2017Tit 20353 Unlawful gains

Dogsan-dong District Housing Association

Korea

January 10, 2018

January 31, 2018

1. The plaintiff's claim is dismissed.

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

The defendant shall pay to the plaintiff 1,048,63,00 won with 15% interest per annum from the day after the delivery date of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. The Plaintiff is an association established to newly build multi-family housing in Ulsan-dong, Ulsan-dong, 377-7. On November 14, 2014, the Plaintiff obtained approval of a project plan (hereinafter referred to as the “project plan of this case”) with respect to the housing construction project (hereinafter referred to as the “project of this case”) to build apartment units on the Ulsan-dong, Ulsan-dong, 377-7 and 128 parcels, including the head of the Gu of Ulsan-gu, Ulsan-gu, Seoul-do, pursuant to Article 16 of the Housing Act, Article 15 of the Enforcement Decree of the Housing Act, Articles 9 and 11 of the Enforcement Rule of the same Act, and Articles 75-9 and 544 square meters (hereinafter referred to as the “each land of this case”).

B. On November 14, 2014, the head of Ulsan Metropolitan City imposed 46 approval conditions for the Plaintiff’s housing construction project plan (hereinafter “instant project plan approval conditions”) (hereinafter “instant project plan approval conditions”). The main contents of the instant project plan approval conditions are as follows.

42.1) Pursuant to the ownership of the Jung-gu in Ulsan Metropolitan City, lots of land can be sold free of charge and free of charge, general property transferred to general affairs after the abolition of the use of administrative property (safety construction) shall be the form of commercial sale before the commencement of the sale contract, and shall be subject to the time of shipment with the competent department (safety construction department and general affairs department) after consultation with the commencement of the sale contract and consultation with the commencement of the sale contract, and at the time of the commencement of the construction, accompanied by evidentiary documents at the time of carrying out the administrative procedure, such as purchase, etc.-- within the extent of cost equivalent to the cost of the sale and sale within the extent of 7.4 free of charge, 362-45, 363-2, 368-64, 368-68, 368-69, 741-10, 741-12, 745-5, 74-7, within the extent of 7.38-1, 368-6-6.

C. The Plaintiff filed an application for disuse of each of the instant land, and the relevant land was abolished on or around January 6, 2015. On or around January 30, 2015, the Plaintiff: (a) the land category of each of the instant land was a road and actually performed as a road; (b) the Plaintiff’s application for disuse of each of the instant land was erroneous; and (c) the instant land was subject to transfer without compensation; (d) the Plaintiff requested correction of the application for disuse of each of the instant land on the ground that it is subject to transfer without compensation; (c) however, the head of Ulsan Metropolitan City, Ulsan Metropolitan City, the head of the Gu, on February 16, 2015, was unable to accept the Plaintiff’s request for correction of the application for

D. Upon the absence of correction of the application for disuse of each of the instant land, the Plaintiff entered into a sales contract with the Defendant to purchase each of the instant land roll 1,048,63,000 (hereinafter “instant sales contract”) on March 27, 2015, and completed the registration of ownership transfer for each of the instant land on August 10, 2015 after paying the price for the instant sales contract in full.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 4, and 5 (which contain serial numbers shall include various numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Summary of the plaintiff's assertion

A. According to the latter part of Article 65(2) of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”), the public facilities whose use is discontinued by development activities should be transferred to the person who obtained permission for development activities without compensation. However, the Defendant, while interpreting each of the instant land does not constitute public facilities under the above provision, has refused to transfer without compensation, or forced the Plaintiff to enter into the instant sales contract without exercising discretionary power upon gratuitous transfer or grant transfer, and thus, the instant sales contract is null and void pursuant to Article 103 of the Civil Act, as it goes against good morals and other social order.

