Ownership of public facilities and the site for the public facilities installed by an urban planning project operator who is not an administrative agency pursuant to the Gu Urban Planning Act and the time when ownership belongs to the State or a local government (=the time of completion inspection)

[Majority Opinion] Article 83(2) of the former Urban Planning Act (amended by Act No. 4427, Dec. 14, 1991) provides that “Public facilities newly installed by an executor who is not an administrative agency after executing an urban planning project shall gratuitously revert to the State or a local government which will manage such facilities, and the property of the State or a local government, the function of which is replaced and the function of which is ceased to be ceased to exist due to the implementation of an urban planning project, may be transferred without compensation to the executor within the extent equivalent to the installation cost of the public facilities newly installed by him/her, notwithstanding the provisions of the State Property Act and the Local Finance Act.” Thus, upon the completion of an urban planning project, the ownership of the land and facilities constituting the relevant public facilities shall be reverted

[Separate Opinion] Article 83(2) of the former Urban Planning Act (amended by Act No. 4427 of Dec. 14, 191) provides that the new public facilities installed by an executor who is not an administrative agency after executing an urban planning project shall gratuitously revert to the State or a local government which will manage such facilities. Article 83(5) of the same Act provides that "It shall be deemed that the new public facilities belonging to the management agency pursuant to the provisions of paragraph (2) of the same Article shall be reverted to the management agency by giving notice of completion to the executor after completion of the project." This provision provides that "any change in real rights pursuant to the provisions of Article 187 of the Civil Act shall be deemed as its form" and Article 83(2) of the former Urban Planning Act (amended by Act No. 4427 of Dec. 14, 1991) provides that if it becomes impossible for the executor to attain the project's completion due to the completion of the project, it shall be deemed that it becomes impossible for the operator to become effective due to the new completion inspection of the project.

[Dissenting Opinion] In full view of the contents of Article 83(1) through (5) of the former Urban Planning Act (amended by Act No. 4427 of Dec. 14, 191), other provisions of the same Act, and other provisions of the positive law, Article 83(1) and (2) of the same Act shall be construed as the subject and method of attribution of public facilities (not compensation) and the latter part of Article 83(4) and (5) of the same Act respectively, and it is reasonable to interpret that the time when the ownership of public facilities installed by an implementer who is not an administrative agency belongs to the State or a local government is equal to the time of completion of the project under Article 83(5) of the same Act.

Article 83 of the former Urban Planning Act (amended by Act No. 4427 of Dec. 14, 1991)

Supreme Court Decision 84Nu131 delivered on December 11, 1984 (Gong1985, 173), Supreme Court Decision 90Nu7460 Delivered on July 10, 1990 (Gong1990, 1693), Supreme Court Decision 90Nu6972 Delivered on March 12, 1991 (Gong1991, 1196), Supreme Court Decision 94Da18195 delivered on February 24, 1995 (Gong195Sang, 1427), Supreme Court Decision 96Nu1160 delivered on June 11, 196 (Gong196Ha, 2208) (amended) (Gong196Ha, 2208), Supreme Court Decision 90Nu139759 delivered on September 26, 1997 (amended)

Osan City (Attorney Kim In-hwan, Counsel for the defendant-appellant)

Defendant 1 and one other (Attorney Kim Jong-hwan, Counsel for the defendant-appellant)

Seoul High Court Decision 95Na4101 delivered on May 10, 1996

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below notified Defendant 2 of the completion inspection of the above project on August 21, 1978 to the Plaintiff on the aggregate of 16 parcels of land, including real estate in the annexed list of the judgment below (hereinafter referred to as "land in this case"), 35,309 square meters, which is an urban planning project under Article 2 (1) 8 of the Act, after obtaining permission for the implementation of the urban planning project under Article 24 (1) of the former Urban Planning Act (amended by Act No. 4427, Dec. 14, 1991; hereinafter referred to as the "Act"), and determined that Defendant 2 did not voluntarily notify the Plaintiff of the completion inspection of the project on July 21, 1981, but did not have completed the completion inspection of the urban planning project on the land in this case, which is the type of the land in this case and the ownership of the land in this case before the completion of the urban planning project on March 12, 1992.

