[1] In a case where a redevelopment project was changed from a method of self-development to a joint redevelopment method to a local government, whether the said redevelopment cooperative succeeds to the rights and obligations of the local government by applying Article 6 of the former Urban Redevelopment Act as the provision on succession to the rights and obligations of the local government (negative)

[2] The meaning and scope of “third party” under the proviso of Article 548(1) of the Civil Act, and whether the legal principle on the protection of a third party in the termination of a contract may apply mutatis mutandis to a contract subject to a condition subsequent (affirmative)

[3] The legal nature of the parcelling-out disposition in the redevelopment project (=disposition in public law) and in a case where a public notice of the parcelling-out disposition is made before the cancellation of the contract, whether the parties to the contract to the redevelopment project and the buyer who had not been aware of the cancellation of the contract can claim the effect of the cancellation (negative)

[4] The case holding that the redevelopment partnership cannot file a claim for return of unjust enrichment against the redevelopment partnership because it fell under the category of "third party" under the proviso of Article 548 (1) of the Civil Code, in case where the redevelopment partnership newly created by the redevelopment project implementer due to the change in the method of redevelopment project had not cancelled the ownership transfer registration under the name of the local government since the redevelopment project became invalid due to the fulfillment of the terms and conditions of rescission

[1] Article 6 (2) of the former Urban Redevelopment Act (amended by Act No. 5288 of Jan. 13, 1997) provides for the succession of rights and obligations by stipulating that "when there is a change in the implementer or right holder, the previous implementer and right holder, or the disposal, procedures and other acts conducted by the implementer or against the implementer and the right holder in accordance with this Act or the order, covenant, articles of association, or implementation regulations under this Act shall be deemed to have been conducted by the new implementer and right holder, or by the new implementer and right holder, the new implementer and right holder shall be deemed to have been conducted." However, while the method of self-development is the form of construction and administrative support by the local government as the implementer and the housing is the form of construction by the residents, the joint redevelopment is the form of construction by the local government as the owner of the house and the land in the project area with the legal capacity of the statutory implementer and the development method is completely different from the above two methods. In light of the fact that the implementation of the redevelopment project was abolished by the local government's announcement.

[2] The proviso of Article 548(1) of the Civil Code provides that "the cancellation of a contract shall not prejudice the rights of a third party." The third party refers to not only a person who, in principle, has a new interest before the cancellation of a contract based on the legal effect arising from the rescission, but also a person who has acquired a complete right by registration, delivery, etc., but also a legal relationship which is not compatible with the claimant who asserts the cancellation of the contract after the cancellation of the contract. A third party who had known the fact of cancellation of the contract has also been a third party under the above provision, and the legal principle on the protection of a third party due to such termination of a contract may apply mutatis mutandis to the case where the termination of a contract is fulfilled with the fulfillment of the conditions for the cancellation

[3] In the redevelopment project, the sale price is determined by the redevelopment project and the location and scope of the site or constructed facilities created or constructed by the redevelopment project for the previous land or building within the redevelopment area; the amount equivalent to the difference is liquidated; or the person who purchased the site and constructed facilities is entitled to the ownership of the site or constructed facilities on the following day, if the sale is publicly notified, so the purchaser of the site and constructed facilities acquires the ownership of the site or constructed facilities; thus, if the sale registration is publicly notified before the cancellation of the contract, the redevelopment partnership and the buyer shall be deemed to fall under the “person who acquired the complete right by the registration, delivery, etc.,” and thus, the party to the contract to the contract to whom the contract was cancelled shall not claim the termination of the contract to the redevelopment partnership

[4] The case holding that the redevelopment association cannot file a claim for return of unjust enrichment against the redevelopment association because it constitutes a "third party" under the proviso of Article 548 (1) of the Civil Code, in a case where the redevelopment association newly formed by the redevelopment project implementer due to the change in the method of redevelopment project had not cancelled the ownership transfer registration under the name of the local government since the land donation contract to the local government, which is the developer of the redevelopment project, became invalid due to the fulfillment of the terms and conditions of rescission, and the redevelopment project was conducted by mistake as the real owner of the local government and then the redevelopment project was completed without compensation, and the subsequent

