Plaintiff

Jeju Free International City Development Center (Law Firm LLC, Attorneys Kim Jong-sung et al., Counsel for the plaintiff-appellant)

July 12, 2018

1. The Defendant shall implement the procedure for the registration of ownership transfer on the part of “A” in the attached Form No. 10, 39 through 42, 15, 14, 13, 12, 11, and 10 of the attached Form No. 10, 39 through 42, 14, 14, 13, 11, and 264 square meters in sequence, among the land areas of 5346 square meters in Seopo-si ( Address 3 omitted), which connected the Plaintiff with each point of 15, and 1637 square meters in order to the Plaintiff.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Facts of recognition;

(a) Process of the project;

1) On November 5, 1997, pursuant to the former Urban Planning Act (amended by Act No. 6655 of Feb. 4, 2002), the Seopopopo City announced that the establishment of an amusement park, which is an urban planning facility of the area of 403,00 square meters in daily area, shall be made (hereinafter “determination of the above urban planning facilities”) and announced as the announcement of Jeju Special Self-Governing Province by Ordinance No. 1997-76.

2) After that, while an amusement park development project based on the determination of the above urban planning facilities has not been implemented for a long time, the Jeju Free International City Promotion Planning Group under the Prime Minister’s Office for Government Policy Coordination planned to develop a resort-type housing complex in which housing ( condominiums, electric source housings, etc.), leisure (gols, sports centers, etc.) and medical functions are integrated into 226,80 square meters in each of the seven leading projects for Jeju Development around November 201, Seopo-si ( Address 1 omitted), and the Korea Land Corporation, which was the subject of research of the above development plan, planned to develop a resort-type housing complex in which the above development plan is integrated. The Korea Land Corporation, on January 2003, has had Sinpo-si ( Address 1 omitted), 00 Dong-dong, and △△-Gun △△△, which is the most suitable for the development candidate site. However, as a result of the comparison and review, it is possible to revise the project implementation plan to 78,800 square meters in the existing area.

3) Accordingly, the Seopopo-si Mayor decided to implement the above recreational-type housing complex development project (hereinafter “instant project”) on October 14, 2003 at the project site in accordance with the determination of the above urban planning facilities. Jeju Special Self-Governing Province Governor, on October 14, 2003, designated the Defendant as the prospective implementer of the instant project at the request of the Seopo-si City pursuant to Article 62 of the former Special Act on Jeju Free International City (repealed by Act No. 7849, Feb. 21, 2006; hereinafter “former Special Act on Jeju repealed”).

(b) the relevant disposition;

1) Around March 2005, the Defendant submitted the “A project site development plan for the housing complex development project (changeed document) document” with the content that greatly expanded the scope of the project site according to the determination of the above urban planning facility to neighboring land by the total area of 743,700 square meters based on the above development plan to Seopopo City Mayor.

2) On October 5, 2005, the Seopopopo-si Mayor approved the implementation of the above development project (hereinafter “instant 12 disposition”) expanded to the Defendant pursuant to Article 59 of the former Special Act on Jeju repealed (hereinafter “former Special Act”). On October 14, 2005, the Si of Seopo-si announced the implementation of the development project on October 14, 2005 by Article 2005-336, the Si of Seopo-si publicly announced the extension of Seopo-si Parkpo-si (hereinafter “former National Land Planning Act”) pursuant to Articles 30 and 32 of the former National Land Planning and Utilization Act (amended by Act No. 7707, Dec. 7, 2005; hereinafter “former National Land Planning Act”).

3) After November 14, 2005, Pursuant to Articles 86 and 88 of the former National Land Planning and Utilization Act, the Seopopo City approved an implementation plan for the said development project (hereinafter “first disposition”) and publicly notified by Pupo City Notice No. 2005-49.

4) On January 29, 2009, the Seogpo-si Mayor changed the project implementer of the above development project to the urgian Jeju-do Corporation pursuant to Article 229 of the Special Act on the Establishment of Jeju Special Self-Governing Province and the Development of Free International City (wholly amended by Act No. 13426, Jul. 24, 2015; hereinafter “former Special Act on Jeju”); Article 20 of the former Ordinance on the Approval, etc. for the Implementation of the Development Project of Jeju Special Self-Governing Province; and Article 20 of the former Ordinance on the Approval, etc. for the Implementation of the Development Project of Jeju Special Self-Governing Province; and approved the "Implementation of the Development Project of the Dosan-type Housing Complex (Amended by Act No. 13428, Jul. 24,

C. Agreement between the plaintiff and the defendant

1) From March 16, 2006 to Disposition 1, the Defendant entered into a contract with the land owner located in the project site to purchase the project site through consultation. On May 18, 2006, the Defendant entered into a contract with the Plaintiff to purchase 120,396,660 square meters in Seopo-si ( Address 2 omitted) and 1901 square meters in Seopo-si (hereinafter “instant land”) from the Plaintiff, Seopo-si (hereinafter “instant land”). On May 18, 2006, the Defendant paid the Plaintiff the said amount on the 19th day of the same month, after completing the registration of ownership transfer on the said land, and paid the said amount to the Plaintiff on the 25th day of the same month. Meanwhile, on May 25, 2006, the Defendant paid the Plaintiff the agricultural loss compensation amount,896,970 won (hereinafter collectively referred to as the “instant compensation”).

