High River Co., Ltd. and one other

Central Land Tribunal and two others (Attorneys Yoon Young-young et al., Counsel for the plaintiff-appellant)

March 15, 2013

Seoul Administrative Court Decision 2011Guhap2613 decided October 6, 2011

1. The judgment of the court of first instance is modified as follows.

A. Of the instant lawsuits filed by Plaintiff (Appointed Party) and Plaintiff (Appointed Party) 2, the part of the primary and conjunctive claims filed by the Central Land Expropriation Committee against the primary Defendant, and the part of the conjunctive claims filed by the Claimant Co., Ltd. and the Claimant AB and Appellant 4 of the instant lawsuit are all dismissed.

B. The main and conjunctive claims against the Plaintiff (Appointed Party) and the Plaintiff (Appointed Party) and the Plaintiff (Appointed Party) against the local Land Tribunal of Seoul Special Metropolitan City, which are the primary and conjunctive claims, and the claims against the Defendant New-ro No. 5 Housing Redevelopment Association are all dismissed.

2. The costs of the lawsuit are borne by the Plaintiff (Appointed Party).

The judgment of the first instance shall be revoked.

1. The plaintiff (appointed party, the plaintiff 2), the plaintiff 2, and the appointed party Ghana

A. As to the main defendant 1 and 2

In the first place, on September 17, 2010, the expropriation ruling rendered by the Seoul Special Metropolitan City Regional Land Expropriation Committee against the Plaintiff, the Plaintiff (Appointed Party) 2, and the Appointed Co., Ltd. on January 21, 201, and the adjudication made by the Central Land Expropriation Committee against the Plaintiff, the Plaintiff (Appointed Party) 2, and the Appointed Co., Ltd. on January 21, 201 is all null and void. In the second place, the adjudication made by the Seoul Special Metropolitan City Regional Land Expropriation Committee on September 17, 2010 on the expropriation ruling made by the Plaintiff, the Plaintiff (Appointed Party) 2, the Appointed Co., Ltd. and the Defendant Central Land Expropriation Committee on January 21, 2011 on the land expropriation ruling made by the Plaintiff, the Plaintiff (Appointed Party) 2, and the Appointed Co., Ltd. and the adjudication made by the Defendant Land Expropriation Committee on January 21, 2011.

B. As to the conjunctive Defendant 3

The housing redevelopment association of Preliminary Defendant New-ro 5 shall pay 114,186,970 won to Go River Co., Ltd. and 20% interest per annum from November 2, 2010 to the date of full payment. The amount equivalent to 114,189,076 won to Plaintiff (Appointed Party) and 20% interest per annum from November 2, 2010 to the date of full payment, and the amount equivalent to 376,658,500 won to Selection-si Co., Ltd. and the amount equivalent to 376,658,500 won per annum from November 2, 2010 to the date of full payment.

2. Appointed 4;

Defendant New-ro Zone Five Housing Redevelopment Cooperative shall pay 25,918,890 won to the designated parties 4, and 5% per annum from May 19, 2008 to June 1, 2010, and 20% per annum from the next day to the day of full payment (the plaintiffs finally revised their claims at the trial of January 16, 2013).

1. Basic facts

The reasoning for this Court’s explanation is as follows: (a) the reasoning for the judgment of the court of first instance is the same as the reasoning of the judgment of the court of first instance, except where the “luminous” of April 7, 10, 5, 2, and 6 of the judgment of the court of first instance is deemed to be “acstiny”; and (b) therefore, (c) the reasoning for this Court’s explanation is cited pursuant to