2. However, we cannot agree with the judgment of the court below.

Article 83(2) of the Act provides, “A public facility newly installed by an implementer who is not an administrative agency after implementing an urban planning project shall gratuitously vest in the State or a local government which will manage such facility and the property of the State or a local government, the function of which is replaced and ceased to exist due to the implementation of an urban planning project, may be transferred to the implementer without compensation to the extent equivalent to the installation cost of the public facility newly installed by the implementer, notwithstanding the provisions of the State Property Act and the Local Finance Act.” Thus, when a public facility is installed as a result of the implementation of an urban planning project, the ownership of the land and facilities constituting the public facility shall be reverted directly to the State or a local government which directly and indirectly manages such facility at the same time as the completion of the project (see, e.g., Supreme Court Decisions 84Nu131, Dec. 11, 1984; 90Meu7460, Jul. 10, 190; 90Nu6972, Mar. 12,

Article 83(5) of the Act provides that "in relation to the public facilities to be reverted to the management agency under paragraph (2) and the property to be assigned to an implementer, the implementer shall notify the management agency of the kinds and details thereof before completion of the urban planning project, and the implementer shall be deemed to have reverted to the management agency and transferred to the management agency by giving notification of completion of the project by the implementer after completion of the project and then the completion of the project shall be deemed to have been completed by the management agency," and if the implementer removes only the part that "a notification of completion of the project shall be deemed to have reverted to the management agency by giving notification of the completion of the project to the management agency," the implementer shall not be deemed to have reverted to the State or a local government only after giving notification of completion of the project to the management agency and even after completion of the completion inspection before giving notification of the completion of the project." However, the above paragraph (5) does not provide for the reference point for the reversion of the right.

Of the previous precedents (Supreme Court Decision 94Da18195 delivered on February 24, 1995, Supreme Court Decision 96Nu1160 delivered on June 11, 1996, Supreme Court Decision 96Nu18502 delivered on September 26, 1997, etc.), the part which appears to have changed its view is to be changed.

Therefore, the ownership of the instant land, which is the site of the public facilities (road) installed by Defendant 2 after implementing the urban planning project, was reverted to the Plaintiff on July 21, 1981, which is the date of completion of the urban planning project (the date of completion inspection). Nevertheless, the judgment of the court below that the Plaintiff did not acquire the ownership due to Defendant 2’s failure to notify the completion of the project, is erroneous in the misapprehension of legal principles as to the reversion of ownership of the public facilities

3. Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench, except for a dissenting opinion by Justice Lee Don-hee, Justice Kim Jong-sik, Justice Kim Jong-sik, Justice Lee Jae-sik, Justice Lee Jae-soo, and Justice Cho Cho Cho Jae-young as to the majority

4. The Concurring Opinion by Justice Park Jong-chul is as follows.

Article 83 (2) of the Act provides that "public facilities newly installed by an operator who is not an administrative agency after implementing an urban planning project shall gratuitously revert to the State or a local government which will manage such facilities." Meanwhile, Article 83 (5) of the Act provides that "the public facilities to be reverted to the management agency pursuant to the provisions of paragraph (2) of the same Article shall be deemed to belong to the management agency by notifying the completion of the project after the completion of the project ... is completed and the implementer has received a completion inspection, and then the completion of the project is notified to the management agency," and Article 83 (2) of the Act provides the form of "the change of real rights pursuant to the provisions of the Act," and Article 83 (5) of the Act provides the legal requirements for the change of real rights, and Article 83

In other words, with respect to any change in real rights under Article 83(2) and (5) of the Act, even if an operator who is not an administrative agency executes an urban planning project and completes the inspection of completion, it constitutes a legal requirement that causes the legal effect of the newly installed public facilities to gratuitously revert to the State or a local government (Article 83(7) of the Urban Planning Act refers to the same purport of Article 83(7) of the same Act). The implementer’s notice of completion of the project depends on the notification of the occurrence of the legal effect by such legal requirements. In addition, at the time of the completion of the project, it is certain that the project will occur in the future in terms of social norms, but the time is not determined. However, even if the occurrence of the fact is not possible as well as at the time of the occurrence of the project, it shall be deemed that the time comes in accordance with the legal principle that the completion of the project reaches (see Supreme Court Decision 88Meu10579, Jun. 27, 1989).

