[1] Legislative intent of the latter part of Article 65 (2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, and whether the "infrastructure newly installed by the project implementer" under the former part is the same as the "infrastructure newly established by the project implementer by implementing a rearrangement project" (affirmative)

[2] The method of calculating "expenses for installing newly installed infrastructure by a project implementer" under the latter part of Article 65 (2) of the Act on the Maintenance and Improvement of Urban Areas and Residential Environments, where the infrastructure owned by the State or a local government that ceased to be used due to the implementation of an improvement project under the Act on the Maintenance and Improvement of Urban Areas and

[1] In particular, the latter part of Article 65(2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents takes into account the project implementer’s property losses arising from the private project implementer’s gratuitous reversion of the infrastructure newly installed by the project implementer to the management authority pursuant to the former part of the Act, the legislative intent is to compensate the project implementer for such property losses by allowing the State or a local government’s infrastructure to be transferred gratuitously to the project implementer within the extent equivalent to the installation cost of the newly installed infrastructure by the project implementer within the scope equivalent to the cost of the newly installed infrastructure. Furthermore, the term in the same Act and subordinate statutes must be equally interpreted and applied to the project implementer, barring any special circumstances, such as where other provisions exist in the Act and subordinate statutes, and thus, the term “infrastructure newly installed” in the latter part of the former provision stipulating the scope of the newly installed infrastructure to be transferred to the project implementer without compensation. The term “infrastructure

[2] In light of the legislative intent and text of Article 65(2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Dual Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”) where an existing improvement infrastructure (hereinafter “existing improvement infrastructure”) ceased to be used as a result of the implementation of an improvement project is incorporated into the newly constructed improvement infrastructure (hereinafter “newly constructed improvement infrastructure”), and the legislative intent and text of Article 65(2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “dual Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”), the overlapping improvement infrastructure falls under the “construction cost of newly installed improvement infrastructure” under the latter part provision, and thus, it is deemed that the project implementer purchases the overlapping infrastructure as it falls under the “construction cost of the newly installed improvement infrastructure under the ownership of the State or a local government,” and thus, it does not constitute the “construction cost of the newly installed improvement infrastructure” under the latter part of the same provision, and thus, it does not constitute the “construction cost of the latter part of the newly installed infrastructure.”

[1] Article 65 (2) of the Act on the Improvement of Urban Areas and Residential Environments / [2] Article 65 (2) of the Act on the Maintenance

[1] Supreme Court Decision 2006Du11149 Decided April 13, 2007

Law Firm 12 Housing Redevelopment and Improvement Project Association (Attorney Yoon Young-young et al., Counsel for the plaintiff-appellant)

The head of Seongdong-gu Seoul Metropolitan Government (Law Firm Daeho, Attorney Kim Jong-tae, Counsel for defendant-appellant)

Seoul Special Metropolitan City Mayor

Seoul High Court Decision 2010Nu46441 decided July 28, 201

The appeal is dismissed. The costs of appeal are assessed against the defendant, including those resulting from participation.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 97 (6) 6 of the Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 23009, Jul. 1, 2011; hereinafter “Enforcement Decree of the National Land Planning and Utilization Act”) is a provision related to the implementation of an urban planning facility project, and the urban planning project under the National Land Planning and Utilization Act is divided into an urban planning facility project and a rearrangement project, and the two is not the same as the purpose or function of the project. Thus, the court below's decision that Article 97 (6) 6 of the Enforcement Decree of the National Land Planning and Utilization Act, which is a provision related to the urban planning facility project in this case under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter "Urban Improvement Act"), which is a provision related to the urban planning facility project in this case under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, cannot be deemed as being applied as it is, and there is no error in the misapprehension of legal principles as argued in the Grounds for Appeal.

2. Regarding ground of appeal No. 2

Article 65(2) of the Urban Improvement Act provides that an infrastructure for rearrangement newly installed by a project implementer, other than the head of a Si/Gun or a housing project, in the course of implementing an improvement project, shall gratuitously revert to the State or a local government which will manage the infrastructure (hereinafter referred to as “former Regulations”), and an infrastructure for rearrangement owned by the State or a local government, the use of which is ceased due to the implementation of an improvement project, shall be transferred to the project implementer without compensation to the extent equivalent to the installation cost of the newly installed infrastructure (hereinafter referred to as “after

In particular, the latter part of the above provision is intended to make sure that the infrastructure for maintenance owned by the State or a local government ceased to be used by the project implementer without compensation to the project implementer within the extent equivalent to the installation cost of the newly installed infrastructure, taking into account the property losses of the project implementer caused by the project implementer’s gratuitous reversion of the infrastructure for maintenance installed by the private project implementer to the management authority under the former part, and to compensate for such property losses within the reasonable scope.

In addition, since the terms in the same Act and subordinate statutes should be equally interpreted and applied to the same person, barring special circumstances, such as where there are other provisions in the statutes, the term "maintenance infrastructure that he/she newly installed" in the latter part of the provision stipulating the scope of transfer to a project implementer of the existing rearrangement infrastructure, which is abolished, refers to "maintenance infrastructure newly installed by a project implementer by implementing a rearrangement project" under the former part, and both are the same (see Supreme Court Decision 2006Du1149, Apr. 13, 2007, etc.).

Meanwhile, there are cases where an existing infrastructure for rearrangement, which is ceased to be used due to the implementation of a rearrangement project (hereinafter “existing infrastructure for rearrangement”) is incorporated into a newly built infrastructure by a project implementer (hereinafter “new infrastructure for rearrangement”). In light of the legislative intent and language and text of Article 65(2) of the Act as seen earlier, in calculating “construction costs of newly installed infrastructure” under the latter part of the Act, the overlapping infrastructure falls under “construction costs of the newly installed infrastructure under the ownership of the State or a local government, the purpose of which is to be purchased by the project implementer as it falls under “construction costs of the newly installed infrastructure” under the latter part of the Act, and thus, it should include the value of overlapping infrastructure in the “construction costs of the newly installed infrastructure” under the latter part of the Act, and thus, it should be excluded from the “construction costs of the newly installed infrastructure” under the latter part of the Act, and thus, it should be excluded from the “construction costs of the latter part of the latter part of the Act.”

In the same purport, the court below is just in holding that the authorization conditions of this case which set the scope of gratuitous transfer under the latter part of Article 65 (2) are unlawful, and there is no error of law by misapprehending the legal principles as to the scope of gratuitous transfer under the latter part of Article 65 (2)

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party, including the part arising from the intervention. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Poe-dae (Presiding Justice)