2. The part concerning plaintiffs, senior lecture Co., Ltd. and the part concerning plaintiffs (appointed parties) 2

A. The plaintiffs' assertion

This case's expropriation decision and its objection are as follows: ① the deposit of this case is defective, ② appraisal was made in violation of the procedure of payment proposal and notification of receipt; ② the appraisal decision of this case was completed due to the completion of the project execution period due to the completion authorization; ④ the authorization of the project execution already acquired is invalidated as the defendant union did not acquire the right to the land within the project area of this case until the completion of the completion authorization; ⑤ the plaintiffs are in the status of parcelling-out, and the contract of the management and disposal plan is not subject to cash settlement because they refused to conclude the contract, ⑤ the plaintiffs cannot be subject to cash settlement because they refused to conclude the contract of the management and disposal plan, ② the authorization of the management and disposal plan and the change of the project execution plan, which are the premise of the announcement of the transfer, were cancelled to the Seoul Administrative Court Decision 2011Guhap2583, and there is no identity between the changed project execution authorization and the existing project execution authorization, and it is difficult for the plaintiffs to view the change of the existing project execution plan as unlawful due to the change of the execution authorization.

A. Although the instant acceptance ruling and its objection ruling are not null and void, all of the above illegal grounds should be revoked. On the other hand, since the amount of the instant acceptance ruling is too small and illegal, the Defendant Union is obligated to pay 20% interest per annum from November 2, 2010 to 114,189,076 won to the Plaintiff (Appointed Party) and 20% interest per annum from November 2, 2010 to the date of full payment.

B. The part on which the Central Land Expropriation Committee seeks confirmation of invalidity and revocation of the adjudication (the primary claim) against the primary defendant

According to the proviso of Article 19 and Article 38 of the Administrative Litigation Act, a lawsuit that contests the validity of the ruling can be brought only when there is an error inherent in the ruling itself. The above reasons asserted by the plaintiffs are defects in the ruling of acceptance and do not constitute an inherent violation of the ruling itself. Thus, this part of the plaintiffs' claim is without merit (However, this part of the claim cannot be modified disadvantageous to the plaintiff in this case where only the plaintiffs appealed the judgment of the first instance as to the claim of nullification confirmation, and it is dismissed only the part of the claim of revocation).

C. The part that seeks confirmation of invalidity and revocation of the adjudication of expropriation to the local land expropriation committee around Defendant Seoul Special Metropolitan City and the local land expropriation committee (the primary claim)

The following circumstances acknowledged by the above evidence and Eul or Eul evidence 8-3, i.e., (i) the plaintiffs expressed their intent to waive the right to sell multi-family housing newly constructed by the project in this case and to liquidate cash to the defendant New-ro Zone Five Housing Redevelopment Association (hereinafter "the defendant association"), and according to the plaintiffs' intent, the defendant association applied for the expropriation ruling of this case within the project implementation period of this case, and the compensation deposit was made lawfully. (ii) The execution period of this case was reduced by the date of completion of the project in this case after the completion of the project in this case or the already acquired project execution authorization of this case cannot be deemed as invalid due to the completion authorization of the project in this case. (iii) It is difficult to view the plaintiffs as the above implementation authorization of the project in this case to be an alteration of the project in this case's 10th and 20th of the above project implementation plan in this case's 20th of the above 6th of the 20th of the 1st of the 20th of the 2th of the 6th of the 10th of the application.

D. Part on the claim for payment of money to the preliminary defendant association

In the articles of incorporation or management and disposal plan of a project implementer, when requesting members to conclude a contract for sale in cash within a certain period after the completion of the period for application for sale in lots, if the project implementer grants an additional opportunity to leave the project by refusing to conclude the contract for sale in lots to the owners of land, etc. who were members of the project implementer. Accordingly, the project implementer's obligation to pay the settlement money to a person who becomes an additional object of settlement due to the failure to conclude the contract for sale in lots even if the initial application for sale in lots was filed, shall be deemed to occur on the day following the expiration of the period for the contract for sale in lots (see Supreme Court Decision 2011Du17936, Dec. 22, 2011). In such case, it is reasonable to view the base point for assessing the value of land and buildings, etc. which are the object of cash settlement as "the day following the expiration of the contract period" (see Supreme Court Decision 2009Da32850, Sep. 10, 2009).

