Gangnam-gu and 346 others (Attorneys Kim Jong-soo et al., Counsel for the plaintiff-appellant)

Seoul Special Metropolitan City Mayor (Seoul New Law Firm, Attorneys Kim Ho-ray et al., Counsel for the plaintiff-appellant)

September 29, 2005

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

On November 26, 2003, the Defendant confirmed that a disposition that was designated as E.S. implementer of the Gangnam Urban Development Project is null and void.

1. Details of the disposition;

The following facts are not in dispute between the parties, or can be acknowledged by considering the whole purport of the pleadings in each entry in Gap evidence 1-1-2 to Gap evidence 2-3.

(i) The Plaintiffs are owners of land totaling 912,00 square meters in total, 360 square meters in Gangdong-dong, Gangdong-gu, Seoul (hereinafter “instant land”) that was designated as a natural green area as a development restriction zone.

B. On October 30, 2003, the Defendant issued a decision to cancel the development restriction zone of the instant land from the development restriction zone and publicly notified the amendment of the urban management plan. On November 10, 2003, the Seoul Special Metropolitan City Notification No. 2003-341, the Defendant designated the Gangwon Urban Development Zone and approved and publicly notified the development plan for the instant land (hereinafter “instant urban development project”).

Article 11 of the Urban Development Act of November 26, 2003, the defendant designated the non-party Seoul Special Metropolitan City Urban Development Corporation (the title of the above Corporation was changed to SP on March 17, 2004; hereinafter referred to as the "SP") as the implementer of an urban development project for the land of this case (hereinafter referred to as the "project implementer").

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The Plaintiffs asserts that the instant disposition, which was made by unlawful means as follows, is null and void.

(1) Article 11 of the Urban Development Act and Article 15(2) of the Enforcement Decree of the Urban Development Act (amended by Presidential Decree No. 18146, Nov. 29, 2003; hereinafter “Enforcement Decree”) stipulate that the designation of an executor under the Urban Development Act shall be made by receiving a preferential application from a person who wishes to be designated as an executor as an executor, and even though this is a mandatory provision, the Defendant did not have received an application for designation from any person including Nonparty Corporation in rendering the instant disposition.

In accordance with Article 11(2) of the Luxembourg Urban Development Act and Article 16(2) of the Enforcement Decree of the Act on November 26, 2003, the designation of the operator should be made at least six months after the date of the formulation and announcement of the urban development plan. However, in rendering the disposition of this case, the defendant did not grant a six-month period from November 10, 2003, which is the date of the formulation and announcement of the development plan, and did not designate the non-party construction as the implementer on November 26, 2003.

Article 7(2) of the Urban Development Act provides that the Defendant shall inspect and publicly announce the designation of an urban development zone and the public inspection and the methods of hearing the opinions of the residents, but there is an error of designation of the implementer and the project implementation method in advance and public inspection and public announcement. Article 9-2(1)2 of the Enforcement Decree of the Urban Development Act providing such matters exceeds the scope of delegation under Article 7(2) of the Urban Development Act.

The defendant's urban planning deliberation committee has deliberated on all the matters stipulated in Article 12 (1) of the Enforcement Decree of the Act on October 22, 2003. At the time of deliberation, it is illegal to deliberate on the designation of the implementer and the method of implementation of the project without the designation of the implementer under the designation authority. Such deliberation is based on the Enforcement Decree of the Act that violates the mother law and thus null and void.

(v) According to the proviso to Article 4 of the Urban Development Act and Articles 5-2 and 5 of the Enforcement Decree of the same Act, the instant land is a natural green area of at least 10,000 square meters, and is an area other than an urban area of at least 30 square meters, and the Defendant, first of all, should establish an urban development plan in consideration of the regulatory details of other relevant laws and regulations applicable to the said designation after designating the Gangwon Urban Development Zone, but at the same time, has an error in the designation

⑹ 소외 공사의 토지보상가는 주변 토지의 시세와 원고 등 토지 소유자들이 시행자가 되었을 경우의 토지보상가와 비교할 경우 주변 토지 시세의 26％, 토지소유자들의 보상예정가의 23％에 불과하고, 그 결과 소외 공사가 막대한 개발이익을 차지하는 등의 사정을 고려할 때 소외 공사를 시행자로 지정한 이 사건 처분은 토지의 공공개발과 공익성이라는 명분하에 국민의 사유재산권을 침해하는 위법한 행위이다.

B. Relevant statutes

Attached Form 2 is as shown in the relevant statutes.

(c) Fact of recognition;

The following facts may be acknowledged by taking into account each of the above evidence, evidence Nos. 3 through 6, and evidence Nos. 1 through 3, as a whole, the whole purport of the pleadings, and there is no reflective evidence.

(1) In order to supply national rental housing that can be residing at a low rental rate for low-income people who have not owned or supplied a house due to the increase in real estate prices, the Defendant established a construction plan for national rental housing from October 2002 to build a “construction plan for 100,000 national rental housing” and selected the instant land that was designated as a development restriction zone while the site corresponding thereto was colored.

㈏ 그리하여 피고는 2003. 7. 9. 이 사건 토지를 도시개발구역으로 지정하기 위하여 도시개발법 제7조 , 법시행령 제9조의2 에 근거하여 아래와 같은 내용으로 공람ㆍ공고하였다.

(a) Period: 14 days from the date of publication

(b) Place for public inspection: Seoul Special Metropolitan City Management Department.

C. Summary of the Urban Development Project Plan to be drafted

(1) Project name: Gangnam Urban Development Project.

(2) Business location: A set of 360 Hail-dong, Gangdong-gu, Seoul Metropolitan Government.

(3) Business area: 912,000 square meters.