[1] Article 6 (2) of the former Urban Redevelopment Act (amended by Act No. 5288 of Jan. 13, 1997) / [2] Article 548 (1) of the Civil Act / [3] Article 39 (1) of the former Urban Redevelopment Act (amended by Act No. 5288 of Jan. 13, 1997), Articles 548 (1) and 741 of the Civil Act / [4] Article 39 (1) of the former Urban Redevelopment Act (amended by Act No. 5288 of Jan. 13, 1997), Articles 548 (1) and 741 of the Civil Act

[2] Supreme Court Decision 94Da35343 delivered on November 15, 1996 (Gong1997Sang, 1) Supreme Court Decision 99Da51685 delivered on April 11, 200 (Gong2000Sang, 1177) Supreme Court Decision 2003Da33004 Delivered on January 14, 2005 (Gong2005Sang, 274)

Plaintiff (Law Firm Taesung, Attorneys Park Hun-young, Counsel for the plaintiff-appellant)

Intervenor (Attorney Kang Chang-ro, Counsel for defendant-appellant)

Defendant Housing Improvement Development Cooperatives (Attorney Yoon Jae-sik et al., Counsel for the defendant-appellant)

Intervenor (Law Firm Han-han, Attorneys Park Jong-sik et al., Counsel for the intervenor-appellant)

May 31, 2007

1. The successor's claims, and all claims against the succeeding intervenor and the succeeding intervenor and the defendant are dismissed; and

2. Of the costs of lawsuit, the part relating to the lawsuit shall be borne by the succeeding intervenor, and by the independent party intervenor, respectively.

The defendant shall pay to the successor intervenor 688,950,000 won with 5% interest per annum from December 24, 2004 to the pronouncement date of this case, and 20% interest per annum from the next day to the day of full payment.

An independent party participation: It is confirmed that the area of 688,950,000 won and the amount of 20% per annum from the following day to the date of full payment is owned by the independent party intervenor. The defendant shall pay to the independent party intervenor the amount of 688,950,000 won and the amount of 5% per annum from December 24, 2004 to the date of the instant judgment, and the amount of 20% per annum from the next day to the date of full payment.

1. Basic facts

A. Nonparty 1, prior to the division, was the owner of 837-1776 forest land in Dobong-gu Seoul Metropolitan Government (hereinafter “the land before the division”). On December 1, 1973, the Ministry of Construction and Transportation, pursuant to Article 2 of the former Act on Temporary Measures for the Promotion of Housing Improvement ( enacted by Act No. 2581 on March 5, 1973 and effective until December 31, 1981), designated the land before the division as “Seoul, Dobong-gu Children 837 and 363,80 square meters, including the land before the division of this case, as Seoul, the owner of the land in such area was restricted from the act of new construction, extension, reconstruction, division, etc. of the house.”

B. On October 18, 1974, Seoul Special Metropolitan City enacted and implemented a civil petition handling guidelines within the redevelopment area for housing improvement under Article 279 of the Seoul Special Metropolitan City's established rules based on the provisions of Article 4 of the former Urban Planning Act (amended by Act No. 2988, Dec. 31, 1976) in order to prevent civil petitions within the redevelopment area in advance and promote a reasonable redevelopment project. After the amendment, the Seoul Special Metropolitan City enacted and implemented the guidelines for deliberation on the construction, reconstruction, heavy construction, division, land division, change of the form and quality of the land within the redevelopment area, etc. The main contents of the guidelines for deliberation are as follows.

