[1] The meaning of "the project" under Article 91 (1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, which provides for the right of repurchase, and the standard for determining whether the land acquired through consultation or expropriated is unnecessary

[2] The meaning of the period for exercising the repurchase right under Article 91(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[3] In a case where the conversion of public works under Article 91(6) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects is recognized, whether the exercise of the right to repurchase is restricted (affirmative)

[4] Whether the conversion of public works under Article 91(6) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects can be recognized only when it is deemed that project approval has been obtained or project approval has been obtained under Article 20(1) of the same Act (affirmative)

[5] In a case where a land acquired through consultation or expropriated for a public project is disposed of to a third party, not a project implementer (negative)

[6] In a case where a local government acquired a school site through consultation for an elementary school construction project under an urban management plan, but the housing construction project implementer and its apartment site, which operated an apartment construction project in the vicinity of the above school site, exchanged a new elementary school site and the above school site, and changed the urban management plan to build a middle school in the above school site, the case holding that the exercise of a redemptive right as to

[1] The "project" under Article 91 (1) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation for Land, etc. for Public Works ("the "Act on the Acquisition of Land, etc. for Public Works") which provides for a redemptive right to repurchase refers to a specific public project which is an object of the acquisition or expropriation of the land, and is specific public project at the time of obtaining a project approval under Article 20 (1) of the Public Works Act. In cases where authorization of an implementation plan for an urban planning facility project under Articles 88 and 96 (2) of the National Land Planning and Utilization Act is deemed a project approval under Article 20 (1) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation for Land, etc. for Public Works Projects ("the "Act on the Acquisition of Land, etc. for Public Works Projects"), the specific public project specified in the above provision refers to the whole or part of the land acquired by a project operator, and whether it is necessary to acquire the land or to use the land in question objectively or rationally, in light of the purpose and purpose of the project.

[2] The meaning of Article 91(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects that "the land concerned may be redeemed within one year from the time when all or part of the land concerned becomes unnecessary or within 10 years from the date of acquisition," shall be interpreted to mean that where the land concerned becomes unnecessary within 10 years from the date of acquisition, the repurchase right may be exercised within 10 years from the time of acquisition, and where 10 years have not elapsed from the date of acquisition, the repurchase right holder may exercise the repurchase right lawfully.

[3] In light of the legislative purport that recognizes the conversion of the public works, Article 91(6) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects provides that even when the land acquired through consultation or expropriated due to the discontinuation or alteration of the relevant public works for which the approval of the project is granted becomes unnecessary, the original owner of the relevant land or his/her general successor shall not have the right to repurchase. The meaning of "the period for exercising the right to repurchase under paragraphs (1) and (2) shall be calculated from the date when the alteration of the relevant public works is publicly notified in the Official Gazette," which means "the period for exercising the right to repurchase under paragraphs (1) and (2) shall be calculated from the date when the alteration of the relevant public works is publicly notified in the Official Gazette, unless the requirements for exercising the right to repurchase are met, and where the right to repurchase under paragraphs (1) and (2) can be exercised by meeting the requirements for exercising the right to repurchase, such period for exercising the right to repurchase shall be interpreted to mean that

[4] The conversion of the public works under Article 91(6) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects is limited to the case where the public works for which the approval of the project under Article 20(1) of the same Act has been granted are changed to other public works with a high public interest within a certain scope. Thus, the restriction on the exercise of the redemptive right by conversion of the public works may be acknowledged only when it can be deemed that the project has been approved under Article 20(1) of the same Act or that the project has been deemed to have been approved under the provisions of other Acts deemed to have been approved.

[5] In light of the legislative intent that recognized the “disputation of public works” as “prevention of repeated procedures for the smooth implementation of public works,” if a project implementer disposes of the land acquired through consultation or expropriated to a third party, the changed project implementer is no longer required to recognize the change of the above public works, and thus, at least the changed project implementer should own the relevant land in order to recognize the change of the public works. Furthermore, in a case where the land acquired through consultation or expropriated for public works is disposed of to a third party, such land shall be deemed unnecessary for the relevant public works, barring any special circumstance, and the same applies to the changed public works. Therefore, if such land is disposed of to a third party, not for the changed project implementer, there is no room to recognize the change of the public works.

[6] In a case where a local government acquired a school site through consultation for an elementary school construction project under an urban management plan, but it was changed to exchange a new elementary school site and the above school site in the apartment complex, and to build a middle school in the above school site, the case holding that the above land was no longer necessary for the pertinent project, and further, the above school site was disposed of to a third party, not an implementer of the construction project, and thus, it cannot be acknowledged that the conversion of the above school site was made.