B. Since each of the instant lands is essential for the instant project, it was in imminent situation where the Plaintiff could not promote the said project unless the Plaintiff acquired it, and the Defendant forced the Plaintiff to conclude the instant purchase and sale contract by taking advantage of the superior status of the competent authority, the person and person of the instant apartment construction project, and comparing the area of public facilities donated to the Defendant by the Plaintiff with the area of the site which the Plaintiff acquired without compensation from the Defendant, the instant sales contract is null and void as an unfair legal act under Article 104 of the Civil Act

3. Determination

A. Whether the sales contract of this case violates the latter part of Article 65(2) of the National Land Planning and Utilization Act and Article 103 of the Civil Act

1) Whether each land of this case constitutes an existing public facility subject to free transfer

A) The Plaintiff asserted that each of the instant lands was abolished on January 6, 2015, but there was no reason to abolish the pertinent land in the absence of a public start-up on each of the instant lands, and that each of the instant lands function as a road used for the general public traffic at the time of the approval of the instant project plan, and thus, it constitutes an existing public facility subject to free transfer under the latter part of Article 65(2) of the National Land Planning and Utilization Act.

B) Article 65(2) of the National Land Planning and Utilization Act provides that “A public facility, the use of which is ceased to be a development act, may be transferred without compensation to a person who has obtained permission for development activities within the extent equivalent to the installation cost of a public facility newly installed,” and the previous public facility subject to gratuitous reversion shall be deemed to include administrative property under the State Property Act. However, administrative property under the State Property Act refers to the State’s property that is owned by the State and directly used or determined to be used for public, public, or corporate purposes (see Article 6(2) of

A public property, such as a road, is an administrative property only when it is designated by a statute, determined to be used for a public purpose by an administrative disposition, or when it is actually used as an administrative property. In particular, a road is in the form of a road and is determined and publicly announced as a road, or a road zone is determined and publicly announced, or when a road is constructed through the procedure prescribed by the Urban Planning Act or the Urban Redevelopment Act, it is deemed that a public purpose commences as a road. Thus, the land cannot be deemed an administrative property as a road solely on the ground that the land category is a road and is registered on the State property ledger. This is the same even if it is abolished, and the project operator must prove that it constitutes an existing public facility subject to gratuitous reversion (see, e.g., Supreme Court Decision 2015Da25524, May 12, 2016).

C) According to the Plaintiff’s appraisal commission with respect to the instant land No. 3, and the Plaintiff’s appraisal commission with respect to the instant land: (a) around October 2013, Ulsan-dong 738m2 (referring to the land before being divided into 738-5m2, such as 738m2, a 745m2, and 74m2, a 745m2 (referring to the land before being divided into 745m2, the same 745m2, the same 745m2, and 587.9m2, each of the instant land was used for each of the following reasons; (b) the Plaintiff’s appraisal and sale of each of the instant land was insufficient to recognize that each of the instant land was without any specific use of each of the instant land for the purpose of using each of the instant land as public facilities, and there was no lack of evidence to acknowledge that each of the instant land was without any specific use of each of the instant land for the purpose of using each of the instant land’s appraisal and sale.

2) assumptive determination on whether or not to deviate from or abuse the exercise of discretionary power

A) The plaintiff asserts that the land of this case was transferred at a cost to the plaintiff even though the defendant confirmed that the land is subject to gratuitous transfer after ascertaining the current status of each land of this case.

As a matter of course, the latter part of Article 65(2) of the National Land Planning and Utilization Act is interpreted to have discretion on whether to transfer free of charge the public facilities whose use is to be abolished to an administrative agency, and thus, it is difficult to deem the Defendant to have an obligation to transfer each of the instant land to the Plaintiff without compensation pursuant to the above provision. However, even if the above provision is interpreted as a discretionary provision, the exercise of discretion by an administrative agency should not allow the person of the administrative agency, as in other general cases, as in the case of administrative agency, but should exercise the right consistent with the principle of proportionality and equality in light of the legislative intent and purpose, and if not, he/she

However, it is insufficient to recognize that the Defendant’s decision not to transfer each of the instant land to the Plaintiff without compensation is unlawful, and there is no other evidence to acknowledge that the Plaintiff’s assertion is without merit. The Plaintiff’s assertion is without merit. The Plaintiff’s assertion is without merit. The Plaintiff’s assertion is without merit.