In light of the above legal principles, in light of the above evidence, the plaintiffs had the intent to waive the right to purchase shares of the plaintiff corporation on December 30, 2009 and withdraw the application for parcelling-out and withdraw the application for parcelling-out in cash. The period of the contract for parcelling-out from December 17, 2007 to December 20, 207 can be acknowledged. Thus, the obligation to pay settlement money to the plaintiffs of the defendant association to the plaintiffs of the defendant union may arise on December 21, 2007, which is the day following the date of the contract for parcelling-out, and according to the appraisal of the non-party 2 of this court, the appraisal value of the plaintiff corporation's senior 391,452,850 won as of December 21, 2007 falls short of 391,452,850 won of the adjudication for expropriation and the appraisal value of the plaintiff corporation's shares falls short of 381,560 won of the compensation amount of the plaintiff 2 (party)'s 3901,8468.68

Then, in case where the project implementer fails to apply for parcelling-out or to withdraw the application for parcelling-out under Article 47 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents with respect to the part of the plaintiffs' claim for damages for delay against the defendant cooperative, the owner of land, etc. under the equitable principle bears the obligation to transfer the ownership of land, etc. to the project implementer in the state where there is no restriction on the right, and the obligation to transfer the ownership without registration of restriction on the right and the obligation to pay liquidation money to the project implementer is concurrently in the simultaneous performance relationship (see Supreme Court Decision 2009Da32850, 32867, Sept. 10, 2009, etc.). As seen above, the defendant cooperative acquires the plaintiffs' share ownership of the land of this case on November 5, 2010, which is the starting date of expropriation of this case. As long as the defendant cooperative deposited compensation for delay of the settlement money against the plaintiffs on November 1, 2010.

3. Whether the lawsuit filed by the Appointor Company A or 4 is legitimate;

(a) The part that seeks nullification and revocation of the expropriation ruling and its objection;

However, this part of the ruling of acceptance is unlawful since it is not possible for the Appointor to dispute the validity of the ruling of acceptance and its objection that did not go against the Appointor and the judgment of acceptance and the claim for nullification and revocation thereof. This part of the ruling of acceptance in this case is unlawful since it is not unlawful since it is not possible for the Appointor to dispute the validity of the ruling of acceptance and its objection that did not go against him.

B. Part on the claim for monetary payment by the designated parties

In order to receive compensation from a project implementer due to the extinguishment of rights or the limitation thereof, the designated parties, such as the owner of the land, can obtain remedy pursuant to Articles 83 through 85 of the Public Works Act only when they are dissatisfied with the adjudication after going through the adjudication procedures stipulated in Articles 34 and 50 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, and they cannot immediately claim compensation against the project implementer without such adjudication procedures (see Supreme Court Decision 2006Du19495, Jul. 10, 2008). Accordingly, this part of the claim is unlawful (On the other hand, if the parties to the establishment of the right to collateral, such as the right to collateral, have already been established on the land which was the object of the right to collateral security, or if the right to collateral security was established to prevent the construction or installation of a building or structure from being secured on the land of this case, it shall be deemed that the right to collateral security was extinguished without the lapse of 14th of the prescription period from the acquisition of superficies claim of this case.

4. Conclusion

Therefore, among the lawsuits of this case by plaintiffs Go River, plaintiffs (Appointed), and 2, the main and conjunctive claims against the Central Land Expropriation Committee of the main defendant 2, and the case by plaintiffs AB and 4 are dismissed in entirety as it is unlawful, and all of them are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the ground that the claims against the main and conjunctive claims against the plaintiff Go River and 2, the main defendant local Land Expropriation Committee of the plaintiff Go River and 2, as well as the conjunctive claims against the plaintiff Han River and 2, are dismissed as it is without merit.

[Attachment List of Appointed]

Judges Lee Jae-won (Presiding Judge) et al.