[1] Articles 20(1) and 91(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Articles 88 and 96(2) of the National Land Planning and Utilization Act / [2] Article 91(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works / [3] Article 91(6) of the Act on Acquisition of and Compensation for Land, etc. for Public Works / [4] Articles 20(1) and 91(6) of the Act on Acquisition of and Compensation for Land, etc. for Public Works / [5] Article 20(1), 22, and 91(1) and (6) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects; Articles 88, 91(2), 96(2) and (4) of the National Land Planning and Utilization Act; Article 51(7) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[1] [3] Supreme Court Decision 93Da11760, 11777, 11784 decided Jan. 25, 1994 (Gong1994Sang, 795) / [1/4] Supreme Court Decision 97Da36835 decided Nov. 11, 1997 (Gong1997Ha, 374) / [1] Supreme Court Decision 2009Da43041 decided Oct. 15, 2009 (Gong209Ha, 1849) (Gong209Ha, 1849), Supreme Court Decision 2010Da12043, 12050 decided May 13, 201 (Gong2010Sang, 12050) / [2] Supreme Court Decision 97Da38979 decided Apr. 19, 198, 209; Supreme Court Decision 2007Da13839797985 decided Apr. 197, 19797094

Plaintiff 1 and six others (Attorneys Jeon Sung-sung et al., Counsel for the plaintiff-appellee)

Seoul High Court Decision 201Na1448 delivered on August 1, 201

Seoul High Court Decision 2009Na64286 decided March 18, 2010

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. As to the assertion of misapprehension of legal principles as to the business discontinuance

The term “relevant project” under Article 91(1) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation for Land, etc. for Public Works as stipulated for a repurchase right (hereinafter “Public Works Act”) means a specific public project which is an object of the acquisition through consultation or expropriation of land and is specific at the time of obtaining project approval under Article 20(1) of the Public Works Act, and where it is deemed that the authorization of an implementation plan for an urban planning facility project under Articles 88 and 96(2) of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) is the project approval under Article 20(1) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation for Land, etc. for Public Works Projects as stipulated for a repurchase right, the determination of whether a specific public project has become an objective of acquisition through consultation or expropriation as stipulated in Article 91(1) of the Act on the Acquisition of Land, etc. for Public Works Projects and whether the land has been acquired through consultation or alteration of the purpose of the project in question is no more than an objective or part of the land acquired.

According to the reasoning of the judgment below and the records, Defendant Gyeonggi-do did not acquire a group of lands near the land in this case as site for urban planning facility projects, but separately acquired the land in this case and its neighboring elementary school site (hereinafter “instant school site”) by the head of the District Office of Education as the project implementer, and the public site acquisition contract also states that “as to purchase land incorporated into the new school site for the Seosan City Office of Education”. According to the project plan prepared by Defendant Gyeonggi-do, it is the content of the instant project to newly establish Yangsan City-si Do Do - to accommodate the children of the newly constructed apartment site and to solve over-concentration and over-concentration of the nearby elementary school site for the purpose of constructing the new school site for the purpose of constructing the new school site for the new school site for the purpose of constructing the new school site for the purpose of which the implementation plan for the new school site is to be prepared and publicly announced as the type and name of the apartment site for the new school facilities project (school - industrial complex - the name of the school, the name of the school construction site and the site for the school site.”

In light of the aforementioned facts in light of the legal principles as seen earlier, the pertinent project, including the instant land, is “Yyang Elementary School Construction Project,” and the “middle School Construction Project” shall be deemed a separate project that does not maintain the identity and identity with the original purpose of acquiring the instant school site. In addition, by Defendant Gyeonggi-do disposing of the instant school site to the Defendant Company and modifying an urban management plan to establish a middle school on the instant school site, the “Ysan Elementary School Construction Project,” which is the purpose of acquiring the instant consultation, was abolished or modified, and the instant land was no longer necessary for the said project.

The decision of the court below to the same effect as to the discontinuation or modification of public works is justifiable, and there is no illegality in the misapprehension of legal principles as to the discontinuation or modification of the relevant project, which is the requirement of exercise

2. As to the assertion of misapprehension of the legal principle as to exclusion period

Article 91 (1) of the Public Works Act provides that "any parcel of land in question may be redeemed within one year from the time when all or part of the land in question becomes unnecessary or within ten years from the date of acquisition of the land in question" means that the repurchase right may be exercised within one year from the time of acquisition if the land in question becomes unnecessary within ten years from the date of acquisition, and the repurchase right may be exercised within ten years from the date of acquisition if ten years have not passed since the date of acquisition of the land in question, and it is reasonable to interpret that the repurchase right holder may exercise the repurchase right lawfully (see Supreme Court Decisions 86Da324, 86Da1579, Apr. 14, 1987; 94Da31310, Feb. 10, 195, etc.).