(1) The land category as an application land that is not contrary to the redevelopment project plan in the future shall be the site, and the site area in the residential area shall be at least 165 square meters on the public cadastral book, and the existing road abutting on the application land shall conform to the relevant laws and regulations and shall not interfere with the establishment of a road plan under the redevelopment project

(2) A condition may be imposed on donation prior to permission for an area equivalent to a decrease in the future management and disposition plan. In such cases, the land to be donated shall be the land that can be used on the road and the site, and if it is unnecessary to use it in the future, it may not be donated.

C. Nonparty 1 applied for a new building permit on the land before the instant partition in Seoul Special Metropolitan City, and the Seoul Special Metropolitan City demanded the donation of a certain area of land available for road and housing site through the division of land in accordance with the above criteria for deliberation, and Nonparty 1 divided the land before the instant partition into 837-176 square meters on January 20, 1983, which was divided into 837-177 square meters for children of Dobong-gu, Seoul, and 693 square meters for roads 837-1777 square meters for the same time, 837-178 square meters for roads, 34 square meters for the same time, 837-178 square meters for roads, 837-1779 square meters for the same time

D. On February 28, 1983, Nonparty 1 entered into a donation contract (hereinafter “instant donation contract”) with intent to donate the land to the Seoul Special Metropolitan City on a road of 837-1777 square meters for children of Dobong-gu, Seoul, and 34 square meters for 837-1778 square meters for roads of 693 square meters (the administrative district is changed to children of Gangseo-gu, Seoul, on March 1, 1995; hereinafter “each land of this case”). On April 29, 1983, Nonparty 1 completed the registration of ownership transfer under each name of the Seoul Special Metropolitan City on April 29, 1983 with permission from the head of Dobong-gu, Seoul Special Metropolitan City on April 29, 1983, and entered into the said new building agreement with the head of Gangseo-gu, Seoul Special Metropolitan City on a new building agreement as follows.

The term "land donated by the landowner" shall be calculated by calculating the area of the right by multiplying the previous land (including the land subject to application) in applying the depreciation rate under the Land Management and Disposal Plan (Land Substitution) of Seoul Special Metropolitan City at the later time when the Seoul Special Metropolitan City makes a housing improvement redevelopment project, and the land owner shall pay the land or money for the shortage due to settlement for the subsequent reasons of the project implementation after dividing the land."

E. At the time of the donation contract of this case, the first house improvement redevelopment zone of the United States, the Seoul Special Metropolitan City, the project implementer, newly constructed and maintained public facilities, such as roads, parks, and tap water supply facilities, according to the determination of urban planning facilities, and the owner of land and buildings within the zone performed the self-development project on the substituted land to be sold in accordance with the management and disposal plan formulated by the Seoul Special Metropolitan City. However, the head of Dobong-gu Office abolished the self-development project to the Seoul Special Metropolitan City, which is the project implementer, and requested the modification of the plan for the joint redevelopment project that the owner or redevelopment cooperative of the land, etc. to implement the joint redevelopment project that becomes the project implementer. The Seoul Special Metropolitan City decided to revise the project plan under the Ordinance No. 312 of Sep. 24, 1994 and the notification No. 373 of Dec. 29, 195, the first house improvement redevelopment zone of the United States and the first house improvement redevelopment zone of the United States and the second house improvement redevelopment zone of the United States.

F. On May 30, 1996, the Defendant Housing Improvement Cooperative established by the owner of the land, etc. in Zone I and Zone II housing Improvement Development Zone (hereinafter “Defendant Cooperative”) obtained the establishment of redevelopment partnership and the authorization for project implementation from the head of Gangseo-gu, the head of Gangnam-gu, which is subject to the authorization for project implementation. Article 45 of the conditions for the authorization for project implementation stipulates, “The land in conflict with the urban planning road within 20-25 meters of the acquisition epicty road in the execution zone shall be maintained first, so as not to impede road construction, and it shall be reverted without compensation to the administrative agency to manage the relevant facilities pursuant to Article 8

