

[Reference] Calculation of Fees for Use of 200 square meters in a river of 240 square meters, which is imposed by the Defendant (number 6 omitted)

204 200,500,0000,0000,0000,0000,000 10,000,000,000,500,000 10,500,000 12-204-12, 2004-11, 316,4300, 2005,4200,4208-630,664,000,000, 2064, 208-16, 208, 2006, 207, 2006, 204, 2006-14, 200, 200, 2000,14, 2000-14, 2000, 2000, 2005-14, 2006, 2006

0% of the adjustment factor of the rate of increase in the voting use fees included in the main sentence - 0% - 19% 1.1270% 1,1400 28% 1.1380% 12% 1.1060

(iii) the timing of use;

However, according to Article 19 (1) 19 of the former Urban Development Act, when authorizing an implementation plan, matters about which the designating authority has consulted with the head of the relevant administrative agency regarding permission for use, profit, etc. under the State Property Act regarding the pertinent implementation plan shall be deemed to have obtained permission for use, profit, etc., and according to the above facts and evidences, the land of this case incorporated into an urban development project area was deemed to have been granted permission for use after the consultation with the head of the relevant administrative agency was completed at the time of commencement of the authorized construction work. The land of this case was deemed to have already been deemed to have been granted permission for use, and the plaintiff may use the land of this case without any restriction from around that time. Thus, even if the actual commencement of construction was delayed or some of the land was not used, as alleged by the plaintiff, such circumstance alone cannot be deemed to have been exempted from the obligation to pay rent for use of 10,850 square meters among the land of this case. Thus, the plaintiff'

(2) As to the disposition of imposition of indemnity amounting to KRW 13,580,130 during the disposition of this case

(A) Whether to occupy with a legitimate title

The court's explanation on this part is identical to the reasoning of the judgment of the court of first instance as stated in Article 2(c)(2)(a) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

(B) Whether the provisions of the Public Works Act apply

The court's explanation on this part is the same as the reasoning of the judgment of the court of first instance in accordance with Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

(C) the timing of use;

1) In full view of the contents of evidence No. 2 and evidence No. 2, the Plaintiff may recognize the fact that the Plaintiff started to use the land of this case from October 1, 2006 to October 1, 2006, barring any special circumstance, only the indemnity arising during the period after October 1, 2006 may be imposed on the land of this case.

2) Therefore, the portion exceeding the indemnity amounting to KRW 13,580,130, which occurred during the period after October 1, 2006, among the disposition imposing indemnity amounting to KRW 15,147,070 on the land of this case [i.e., the portion exceeding the indemnity amounting to KRW 1,56,950,00 (=1,566,950,000 (i.e., the indemnity amounting to KRW 163 x 2,451,350 ± 255, and evidence No. 4-2)]; and the remaining portion of the disposition imposing indemnity is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claim is dismissed as it is without merit. The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

[Attachment]

Judges Cho Jong-ho (Presiding Judge)