B) In addition, according to the approval of the project plan of this case, the Plaintiff explicitly divided the land subject to transfer for consideration and the land subject to transfer for consideration. Since the Defendant did not explicitly decide whether each of the land of this case is subject to transfer for consideration or not within the scope of transfer for consideration, the Defendant asserts that there was an error of law by not exercising discretionary power at all. Thus, in full view of the overall purport of oral argument, the Defendant’s refusal of the Plaintiff’s request for transfer for free consideration and conclusion of the sales contract of this case can be acknowledged. According to the above recognition facts, the Defendant can be deemed to have explicitly expressed that each of the land of this case is subject to transfer for consideration. Accordingly, the Plaintiff

B. Whether it is invalid as an unfair juristic act

1) The Plaintiff forced the Plaintiff to enter into the instant sales contract by taking advantage of the Plaintiff’s poor condition that the Defendant had no choice but to promptly commence the instant business, and the Plaintiff donated public facilities amounting to 5,464 square meters to the Defendant. The Plaintiff asserts that the instant sales contract is null and void as an unfair legal act under Article 104 of the Civil Act, on the ground that the area of the site that the Plaintiff acquired without compensation is merely 3,324 square meters, and the area of the site that the Plaintiff acquired without compensation is merely 3,3

2) On the other hand, an unfair legal act stipulated in Article 104 of the Civil Act is established only when there exists an objective imbalance between benefit and benefit in return, and a transaction which has lost such balance objectively takes place using brush, rash or experience in the affected party. Since the purpose is to regulate the brush, rash or influence of a person in the socially weak position, the injured party’s intention to use the frush, rash or influence, even if the injured party was in the state of frush, rash or influence, and the other party was aware of the circumstances of the victimized party, i.e., the intent to use the fru

3) As to the instant case, it is difficult to recognize that the Plaintiff was in imminent condition at the time of entering into the instant sales contract, or that the payment and benefit in return for the instant sales contract were significantly imbalanced solely on the grounds of health, the details of the instant sales contract’s performance and benefit in return, the status of the Plaintiff and the Defendant, and the progress of the instant business. Even if so, it is difficult to readily conclude that the Defendant entered into the instant sales contract with the intent to use the Plaintiff’s knowledge of such circumstances. Accordingly, the Plaintiff’s assertion

Furthermore, the Plaintiff asserts that public facilities donated to the Defendant for the instant business and the site area transferred without compensation from the Defendant are imbalanced. However, the Plaintiff’s obligation to contribute public facilities with respect to the instant business is not a counter-payment for the instant sales contract. Therefore, the Plaintiff’s above assertion is without merit even if it is so alleged

4) Therefore, the Plaintiff’s assertion that the instant sales contract was null and void as an unfair legal act is also without merit.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges in the future;

Judge Lee Jong-soo

Judge Lee Jong-chul

1) On December 29, 2014, the area of 318 square meters on the 738-dong, Ulsan-gu, Ulsan-do was divided into 33 square meters on the 738-dong, Ulsan-dong, Ulsan-do and 285 square meters on the 738-5 square meters on the 285-dong, Ulsan-dong, Ulsan-do, and the area of land was converted from the 285 square meters on January 2, 2015 to the 2005 square meters on the 738-5 road, Ulsan-do, Ulsan-do.

2) On December 29, 2014, the area of 745 square meters on the 7444 square meters in Ulsan-dong, Ulsan-do was divided into 200 square meters in Ulsan-dong, Ulsan-do and 745-9 square meters in Ulsan-dong, Ulsan-do, and the area of 544 square meters in Ulsan-dong, Ulsan-do, and the area of 745-9 square meters in Ulsan-do, Ulsan-do, was converted from the area of land to the "road" on January 2, 2015.