G. The Seoul Special Metropolitan City, upon the modification of the redevelopment project plan, transferred each of the instant land included in the project area to the Defendant Cooperative without compensation, and the Defendant Cooperative announced the sale on December 16, 2004 on the premise that the redevelopment project was carried out, and on which December 16, 2004, the Defendant Cooperative: (a) divided the size of 545 square meters into 147-1777 and 148 square meters for children of Gangseo-gu Seoul Special Metropolitan City, Gangseo-gu into 545 square meters; and (b) the said size of 837-1778 square meters into 34 square meters on the same 54 square meters as that of the said 837-1778 square meters into 20-25 square meters in the project area; and (c) the remaining 148 square meters into a multi-unit housing site by taking a replotting disposition under the same 1354 square meters as a site.

H. As the registration of a site ownership, etc. due to the public notice of the above sale of land was completed on December 24, 2004, the registry of each of the instant land was closed at that time.

I. On the other hand, on May 21, 2004, the plaintiff (ex-trustee and the actual buyer is the non-party 2; hereinafter "the plaintiff") filed a lawsuit against the non-party 1 claiming for the registration of ownership transfer of each of the instant land and the cancellation of ownership transfer registration of each of the instant land against the non-party 1. The Seoul Central District Court rendered a favorable judgment as follows in the case No. 2004Gahap38957 decided Dec. 16, 2004.

“Non-party 1: (a) determined that each of the instant lands was not used for the first house improvement redevelopment project due to the lack of land, or that the management and disposal plan was not implemented based on the ownership relationship before the said donation; and (b) determined that each of the instant lands was donated to Seoul Special Metropolitan City on September 24, 1994; and (c) cancelled the plan to use each of the instant lands as a road site and housing site through the management and disposal plan executed by the Seoul Special Metropolitan City, the Seoul Special Metropolitan City (Seoul Special Metropolitan City)’s public notice on September 24, 1994 on the change of the project plan under Article 312 of the Seoul Special Metropolitan City’s public notice on September 24, 1994; and (d) determined

Therefore, the Seoul Special Metropolitan City is obligated to implement the procedure for registration of cancellation of ownership transfer registration for each of the lands of this case, which was completed by the Seoul Northern District Court No. 30284 on April 29, 1983. Nonparty 1 is obligated to implement the procedure for registration of ownership transfer registration for the Plaintiff on December 23, 2003, respectively.

(j) The above judgment was finalized on February 3, 2005 because Seoul Special Metropolitan City did not file an appeal, and the Seoul Special Metropolitan City notified the head of Gangnam-gu Office of the fact that it lost in the above lawsuit, and the head of Gangnam-gu notified the defendant union again.

[Ground of recognition] In the absence of dispute, Gap evidence 1 through 4, Gap evidence 10, Eul evidence 13, Eul evidence 1, Eul evidence 4, Eul evidence 6 through 10, and Eul evidence 6 through 10

2. Judgment on the claims of the succeeding intervenor

A. As to whether the defendant union succeeded to the duty of compensation of damages in Seoul Special Metropolitan City

(1) Notes

The successor intervenor acquired the damage claim amount corresponding to the market price of each land of this case against the Seoul Special Metropolitan City because the obligation to cancel the registration of ownership transfer of the Seoul Special Metropolitan City was impossible, and the defendant union succeeded to the obligation of the Seoul Special Metropolitan City pursuant to Article 6 of the Urban Redevelopment Act, and thus, the non-party 1 acquired the damage claim against the defendant union, and the successor has acquired the damage claim from the plaintiff who acquired the damage claim from the plaintiff who acquired the damage claim from the subject (subject) due to the non-party 1's non-party 1's non-party 1's non-performance of obligation to transfer ownership registration.