In the case of this case, as the court below acknowledged lawfully, Defendant 2 started an auction procedure on the land of this case without giving notice of completion to the management agency of the above road for ten years, even though Defendant 2 newly constructed a road which is a public facility by implementing an urban planning project on the land of this case and completed an inspection of completion of the said urban planning project. Thus, even if the plaintiff did not receive a notice of completion from Defendant 2, who is the implementer of the urban planning project, the plaintiff did not receive a notice of completion of the project, it shall be deemed that the notification of completion of the normal completion of the project of this case cannot be expected any longer when he received the application for auction of this case from the court. Thus, it shall be deemed that the notice of completion

Nevertheless, the court below's conclusion that Defendant 2 did not notify of the completion of the project and the plaintiff did not ultimately acquire the ownership of the land of this case does not constitute an unlawful act of misunderstanding the legal principles as to the attribution of ownership of public facilities installed by the implementation of an urban planning project, and it is obvious that this affected the judgment, and therefore, it is reasonable to point out this issue. Therefore, it is reasonable to reverse the judgment of the court below and remand the case to the court below for a new trial and determination.

5. Dissenting Opinion by Justice Lee In-hee, Justice Kim Jong-sik, Justice Shin Sung-sik, Justice Lee Jae-soo, and Justice Cho Cho Jae-young is as follows.

A. The Majority Opinion, in light of the language and text of Article 83(2) of the Act, if public facilities are installed by implementing an urban planning project, the ownership of the land and facilities constituting the relevant public facilities, at the same time as the completion inspection, directly and indirectly reverts to the State or a local government which manages the relevant facilities, and Article 83(5) of the Act does not provide for the standard point of time as to the reversion of rights, unlike the provisions on the attribution of management rights under individual laws regarding public facilities.

However, the majority opinion is contrary to the express provisions of the Act, and it is thought that the general theory on the establishment and management of public goods and the relevant provisions of the State Property Act and the Local Finance Act do not coincide with the majority opinion, and it does not need to be interpreted as the majority opinion. Therefore, the following dissenting opinions

In other words, in full view of the contents of Article 83(1) through (5) of the Act, other provisions of the same Act, and other provisions of the positive laws, Article 83(1) and (2) of the Act shall be interpreted as the subject and method of attribution (not for oil) of public facilities, the latter part of Article 83(4) and Article 83(5) of the Act shall be interpreted as the time when the ownership of public facilities installed by an implementer who is not an administrative agency belongs to the State or a local government, and it shall be interpreted as the time when the completion of the project is notified. The reasons are as follows.

B. (1) The latter part of Article 83(1), Article 83(4) of the Act provides that where an implementer who is an administrative agency installs new public facilities or installs public facilities replacing existing public facilities through an urban planning project, each of the above public facilities shall, without delay, notify the authority to manage the facilities of the kinds of the facilities and details of land when the completion inspection has been completed, and such facilities shall be deemed gratuitously reverted to the implementer, the State or a local government on the date of notification. Meanwhile, Article 83(2) and (5) of the Act provides that the property of the State or a local government ceased to use due to the implementation of a new public facility or an urban planning project by an implementer who is not an administrative agency after completion of the completion inspection and completion inspection shall be deemed to be gratuitously reverted to the management agency and is transferred to such implementer. In full view of each of the above provisions, Article 83(1) and (2) of the Act provides that the subject and method of attribution of the public facilities (not under consideration of the latter part of paragraphs (4) and (5) of the same Article 15) of the Urban Redevelopment Act shall be deemed to belong to another State or local government (i.

