[1] Meaning of “public facilities” gratuitously reverted to the State or a local government pursuant to Article 33(6) of the former Housing Construction Promotion Act and the former part of Article 83(2) of the former Urban Planning Act, and whether facilities provided for joint use by only occupants or those provided for use by administrative agents are included therein (negative)

[2] The case affirming the judgment of the court below that the building and the share of the site of the Dong office are not included in the "public facilities" under Article 33 (6) of the former Housing Construction Promotion Act

[1] Article 33(6) of the former Housing Construction Promotion Act (amended by Act No. 3420 of Apr. 7, 1981) (see current Article 30(1) of the Housing Act), Article 83(2) of the former Urban Planning Act (amended by Act No. 4427 of Dec. 14, 191) (see current Articles 65(2) and 99 of the National Land Planning and Utilization Act) / [2] Article 33(6) of the former Housing Construction Promotion Act (amended by Act No. 3420 of Apr. 7, 1981) (see current Article 30(1) of the Housing Construction Promotion Act), Article 83(2) of the former Urban Planning Act (amended by Act No. 4427 of Dec. 14, 191) (see current Article 65(2) and Article 99(2) of the National Land Planning and Utilization Act)

Seocho-gu Seoul Metropolitan Government (Bae & Yang LLC, Attorneys Park Sang-hoon et al., Counsel for the plaintiff-appellant)

The Korean Land and Housing Corporation (Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2009Na55114 decided July 7, 2010

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

Article 33(6) of the former Housing Construction Promotion Act (amended by Act No. 3420 of Apr. 7, 1981; hereinafter “former Housing Construction Promotion Act”) provides that Article 83(6) of the former Housing Construction Promotion Act (amended by Act No. 3420 of Apr. 7, 1981; hereinafter “former Housing Construction Promotion Act”) shall apply mutatis mutandis to the attribution of public facilities where a project proprietor installs new public facilities or public facilities replacing the existing public facilities on the land within a project district, which has obtained approval of a project plan under paragraph (1) of this Article. In this case, an implementer of an urban planning project shall be deemed a project proprietor, and an implementation plan for an urban planning project shall be deemed a project operator, and the State or a local government shall gratuitously vest in the State or a local government to manage the relevant facilities after implementing an urban planning project (amended by Act No. 4427 of Dec. 14, 191; hereinafter the same “former Housing Construction Promotion Act”). The legislative purpose of the above provision is to efficiently secure and manage the public facilities beyond a certain housing construction project.

Meanwhile, Article 3 of the former Promotion Act defines the facilities or equipment prescribed by the Presidential Decree as “appurtenant facilities”, children’s playgrounds, markets, medical facilities, public bath, assembly and other public facilities necessary for the welfare of residents as “welfare facilities”, and Article 33(2) of the same Act requires that such incidental facilities and welfare facilities be included in a project plan. Article 35 of the same Act provides that a project proprietor who constructs housing shall install incidental facilities and welfare facilities and the standards for installation of such ancillary facilities and welfare facilities by type shall be determined by the Ordinance of the Ministry of Construction and Transportation. Article 3 of the former Enforcement Decree of the Promotion Act (amended by Presidential Decree No. 1048 of Aug. 24, 1981) provides that “other facilities or equipment equivalent thereto as prescribed by the Presidential Decree” shall be prescribed as “facilities and equipment of the said Ministry of Construction and Transportation” (amended by Presidential Decree No. 1048 of Aug. 24, 198), “facilities and equipment equivalent to those of the said Ministry of Construction and Transportation” shall be prescribed as “facilities of the said Ministry of Construction and Transportation No. 1 to 2 or 3.

Article 33(6) of the former State Promotion Act and Article 83(2) of the former Urban Planning Act provide that the state or a local government shall gratuitously vest in the private property of the citizens, and as such, a reasonable interpretation is required on the scope of gratuitous reversion under the above provision, in full view of the following: (a) public facilities under Article 33(6) of the former State Promotion Act do not mean public facilities, such as roads, water supply and drainage systems, which are installed and managed directly for the public use of the general public; and (b) it is reasonable to deem that public facilities are not included in facilities provided for the public use of the administrative body, such as facilities provided for the common use of the residents only, such as roads, water supply and drainage systems, public buildings, etc., (c) and (d) Article 2 subparag. 4 and [Attachment 4] of the former Enforcement Rule of the State Promotion Act and Article 83(2) of the former Urban Planning Act, and thus, require a reasonable interpretation on the scope of gratuitous reversion under the above provision.

From this point of view, the court below is just in holding that the share of the 1 Dong Office of Distribution of this case and its site is not included in the public facilities under Article 33 (6) of the former Jeju Promotion Act, and there is no error in the misapprehension of legal principles as to the scope of the public facilities subject to gratuitous reversion, or in the misapprehension of legal principles as to the scope of the public facilities subject to gratuitous reversion

Therefore, the appeal is dismissed. 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 Park Si-hwan (Presiding Justice)