(2) Determination:

First, in relation to whether the Seoul Special Metropolitan City is liable for damages against the non-party 1, according to the above facts of the recognition, the land of this case is divided into the road of Seoul Special Metropolitan City after a replotting disposition, and the remaining part is incorporated into the site of apartment, and the duty to register cancellation of ownership transfer registration against the non-party 1 of Seoul Special Metropolitan City as to the part incorporated into the site of the above apartment, the right to site registration, and the part incorporated into the above road, in light of the transactional concept in that it is a road provided for public interest as to the part incorporated into the above road (the fact that it is a road provided for public interest, unlike this, can not be seen that the above obligation to register cancellation was omitted in the impossibility of performance, as long as the defendant association judged that it did not succeed to the above obligation to compensate for damages of this case, it does not affect the conclusion of this case). Accordingly, the Seoul Special Metropolitan City shall be liable for damages equivalent to the market price of each land of this case at the time of non-party

Then, as to whether the Defendant Cooperative succeeded to the obligation of compensation for the above damages in Seoul Special Metropolitan City, Article 6 (2) of the former Urban Redevelopment Act (amended by Act No. 5288 of Jan. 13, 1997; hereinafter the same shall apply) provides that "if there is a change between the implementer and the rightful owner, the previous implementer and the rightful owner, or the disposal, procedure, and other acts performed by the implementer and the rightful owner as prescribed by this Act or by the order, rules, articles of association or implementation regulations under this Act, shall be deemed to have been performed by the new implementer and the rightful owner, or by the new implementer and the new rightful owner, the rights and obligations of the redevelopment project shall be deemed to have been succeeded." However, although the self-development method becomes a local government and takes charge of the installation and administrative support of public facilities as the developer and the construction of the residents, the joint redevelopment method is completely different from the development method of the two, which is wholly different from the above method of executing the redevelopment project by autonomously constituting the legal implementer's qualification, and there is no room for succession of the above redevelopment project.

B. As to whether the Defendant Union is liable to return unjust enrichment to Nonparty 1

(1) Notes

The succeeding intervenor asserts that the Defendant Union is liable to return the unjust enrichment equivalent to the settlement money to the non-party 1, and that the succeeding intervenor received the above claim for return of unjust enrichment from the Plaintiff acquired the above claim for return of unjust enrichment due to the non-party 1’s non-performance of the obligation of transfer of ownership registration, and thus, the Defendant Union is liable to return the unjust enrichment equivalent

(2) Determination:

(A) According to the above facts, the following points are recognized. ① The gift contract of this case was fulfilled on September 24, 1994 the condition of cancellation was lost from that time (Article 147(2) of the Civil Act). Nonparty 1 recovered ownership of each of the land of this case regardless of whether the transfer registration of ownership in the name of Seoul Special Metropolitan City was cancelled. ② At the time of the establishment authorization of this case, Nonparty 1 was the owner of each of the land of this case within the redevelopment area, and naturally became a member of the defendant association (see Supreme Court Decision 97Nu17094 delivered on March 27, 1998). ③ Nonparty 1 did not apply for parcelling-out, and the defendant association did not have accepted each of the land of this case, and thus, the defendant association paid liquidation money to Nonparty 1 (the main sentence of Article 36 of the Urban Redevelopment Act). Accordingly, the defendant association acquired liquidation money to the non-party 1 and paid it to the non-party 1 without compensation.

Therefore, the defendant union shall be obliged to return unjust enrichment equivalent to the settlement money to the non-party 1, except in extenuating circumstances.

(B) Regarding this, the defendant union is a bona fide third party for the contract of this case, and thus the contract of this case and the transfer of each land of this case in Seoul Special Metropolitan City based on this is still effective in relation to the defendant union. Therefore, the defendant union asserts that there was no unjust enrichment. Thus, the proviso of Article 548 (1) of the Civil Code provides that "the cancellation of the contract shall not prejudice any third party's right." The third party's term in this context refers not only to a person who has a new interest before the cancellation of the contract, but also to a person who has acquired full rights by registration, delivery, etc. (see Supreme Court Decision 9Da51685 delivered on April 11, 200), but also to a third party who had not been aware of the termination of the contract after the cancellation of the contract, is also a third party as referred to in the above provision (see Supreme Court Decision 9Da51685 delivered on April 11, 2000).