(2) 다수의견은 사업완료(준공검사)와 동시에 도시계획법상의 공공시설의 소유권이 국가 또는 지방자체단체에 귀속되는 것이고, 같은 조 제5항에 의하여 사업완료통지를 함으로써 관리청에 귀속되는 것은 그 관리권일 뿐 소유권은 아니라고 한다. 그러나, 법 제83조 표목(공공시설 및 토지 등의 귀속), 제1항, 제2항(공공시설은 … 귀속되며), 제3항, 제4항, 제5항(관리청에 귀속될 공공시설은 … 관리청에의 귀속)의 "귀속"은 모두 일관하여 공공시설의 소유권의 귀속을 의미하는 것으로 해석하여야 하지, 다수의견처럼 제2항의 귀속은 소유권의 귀속임에 반하여 제5항의 귀속은 관리권의 귀속이라고 해석하는 것은 '물건의 귀속'에 있어서의 '귀속'의 사전적 의미에도 맞지 않고 해석의 일관성도 유지될 수 없을 것이다. 다수의견도 제2항의 귀속은 소유권의 귀속이라고 해석하고 있고 제5항 첫머리에서 "제2항의 규정에 의하여 관리청에 귀속될 공공시설"이라고 규정한 이상, 제5항 말미의 "관리청에의 귀속"의 "귀속"도 소유권의 귀속으로 해석하여야 한다. 그리고 우리 실정법상 공물의 관리에 관한 규정은 '(행정청)은 ‥을 관리한다'(예컨대, 국유재산법 제6조), '‥이 관리청으로 된다'(예컨대, 도로법 제22조 제2항)는 형식으로 규정되어 있지, '관리권이 ‥에게 귀속한다'는 형식의 조항은 보이지 않는다. 또한 법 제83조 제5항의 "양도"는 소유권의 양도인 것에 의문의 여지가 없는데 같은 조항에서 양도는 소유권의 양도이고 귀속은 관리권의 귀속이라고 해석할 수 있는지 의문이다. 따라서 공공시설의 귀속시기를 규정한 제5항이 공공시설의 관리 귀속에 관한 것이라고 풀이하는 다수의견은 법 제83조(그 중에서도 특히 제5항)의 해석의 한도를 벗어난 것이라고 하지 않을 수 없다.

(3) The Majority Opinion’s view that the ownership of public facilities is first reverted to the State or a local government and the right to manage them belongs to the management authority only upon the implementer’s completion notice is inconsistent with the provisions of Article 83(3) and (4) of the Act, and is contrary to the general theory on the establishment and management of public facilities and provisions of the State Property Act and the Local Finance

(A) In other words, Article 83 (3) of the Act provides that "When the Minister of Construction and Transportation intends to approve an implementation plan for an urban planning project including the matters concerning the reversion of public facilities under paragraphs (1) and (2), he shall hear the opinion of the management agency in advance." Thus, prior to the implementation of an urban planning project, it is premised on the fact that the management agency to manage the public facilities has already been already established ( even under the proviso of Article 83 (3) of the current Urban Planning Act, it is premised on the fact that the management agency to manage the public facilities is the management agency at the time of completion at the latest), and Article 83 (4) of

(B) A public facility, such as a public facility, under the Urban Planning Act, is established upon meeting its requirements and entered the public facility under the management of the management agency. In addition, if a public facility is reverted to the State or a local government, the management agency concerned shall manage it as a matter of course pursuant to Articles 6 and 16 of the State Property Act and Article 73 of the Local Finance Act. Therefore, as long as a public facility is owned by the State or a local government, it is difficult to present the case where there is no management right. Therefore, if the ownership of a public facility under the Urban Planning Act is originally reverted to the State or a local government, and the executor is deemed to be beyond the management agency only by notifying the completion of the construction, it is inconsistent with the general theory on the establishment and management of the public facility, the State Property Act, and the Local Finance Act. In interpreting it to the majority opinion, it would be contrary to the general theory on the management of the public facility, and it would be difficult for the State or a local government to have the right to manage the public facility as well as the right to manage it.

