The meaning of Article 83(2) of the Urban Planning Act

The former part of Article 83(2) of the Urban Planning Act provides that the new public facilities installed by an executor who is not a prescribed administrative agency shall gratuitously revert to the State or a local government to manage the facilities by executing an urban planning project shall be reverted to the State or a local government without compensation, only in a case where the project executor purchases the land necessary for the public facilities under a private contract or acquires by means of public expropriation under the Land Expropriation Act, and installs the public facilities and completes the project.

Article 83(2) of the Urban Planning Act

Supreme Court Decision 80Da3269 Delivered on December 22, 1981

[Judgment of the court below]

Attorney Han-chul et al., Counsel for the defendant

Seoul High Court Decision 86Na1507 delivered on December 17, 1986

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

With respect to the First Ground:

The former part of Article 83(2) of the Urban Planning Act provides that public facilities newly installed by an executor other than an administrative agency by executing an urban planning project shall gratuitously revert to the State or a local government to manage such facilities. This means that the project executor shall purchase the land necessary for the public facilities under a private contract or acquire them through a method such as public expropriation under the Land Expropriation Act, and only if the public facilities are installed and the project is completed, such public facilities shall belong to the State or a local government (see, e.g., Supreme Court Decision 80Da3269, Dec. 22, 1981). Therefore, if the project executor installs the public facilities without lawful acquisition of the land necessary for the public facilities and uses them in possession and by the State or a local government without any legal ground, this would result in a loss to the land owner, and thus the State or a local government is obliged to return such profits to

According to the reasoning of the judgment below, the court below held that the non-party housing association, an executor of the urban planning project of this case, has occupied the land of this case as stated in its reasoning by completing the project including the land of this case as a road site and completing the project. The defendant purchased the land of this case from the plaintiff on April 1, 1982 and completed the registration thereof. around May 10, 1983, the land of this case was reverted to the defendant free of charge pursuant to Article 83 (2) of the Urban Planning Act. The plaintiff requested the cancellation of the above sales contract to the plaintiff on the ground that the land of this case was reverted to the defendant free of charge pursuant to Article 83 (2) of the Urban Planning Act, and confirmed the fact that the above payment was returned to the defendant, and on the purport as seen above, the above housing association did not legally acquire the right to the land of this case without compensation, so long as the land of this case was constructed on the road, it is just to order the defendant to cancel the registration due to the cancellation of the above agreement and to return the rent.

With respect to the second ground:

According to the records, there is no evidence to acknowledge that the non-party allowed the operator of the urban planning project to incorporate the land of this case into the road site without compensation before selling the land of this case to the plaintiff, and even if the land was legally incorporated into the road site, and the plaintiff knowingly purchased it, the plaintiff's claim for unjust enrichment of this case shall not be excluded. In the same purport,

The assertion is groundless.

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

Justices Park Jong-hee (Presiding Justice)