In the same purport, the lower court is justifiable to have determined that the period of exclusion of the instant redemptive right has not elapsed, and there is no illegality in matters of law, such as misunderstanding of legal principles as to the limitation period of the redemptive right. The Defendant Company’s ground of appeal purporting that the Supreme Court’s decision should be modified to the effect that the right of repurchase should not be exercised without asking whether ten years have elapsed since the date of acquisition of the land when the land becomes unnecessary. It is not acceptable

3. As to the assertion of misapprehension of the legal principle as to the conversion of public works

A. We first examine the effects of conversion of public works.

Article 91(6) of the former Public Works Act (amended by Act No. 10239, Apr. 5, 2010) provides that “Where a public institution prescribed by Presidential Decree among public institutions designated and publicly notified pursuant to Articles 4 through 6 of the Act on the Management of the State, Local Governments or Public Institutions acquires land necessary for a public project after obtaining project approval and acquires it through consultation or expropriates it, and then the relevant public project is changed to any other public project provided for in subparagraphs 1 through 4 of Article 4, the period for exercising the right to repurchase provided for in paragraphs (1) and (2) shall be counted from the date on which the change of the relevant public project is publicly notified in the Official Gazette.”

In principle, the exercise of the right to expropriate land, etc., which limits the property rights of the public, shall be limited to the minimum necessary to implement a specific public project, which is essential and inevitable to promote the public welfare. Thus, if the whole or part of the land acquired for the public project becomes unnecessary due to the abolition or change of the whole or part of the specific public project following the change of circumstances, etc., it shall be deemed that the proprietor once returned the land to the repurchase right holder who exercises the right to repurchase even if it is necessary for a new public project, he/she shall take the procedure of re-acquisition or expropriate the land again. However, in cases where the initial public project is changed to another public project with a high level of public interest and it is necessary to continue to use the land for that other public project, the act of acquiring the land again by consultation, expropriation, etc. after recognizing the exercise of the right to repurchase may cause an excessive time, effort, and waste of expenses, and hindering the smooth implementation of the public project, thereby restricting the exercise of the right to repurchase by recognizing the "conversion of the public project" to prevent this from this.

In light of the legislative purport that recognized the conversion of the above public works, Article 91(6) of the Public Works Act provides that even when the land acquired through consultation or expropriated due to the abolition or alteration of the relevant public works for which project approval has been granted becomes unnecessary, in cases where the land acquired through consultation or expropriated is changed to another public works permitted to be converted under the above provision, the original owner of the relevant land or his/her general successor shall not have the right to repurchase (see, e.g., Supreme Court Decision 93Da11760, Jan. 25, 1994; 93Da11777, 11784, Jan. 25, 1994) and the term “the period of exercise of the right to repurchase under the provisions of paragraphs (1) and (2) shall be calculated from the date when the change is publicly announced in the Official Gazette” means “the period of exercise of the right to repurchase under the provisions of paragraphs (1) and (2) cannot be exercised again based on the newly modified public works.

Nevertheless, the court below determined that the alteration of the period of the exercise of the repurchase right can only be changed due to the alteration of the public works, but it does not limit the exercise of the repurchase right. Therefore, the court below erred by misapprehending the legal principles on the effects of the alteration of the public works.

B. It shall be deemed as project approval for the following changed project:

The conversion of public works under Article 91(6) of the Public Works Act limits the exercise of repurchase rights only when the public works for which the approval of the project under Article 20(1) of the Public Works Act has been granted are changed to other public works with high public interests within a certain scope. Thus, the restriction on the exercise of repurchase rights due to the conversion of public works can be acknowledged only when it can be deemed that the approval of the project has been granted under Article 20(1) of the Public Works Act or that the approval of the project has been granted under the provisions of other Acts deemed to have been granted under the said provisions (see Supreme Court Decision 97Da36835, Nov. 11, 1997, etc.).

