[1] In a case where an executor of an urban planning project acquires land owned by another person or fails to file an application for adjudication on expropriation under a private contract within the project implementation period stipulated in the authorization of an implementation plan of an urban planning project, whether the authorization of an implementation plan of such urban planning project is invalidated

[2] Where a landowner within an urban planning project area does not consent to an urban planning project, the case holding that the implementor of an urban planning project can either acquire the land through consultation or implement an authorized urban planning project within the project implementation period

[1] In full view of the provisions of Articles 29(1) and 30(1) and (2) of the former Urban Planning Act (amended by Act No. 4427 of Dec. 14, 191) and Articles 16 and 17 of the Land Expropriation Act, an executor of an urban planning project only establishes a specific right of expropriation on the condition that the right to implement an urban planning project is granted due to the authorization and public notice of the implementation plan of the project and should undergo a certain procedure. At the latest, an executor of the urban planning project shall take over the land owned by another person or apply for a ruling on the land necessary for the urban planning project according to a contract under private law within the project implementation period stipulated in the authorization of the implementation plan of the urban planning project publicly notified, and if the procedure for such acquisition

[2] Where a landowner within an urban planning project area does not consent to an urban planning project, the case holding that an implementer of an urban planning project may acquire the land through consultation or implement an authorized urban planning project within the project implementation period

[1] Articles 25, 26, 29(1), and 30 of the former Urban Planning Act (amended by Act No. 4427 of Dec. 14, 191); Articles 2, 16, and 17 of the Land Expropriation Act / [2] Articles 25, 26, 29(1), and 30 of the former Urban Planning Act (amended by Act No. 4427 of Dec. 14, 191); Articles 2, 16, and 17 of the Land Expropriation Act

[1] Supreme Court Decision 80Da3269 delivered on December 22, 1981 (Gong1982, 177), Supreme Court Decision 90Nu971 delivered on November 26, 1991 (Gong1992, 323) decided May 24, 1994 (Gong1994Ha, 1847), Supreme Court Decision 97Nu2191 delivered on December 26, 197 (Gong198Sang, 421)

Claimant (Attorney Kim Yong-mun, Counsel for plaintiff-appellant)

[Defendant-Appellant] Defendant (Attorney Ha Young-young, Counsel for defendant-appellant)

Busan High Court Decision 99Na2034 delivered on December 10, 1999

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

The grounds of appeal are examined.

1. On the first ground for appeal

The court below determined that the debtor applied for the permission for the creation of a housing site within 146 lots and 47,50 square meters (hereinafter referred to as the "project area of this case") within 190, and that the debtor applied for the construction of a housing site within 20,000 square meters of the project area of this case, including the land of this case, for the construction of a housing site development project within 3 percent of the total land area of this case which was enforced on April 4, 1991, and the construction of a housing site development project within 9, 13 (hereinafter referred to as the "former Urban Planning Act") under Article 6 of the same Act; and that the debtor applied for the construction of a housing site development project within 9,000 square meters of the project area of this case, including the land of this case, within 3 percent of the total land area of this case; the construction of a housing site within 9,000 square meters of the total land area of this case; and that the head of the branch office of Yang-gun-gun-gun-gun-gun Special Metropolitan City.

In light of the records and relevant legal provisions, the above fact-finding and judgment of the court below are just and there is no violation of law as otherwise alleged in the ground of appeal.

The ground of appeal on this part is without merit.

2. As to the remainder

Comprehensively taking account of the provisions of Articles 29(1), 30(1) and (2) of the former Urban Planning Act, and Articles 16 and 17 of the Land Expropriation Act, the executor of the urban planning project is merely granted the right to expropriate the land owned by another person or apply for adjudication on the expropriation of the land necessary for the urban planning project under private contract within the project implementation period as determined by the authorization of the implementation plan of the urban planning project publicly notified at the latest. If the acquisition procedure is not prior to the execution procedure, the authorization of the implementation plan of the urban planning project becomes effective (see, e.g., Supreme Court Decisions 90Nu971, Nov. 26, 1991; 93Nu24230, May 24, 1994; 97Nu2191, Dec. 26, 1997; 208Da2191, Dec. 26, 1997).

As seen earlier, the court below held that since the debtor did not obtain the consent of the creditor who is the owner of the land of this case or acquire through consultation or expropriate the land of this case when the execution period of the housing site creation project of this case has already expired, the debtor is trying to execute the construction of this case even though he could not perform the construction of the housing site creation project, such as changing the form and quality of the land of this case, the creditor who is the owner of the real estate of this case can seek the exclusion of the above construction based on his ownership, and further, the creditor who did not consent to the housing site creation project of this case cannot seek the exclusion of the above construction project of this case does not constitute an abuse of rights. Such decision of the court below is just in accordance with the above legal principles, and there is no error of law such as misconception of facts and misapprehension of legal principles as otherwise alleged in the ground of appeal. The

The ground of appeal on this part is without merit.

3. Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the debtor who has lost. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Cho-Un (Presiding Justice)