(4) The Majority Opinion states that Article 83(5) of the Act should be understood as a general provision on the attribution of management rights, contrary to the provisions on the attribution of management rights under individual laws on public facilities. Since the provisions similar to Article 83(5) of the Act are various Acts, such as Article 56 of the Urban Redevelopment Act, Article 26 of the Industrial Sites and Development Act, Article 19 of the Distribution Complex Development Promotion Act, etc., so long as the general provisions on the attribution of management rights of public facilities exist under several Acts, the said provisions cannot be said to be a general provision on several individual laws. The said provisions of the Act cannot be said to be deemed to be in a mutually equal relationship.

(5) At the time of completion inspection, the majority opinion states that ownership of public facilities belongs to the state or local self-government organization that directly manages the facilities, but there are the following problems. In other words, in the private law, a person who installs facilities, such as buildings with his own effort and materials, generally acquires ownership of the facilities at the time of the construction, and the subsequent completion inspection is merely a procedure to confirm whether the construction has been lawfully implemented in accordance with the contents of the authorization or permission, and even according to the provisions of Article 83(2) of the Act, it is merely a procedure to confirm whether the construction has been completed in accordance with the contents of the authorization or permission, etc., and even according to the provisions of Article 83(2) of the Act, it does not have a legal basis to suggest a new standard of "at the

(6) The majority opinion does not regard it necessary to interpret it as above in order to prevent the occurrence of such trouble because the owner's exercise of his/her private right is not an obstacle to the use of public facilities. However, even if Article 83 (5) of the Act sets the time of completion of the construction of a new public facility including a road at the time of the completion of the construction of the public facility, the road management agency can exercise its public property management right in accordance with the relevant provisions of the Road Act, such as the Road Act, at a different level from the property rights such as ownership, and even if the State or a local government acquired the ownership of the above road after a legitimate public use restriction was made through an urban planning project, such public use restriction is not extinguished unless the public use of the new road is closed (see, e.g., Supreme Court Decisions 82Da22725, Dec. 8, 192). Therefore, even if Article 83 (2) of the Act sets the time of completion of the construction of the public facility including a road, it does not need to be interpreted clearly contrary to Article 83 (2).

(7) In particular, as in this case, in a case where an administrative agency having superior position with respect to authorization, permission, etc. of an urban planning project gratuitously acquires an individual’s property right, there is a need to strictly interpret and apply the provisions of relevant Acts and subordinate statutes in terms of guarantee of individual’s property right as stipulated by the Constitution. A road due to an urban planning project may be constructed with the consent of the owner as well as state and public land, and a road may be constructed with the consent of the owner on the private land. Before acquiring the ownership of a road site, the management agency may transfer the ownership of the road site or establish a mortgage on the road site without attaching a restriction of the private right as stipulated in Article 5 of the Road Act, etc.

C. Ultimately, the majority opinion considers that only Article 83(2) of the Act separately determines the time when ownership of public facilities belongs to the State or a local government, and that Article 83(3), (4), (5) of the Act, general theory on the establishment and management of public facilities is difficult to avoid criticism that the above various problems are standing, and therefore, it is difficult to agree with this, and the previous precedents that the majority opinion should revise and the judgment of the court below that share the same purport should be maintained.

D. As to the Concurring Opinion, the following points are pointed out.

Article 150 of the Civil Act shall apply or apply mutatis mutandis under Article 150 of the Civil Act, which restricts the effectiveness or extinction of a juristic act already established, and thus constitutes a whole of the juristic act. On the other hand, the notification of completion of a project under Article 83 (5) of the Act shall be separate from the construction of public facilities under Article 83 (2) of the Act, and the legal nature differs from that of a juristic act, as the content of the juristic act, condition or term is different. As such, the legal principle referred to in the separate opinion shall not apply mutatis mutandis to the attribution of ownership of public facilities under Article 83 of the Act, which is a case of a change in real rights under the provisions of Acts, in which case the ownership belongs to the State or a local government. In addition, the issue of whether the ownership belongs to the State or a local government at any time is directly related to the safety of transaction, and therefore, it is difficult to accept the separate opinion because it is unclear as stated in

The Chief Justice Park Jae-ho (Presiding Justice) of the Supreme Court of Justice Park Jong-ho (Presiding Justice)