2) The ownership of the instant land was transferred on October 8, 2009 to the Cyberju Co., Ltd.

3) On April 19, 2013, the instant land was merged into Seopo-si ( Address 3 omitted) and its registration was cancelled.

4) On November 15, 2013, the land of Seogpo-si ( Address 3 omitted) was divided into 1096 square meters and 5346 square meters and 1096-2790 square meters and divided into 1096 square meters.

5) Before cancellation, the location and cadastral records of the instant land are identical to the sum of 10, 39, 14, 13, 12, 11, and 10 square meters in the ship that connects each point of the attached Form 1 through 15, and 1637 square meters (hereinafter “A” in the ship”) among the area of 5346 square meters in Seopo-si, Seopo-si ( Address 3 omitted), and ( Address 4 omitted), the portion of “A” in the attached Form 10, 39 through 42, 15, 14, 14, 13, 12, 11, and 10 square meters in the ship (hereinafter “the part” in the ship”).

(d) Nullity of relevant dispositions;

Each disposition listed in the separate sheet Nos. 2 (Disposition in the Western Market) and the separate sheet Nos. 3 (Disposition by the Governor of Jeju) including the disposition Nos. 12, 1, and 5, was all invalidated by the relevant administrative litigation. In examining the reasons why the disposition Nos. 1, 12, and 5, which is the main disposition, was invalid, the following.

1) Whether a disposition 1 is null and void

The above recreational-type residential complex that the defendant intends to want is not an amusement park, which is an infrastructure under the former National Land Planning and Utilization Act, and the above authorization-type residential complex is to develop the above recreational-type residential complex in the form of amusement park by putting the existence of the decision of the existing urban planning facilities, has a defect in violation of the legal requirements of the National Land Planning and Utilization Act, which

In full view of the various circumstances, the △ resort-type residential complex is the main purpose of the installation of the facility in consideration of the use of a specific class, such as relaxation and tourists in Korea and abroad, and its main purpose is to restrict the availability of the facility for residential or long-term stay. In addition, in light of the overall structure of the facility, it seems that the use of the general public is possible only for the use of the facility. Thus, it is clear that it is an “facilities for recreation and rest installed to contribute to the improvement of the welfare of the residents by the State” as stipulated in Article 56 of the Regulations on Urban Planning Facilities, which are “facilities for recreation and rest, installed to contribute to the improvement of the welfare of the residents by the State

Therefore, even though the meaning of the meaning of the amusement park in the language and text of the National Land Planning Act is clear, it can be seen that the above disposition was made without any reasonable ground, and such defect is objectively clear.

2) Whether a disposition 12 is null and void

The disposition No. 12 is issued for the purpose of creating a recreational housing complex in the project site designated as an amusement park, and there was an aspect of avoiding the procedures prescribed by the former National Land Planning and Utilization Act and relevant Acts and subordinate statutes because it was imminent to designate a project implementer and to authorize an implementation plan pursuant to the former National Land Planning and Utilization Act, and Article 60 (1) 17 of the former Special Act on Jeju repealed repealed through the disposition No. 12 is deemed to be a decision of an urban management plan pursuant to Article 60 (1) 17 of the former Special Act on Jeju, which was repealed. In light of the fact that the decision of an urban management plan to be deemed as above must be permitted in a case where it satisfies the requirements of the former National Land Planning and Utilization Act and relevant Acts and subordinate statutes, it is reasonable to deem that the above deemed that the disposition No. 12 exists as it is for a business for the purpose of conflict with

(iii) the invalidity of any 5 measure.