Meanwhile, in the redevelopment project, the sale price is determined by the redevelopment project and the location and scope of the site or constructed facilities created or constructed by the redevelopment project for the previous land or building within the redevelopment area and is liquidated the amount equivalent to the difference in the price, or is liquidated in cash without establishing the site or constructed facilities. The purchaser of the site and constructed facilities has acquired the ownership of the site or constructed facilities on the following day if the sale order is publicly announced (Article 39(1) of the Urban Redevelopment Act). Thus, if the sale order is publicly announced before the completion of the registration of restitution due to the cancellation of the contract, the redevelopment partnership and the buyer shall be deemed to fall under the “person who has acquired the right in full by the registration, delivery, etc.” Therefore, the parties to the contract to the contract to which the termination was cancelled shall not claim the termination of the contract against the redevelopment partnership and

In this case, the Seoul Special Metropolitan City was still registered as the owner in the name of registration even though the validity of the gift contract of this case was terminated due to the fulfillment of the condition of cancellation. The defendant union received each land of this case from the owner before the ownership transfer registration was cancelled, and the sale disposition of this case was publicly announced on December 16, 2004, and the judgment against the Seoul Special Metropolitan City against which the obligation to register cancellation of ownership transfer registration was invalidated on February 3, 2005, which became final and conclusive on February 3, 2005, was notified to the defendant union. Accordingly, according to the above facts, the defendant union is a bona fide third party who acquired a new interest and has acquired a complete right before the restoration registration. Accordingly, the transfer contract of this case and the obligation to pay liquidation money to the non-party 1 of the defendant union still remains effective in relation to the defendant union. Accordingly, the defendant union's claim for the return of unjust enrichment on the premise that the contract of this case was null and void is no longer reasonable.

3. Determination on the claims of an independent party intervenor

A. As to the claim for confirmation of ownership

An independent party intervenor asserts that each of the lands of this case is owned by Nonparty 1, since he purchased each of the lands of this case from Nonparty 1, and thus it is acknowledged that the independent party intervenor purchased each of the lands of this case from Nonparty 1, as alleged by the independent party intervenor, as long as the independent party intervenor did not complete the registration of ownership transfer in the name of Nonparty 1, the independent party intervenor only has the right to claim ownership transfer registration against Nonparty 1, and it does not become the owner of each of the lands of this case. Thus, the above claim for confirmation

B. Regarding a claim for damages or a claim for restitution of unjust enrichment

An independent party intervenor purchased each land of this case from the non-party 1, and the non-party 1 has a damage claim or a claim for return of unjust enrichment against the defendant union, and since the non-party 1's obligation to transfer ownership to himself was omitted for performance, he acquired the above damage claim or the claim for return of unjust enrichment as its target. Therefore, the defendant union asserted that the defendant union has the obligation to compensate for damages or the obligation to return unjust enrichment to himself, and therefore, the defendant union does not bear the obligation to return unjust enrichment against the non-party 1. Thus, the above argument of the independent party intervenor on this premise is without merit without further review.

In addition, the independent party intervenor asserts that the defendant union lost the right to each land of this case by giving public notice of the sale order without selling the land and building facilities for redevelopment project to the independent party intervenor, without paying the liquidation money, constitutes a tort against the independent party intervenor. Thus, the defendant union's assertion that the independent party intervenor has the obligation to compensate for damages equivalent to the compensation for losses. Thus, even if the purchase of each land of this case from the independent party intervenor No. 1 is acknowledged, as alleged by the independent party intervenor No. 1, unless the registration of ownership transfer is completed, it cannot be deemed that the independent party intervenor becomes a member of the defendant union. Thus, the defendant union's failure to sell the land to the independent party intervenor or failure to pay the liquidation money, and the above assertion by the independent party intervenor is without merit.

4. Conclusion

Therefore, each claim against the succeeding intervenor, the succeeding intervenor by the independent party intervenor, and the defendant is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Yong-dae (Presiding Judge)