(영문) 대법원 2014.9.4.선고 2014다204970 판결

According to the reasoning of the judgment below, since most of the lands in this case were incorporated into a site for the housing site development project on December 30, 204, which is recognized as being comprehensively based on evidence, etc., the lower court determined that, on January 12, 2007, all of the lands in this case were incorporated into a site for the housing site development project. Each of the lands in this case was already determined to be urban planning and district unit planning for the installation of public office buildings and schools as the housing site, and that, on the application of the approval of the implementation plan of the Korea National Housing Corporation (hereinafter referred to as the "Non-Party Corporation") which is the implementer of the housing site development project in this case, the Minister of Construction and Transportation sent the request for consultation to the defendant who is the owner of the housing site development project in this case, and that part of the land in this case was approved for the free reversion of the land used for the housing site development project in this case, the lower court determined that, after the alteration of the implementation plan of the housing site development project in this case, the land in this case was altered to 3.

However, we cannot accept the above determination by the court below for the following reasons.

Article 91(1) of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Act No. 11017, Aug. 4, 201; hereinafter referred to as the "Public Works Act") provides, "in case where the remaining or part of the land acquired due to the discontinuation or alteration of the relevant project and other causes within 10 years from the date of acquisition through consultation or expropriation of the land, becomes unnecessary, the landowner at the time of the acquisition date or his/her general successor shall pay to the project operator an amount equivalent to the compensation paid for the relevant land within one year from the date of acquisition, or within 10 years from the date of acquisition, and "the relevant land may be repurchased" as provided in the above provision. "The specific public project refers to a specific public project, the purpose of which is the acquisition through consultation or expropriation of the land, and "the acquired land becomes unnecessary" means a case where the land is no longer necessary due to the discontinuation or alteration of a specific public project, the purpose and purpose of which the relevant land is acquired, and whether the land has been acquired shall be determined reasonably 10.

According to the records, (1) on October 30, 1995, the Do Governor announced the determination of the road zone (revision) that recognized approximately 71 km of 71km of local highway as 310 lines. On February 10, 1997, the Minister of Construction and Transportation announced the confirmation and packing of the road among the above 310 lines, i.e., the road zone for the road project of this case. (2) on January 16, 1997 to be incorporated into the site for the road project of this case. (3) on December 11, 1998, the Minister of Construction and Transportation obtained the ownership transfer of each of the above land from the original owners by consultation or expropriation, and completed the registration of alteration of the road site of this case. (3) On the other hand, on January 4, 201, the Minister of Construction and Transportation announced the alteration of the housing site development plan of this case as 30 m20 m2, 30 m2, and 30 m2.

According to the above facts, even if the execution plan approved for the housing site development project of this case stipulated that public office buildings, schools, etc. are to be installed on each of the lands of this case on March 16, 2009, it may be deemed that the utility or public interest needs not be extinguished as long as the local highway 359 lines were provided for common use by the public until March 16, 2009. Accordingly, it is difficult to conclude that the part of the land of this case included in the site of local highway 359 lines in each of the lands of this case was objectively unnecessary for the road development project of this case.

Therefore, the court below should have determined the time when each of the lands of this case was used in conformity with the road project of this case and the scope thereof based on the judgment below, and determined the time when each of the lands of this case becomes unnecessary for the road project of this case and whether the right to repurchase each of the lands of this case of this case of this case of this case of this case of this case of this case of each of the land of this case of this case of this case of this case of this case of this case before the land specification of local highway 359 lines and opening through the road development project of this case of this case of this case of this case of local highway 310 lines.

Nevertheless, the court below determined that each land of this case was no longer necessary for the road project of this case solely on the ground that approval of the execution plan for the housing site development project of this case was obtained, and that the right of repurchase has been made to the plaintiffs. In so doing, it is erroneous by misapprehending the legal principles on the occurrence of the right of repurchase stipulated in Article 91(1) of the Public Works Act

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.