As seen earlier, Article 59 of the former Special Act on Jeju repealed on October 5, 2005 (amended by the Presidential Decree No. 12) provides for the approval for the implementation of a development project (amended by the Presidential Decree No. 12). In light of the purpose and content of the Disposition No. 5, the Disposition No. 5 is a subsequent disposition based on the premise that the prior disposition, which is a prior disposition, is valid due to the modification of the Disposition No. 12 that involves a partial change in the project operator and its size, so long as the Disposition No. 12 is null and void,

E. Plaintiff’s deposit and exercise of a redemptive right

On April 20, 2016, the Plaintiff deposited KRW 125,463,630 with the Defendant as the principal deposit and deposited KRW 125,463,630, as the Plaintiff filed the instant lawsuit seeking the implementation of the procedures for the registration of ownership transfer of the portion “A” and the portion “C” on the ground of the exercise of the right to repurchase, as the instant land was no longer necessary for the instant project, and the Plaintiff was served on the Defendant on the 29th day of the same month, based on Article 91(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”).

[Ground of Recognition] A without dispute, clear facts in this court, Gap evidence Nos. 1 through 23, Eul evidence Nos. 1 through 6 (including additional numbers), the result of this court's commission of appraisal to the chief of the Seogpo District Land Information Corporation, the purport of the whole pleadings

2. Determination:

A. The parties' assertion

1) Plaintiff

The instant land was no longer necessary for the instant project due to the discontinuance, alteration, or other reasons of the instant project. Accordingly, the Plaintiff is obligated to complete the registration of ownership transfer as indicated in the order following the Plaintiff’s exercise of the Plaintiff’s repurchase right, on April 20, 2016, where the ownership of the instant land was transferred to the Defendant on April 20, 2016, and ten years have not passed since the date when the ownership of the instant land was transferred to the Defendant. The instant written complaint was served on the Defendant on the 29th day of the same month.

2) Defendant

A) The instant defense

The exercise of the instant repurchase right is premised on the assumption that the project implementer paid the instant compensation to the project implementer within the exclusion period of ten years from the date the land ownership was transferred. The project implementer of the instant project is the Bai Triju Ltd... The Plaintiff deposited the instant compensation only to the Defendant, who is not the project implementer, and did not pay or deposit the instant compensation to the Bai Jeju Ltd., which is the project implementer, with the lapse of ten years from the date the instant repurchase right was exercised.

The lawsuit of this case is unlawful where the exercise period has already lapsed and the exercise period has already been terminated.

B) Failure to meet the requirements for exercising the instant redemptive right

The project of this case was promoted for the public interest for the development of Jeju-do. The defendant want to continue the project of this case and secure the site for the project including the land of this case for this purpose. Therefore, the land of this case cannot be necessary for the project.

B. Determination on this safety defense

Where all or part of the acquired land becomes unnecessary due to a discontinuation or alteration of the relevant project or for other reasons within ten years from the date the land is acquired under consultation or the date the expropriation is commenced (hereinafter referred to as "acquisition date"), the landowner at the time of the acquisition date or his/her general successor (hereinafter referred to as "re-purchase right holder") may repurchase such land by paying to the project operator the amount equivalent to the compensation paid for such land, within one year from the date all or part of the relevant land becomes unnecessary, or within ten years from the acquisition date (Article 91(1) of the Land Compensation Act).

However, the facts that the 5 disposition changing the project implementer from the defendant to the Bergian Trith Co., Ltd. were invalid were examined earlier, and therefore, the project implementer is still the defendant. The plaintiff filed the lawsuit of this case by depositing the compensation of this case with the defendant as the principal deposit on the date when ten years have not passed since the date when the ownership of the land of this case was transferred to the defendant, and exercising the right of repurchase. Ultimately, the plaintiff deposited the compensation of this case to the defendant who is the project implementer within the exclusion period of 10 years and exercised the right of repurchase. This safety defense cannot be accepted.

C. Judgment on the merits

All dispositions of Nos. 1, 12, and 5, which served as the basis for the instant project, and the remaining dispositions incidental thereto, were invalidated prior to the invalidation.

Therefore, as of the date of the closing of argument, there is no legal basis to implement the instant project. Moreover, there is no evidence to acknowledge the probability that the instant project would again acquire the legal basis.

As long as the instant project lost the legal basis as above and is not likely to obtain the legal basis again, the land of this case, which was acquired through consultation for the said project, was also the grounds for maintaining the status of acquisition through consultation. Ultimately, the land of this case was no longer necessary for the instant project.

Therefore, this part of the plaintiff's assertion is justified.

D. Sub-determination

Therefore, the Defendant is obligated to implement the Plaintiff’s registration procedure for transfer of ownership based on the exercise of the right of repurchase on April 29, 2016 with respect to the portion of “A” and “C” in the ship.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.

(attached Form omitted)

Judges Kim Tae-woo

Jeju District Court Decision 2015Guhap459 decided September 13, 2017; Gwangju High Court Decision 2017Nu1775 decided September 5, 2018; Supreme Court Decision 2018Du5977 Decided January 31, 2019