However, according to Articles 88 and 91 of the National Land Planning and Utilization Act, an implementer of an urban planning facility project shall prepare an implementation plan for the project as prescribed by Presidential Decree (Article 88(1)), obtain authorization from the Minister of Land, Transport and Maritime Affairs, a Mayor/Do Governor, or a large city mayor (Article 88(2)), and the same shall apply to the modification or abolition of an implementation plan authorized. However, the same shall not apply to any modification to insignificant matters prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs (Article 88(4)), the Minister of Land, Transport and Maritime Affairs, a Mayor/Do Governor, or a large city mayor, if an implementation plan is prepared or authorized, shall be publicly notified (Article 91). According to Article 96(2) of the National Land Planning and Utilization Act, in cases where an implementation plan is publicly notified pursuant to Article 91 of the same Act, project approval and public notification pursuant to Articles 20(1) and 22 of the Act shall be deemed to have been granted, so long as it does not correspond to an urban planning facility project under the National Land Planning Act.

Furthermore, according to Articles 4 and 5 of the School Facilities Projects Promotion Act, when the State or a local government intends to implement a school facilities project, it shall prepare an execution plan and announce it after consultation with the head of the competent administrative agency (the main sentence of Article 4(4)) (Article 4(7)) and Article 4(4) (Article 88 of the National Land Planning and Utilization Act).

According to the reasoning of the judgment below, on November 24, 2003, the Osan City decided and publicly announced an urban planning plan (urban planning facilities) which includes the establishment of Yangsan Elementary School in the school site of this case on November 24, 2003 pursuant to Article 30 of the National Land Planning Act, and on December 28, 2005, with respect to the elementary school construction project, the implementation plan was authorized and publicly announced pursuant to Articles 8 and 91 of the National Land Planning Act. The head of the Gyeonggi-do District Office of Education, the project implementer, prepared an implementation plan for the school facilities project pursuant to Article 4 (4) of the School Facilities Projects Promotion Act on January 2, 2006 and announced it to the competent administrative agency. After that, on August 19, 2009, the Osan City Mayor separately determined the content of the school facilities project under Article 8 of the National Land Planning Act including the establishment of the school facilities project under Article 4 (7) of the same Act and the content of the plan.

The court below's decision that the project approval under the Public Works Act was not granted for a middle school construction project is just in accordance with the above legal principles and fact-finding, and there is no illegality in the misapprehension of legal principles as to the project approval under the Public Works Act or Article 96 (2) of the National Land Planning and Utilization Act, contrary to

C. Meanwhile, in light of the legislative intent recognizing “the conversion of public works” as seen earlier, prior to the prevention of repeated procedures for the smooth implementation of public works, inasmuch as there is no need to recognize the conversion of the above public works due to the relationship that the project implementer acquired through consultation or expropriateds the relevant land to a third party, the changed project implementer is required to re-acquisition the land from a third party for the implementation of the project, and thus, at least the changed project implementer is required to own the relevant land in order to recognize the conversion of the public works. Furthermore, in cases where the land acquired through consultation or expropriated for the public works is disposed of to a third party, such land shall be deemed unnecessary for the relevant public works, barring any special circumstance, and the same applies to the changed public works. Therefore, there is no room to acknowledge the conversion of the public works if the land was disposed of to a third party, other than the changed project implementer.

According to the reasoning of the judgment below and the record, even if Defendant Gyeonggi-do concluded an exchange contract on the instant school site owned by Defendant 1 company, because it is merely a fact that Defendant 6 company could not purchase the instant apartment site in the vicinity of the instant school site, and that Defendant 6 company could not purchase the instant apartment site at the same price as that of the Plaintiff’s new school site for the purpose of attracting profits, such as the increase in apartment prices, by attracting an elementary school in apartment complex, or on the condition of attracting an elementary school, to avoid liability to the buyers of the instant housing construction project. This is because, according to the law of convenience, it is the fact that Defendant 6 company could not purchase the instant apartment site in the future because it is likely that it would be possible for Defendant 6 company to purchase the instant new school site in the form of donation from Defendant 4 company to purchase the instant apartment site in the vicinity of the instant school site. However, Defendant 6 company could not be able to purchase the instant apartment site at the same time as that of the Plaintiff’s new school site for the purpose of construction of this case.

D. Therefore, while the judgment of the court below on the conversion of public works is partly erroneous as seen earlier, the conclusion of the court below, which did not recognize the conversion of public works and accepted the exercise of the plaintiffs' repurchase right, is justifiable. Therefore, this part of the ground of appeal by the defendant company is without merit.

4. Conclusion

Therefore, all appeals are 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 on the bench.

Justices Cha Han-sung (Presiding Justice)