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(영문) 대법원 1991. 10. 22. 선고 91다27716 판결
[보증금반환][공1991.12.1.(910),2814]
Main Issues

The State's assertion that the land required for green facilities in the urban planning zone was sold for purposes other than green areas by means of general competitive bidding, and the burden of proof shall be borne.

Summary of Judgment

According to Articles 82 and 2(1)1 (b) of the Urban Planning Act, land owned by the State or a local government in an urban planning zone and necessary for green facilities shall not be sold or transferred for any purpose other than its original purpose. Thus, in selling land through a public tender by the Ministry of National Defense under the jurisdiction of the State, the State shall not be held responsible for the difference, etc. in the public account of the property sold, and shall not be held to sell the land as is specified in the urban planning, unless there are special circumstances, unless the purchaser entered into a sales contract in response to the notice of the public account to the effect that the public account will not be held for the difference in the public account of the property sold, etc., and the purchaser shall not be deemed to have sold the land for any purpose other than its original purpose. Thus, in such a case, the State

[Reference Provisions]

Article 82 of the Urban Planning Act, Article 261 of the Civil Procedure Act

Plaintiff-Appellant

Plaintiff

Defendant-Appellee

Korea

Judgment of the lower court

Gwangju High Court Decision 90Na6704 delivered on July 10, 1991

Text

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

Reasons

We examine the grounds of appeal.

With respect to No. 1:

According to Articles 82 and 2 (1) 1 (b) of the Urban Planning Act, land owned by the State or a local government in the urban planning zone, which is necessary for green facilities, shall not be sold or transferred for any purpose other than its original purpose. However, as determined by the court below, the Ministry of National Defense under the defendant's control of the Ministry of National Defense, as determined by the court below, issued a public notice to the effect that the sale of the land of this case is different from the public account of the sale property, conflicts with the public law, intellectual status, and ground surface, shall not be held liable, and that the plaintiff would sell the land of this case as it is, unless there are special circumstances, as it is determined in the urban planning, and it shall not be deemed that the land necessary for the urban planning of this case is sold for any purpose other than its original purpose. In such a case, the defendant's assertion that the defendant sold the land of this case for any purpose other than its original purpose, and

In the same purport, the court below's rejection of the plaintiff's assertion that the defendant sold part of the land of this case to the plaintiff for the purpose other than the purpose prescribed in the urban planning is justifiable in light of the records, and there is no error of law by prior the burden of proof or by the rules of evidence.

With respect to paragraphs 2 and 3:

According to the reasoning of the judgment below, the court below clearly rejected the plaintiff's assertion that the plaintiff's purpose of the contract of this case cannot be achieved only with the remaining land except a green belt, and there is no impediment to the plaintiff's construction of residential buildings because the non-party 1, the person in charge of the sales department of the land of this case, as the land of this case, constitutes a residential area, and there is a conflict with the road plan or park area, and there is no evidence to support the plaintiff's assertion that if there is a part contrary to the road plan or park area, the amount equivalent to the area should be deducted, and it is also acceptable in light of the records that the plaintiff's assertion that the land of this case would be trusted and purchased it. Accordingly, there is no error of law

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

Justices Kim Yong-sung (Presiding Justice)

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