(4) Business purposes: The promotion of planned and systematic urban development, the creation of a pleasant urban environment and public welfare, and the supply of land for diverse functions, such as national rental housing sites.

㈃ 도시개발사업의 시행자 및 시행방식에 관한 사항

1. Implementers: Non-Party Corporation

(2) Method of implementing a project: Expropriation method.

(3) The period of project implementation: 203 and 2007

㈐ 그러자 이 사건 토지의 소유자들로 구성되어 있던 소위 강일동토지대책위원회는 2003년 7월경 피고에게 ‘도시개발법에 의한 조합설립 및 사업에 관한 질의’라는 제목으로 이 사건 토지에 관하여 토지소유자 및 건축물 소유자의 ⅔ 이상의 동의를 받아 조합구성을 하면 시행자가 될 수 있는지 등 이 사건 도시개발사업과 관련된 내용을 질의하였다.

㈑ 이에 대하여 피고는 2003. 7. 15. 강일동토지대책위원회에게 ‘토지소유자는 대상구역 토지면적의 ⅔ 이상에 해당하는 토지소유자의 동의를 얻어 관할 구청장에게 도시개발구역지정을 제안할 수 있으나, 제안내용의 타당성 여부, 관련부서 협의 및 도시계획위원회 심의 등을 거쳐 도시개발구역으로 지정하게 됩니다. 따라서 토지소유자 ⅔ 이상의 동의만으로 사업시행이 가능한 것은 아닙니다. 주택이 밀집되고 기 대지화된 지역만을 개발대상으로 하는 경우에는 단지 또는 시가지조성의 목적보다는 건축행위가 사업목적인 만큼 그 행위목적에 맞는 개별법에 따라 사업이 시행되어야 할 것입니다. 그러나 동 지역은 계획적이고 체계적인 도시개발을 도모하고 쾌적한 도시환경의 조성과 공공복리의 증진을 기여하기 위해서는 전 구역을 대상으로 한 토지이용계획은 물론 공영개발에 의한 단지조성이 필요하다는 판단 하에 소외 공사를 시행자로 지정하여 사업을 추진하고자 도시개발구역지정을 위한 공람·공고를 하게 되었습니다’라는 내용으로 ‘민원서류 회신’을 하였다.

㈒ 그 후 피고는 2003. 10. 22. 서울특별시 도시계획위원회를 개최하여 시행자를 소외 공사로 하고 사업시행방식을 수용 및 사용방식(공영개발방식)에 의하는 이 사건 도시개발사업의 계획(이하, ‘개발계획’이라 한다)을 포함하는 강일도시개발구역지정에 관하여 심의를 거쳤고, 2003. 10. 30. 이 사건 토지에 관하여 개발제한구역해제를 하였다.

㈓ 그런 후 피고는 2003. 11. 10. 이 사건 토지에 관하여 도시개발구역지정 및 개발계획승인을 하였고, 같은 달 26. 각자의 이해관계가 있는 토지소유자들인 원고들을 시행자로 하는 것보다는 지방공기업인 소외 공사를 시행자로 지정하는 것이 이 사건 도시개발사업의 목적이나 사업수행에 있어서의 공익성과 효율성 도모에 적절하다는 판단 하에 시행자로 소외 공사를 지정하는 이 사건 처분을 하였다.

Shed Judgment

㈎ 시행자 지정신청을 받은 이후에만 시행자 지정이 가능하다는 주장에 대한 판단

(1) The main text of Article 11(1) of the Urban Development Act provides that a local government-invested public corporation established under the Local Public Enterprises Act and a land owner in an urban development zone or a cooperative established by it for urban development, among the persons falling under any subparagraph of paragraph (1) of the same Article, the designating authority shall designate such person. Article 15(1) of the Enforcement Decree of the same Act provides that a person who intends to be designated as an implementer shall submit an application for designation of a project operator, along with a project plan and a financing plan, to the designating authority via the head of a Si/Gun/Gu, and the proviso provides that the same shall not apply where the designating authority directly implements an urban development project. Article 11(2) provides that a

Although it is unclear whether a non-party corporation designated as an implementer submitted an application for designation of a project implementer to the Defendant in relation to the instant disposition, Article 15 of the Enforcement Decree of the Act provides for the procedure to secure data necessary to examine the intent and capacity of implementation of an urban development project of a person who intends to be designated as an implementer in designating an implementer, and thus, it is unnecessary for the designation authority to conduct the above procedure exceptionally in case of direct implementation of an urban development project, and in this case where the non-party corporation designated as a local public enterprise established by the defendant's full investment in order to implement a development plan of the instant urban development project of this case, the defendant has already determined a development plan and the business ability of the non-party corporation was already known by the defendant, and it is not necessarily necessary because the intention and performance ability of the non-party corporation were merely merely in a formal procedure, as prescribed by the proviso of Article 15 (1) of the Enforcement Decree of the Act, even if the non-party corporation did not submit the application for designation to the defendant under the status of the defendant pursuant to Article 15 (1) of the Enforcement Decree of the Act.

㈏ 시행자 지정이 개발계획의 수립 및 고시일로부터 6개월이 경과한 이후에 이루어져야 한다는 주장에 대한 판단

(a) The proviso of Article 11(1) of the Urban Development Act provides that a landowner or an association shall be designated as an implementer in the event that the entire urban development zone is implemented by a replotting, and Article 11(2) of the same Act provides that a landowner or an association may be designated as an implementer in certain cases, such as not applying for the designation of an implementer within the period prescribed by Presidential Decree. Article 16(2) of the Enforcement Decree of the same Act provides that the period prescribed by Presidential Decree refers to six months from the date of the establishment and announcement of a development plan. However, each of the above provisions applies to a case where the entire urban development zone is implemented by a replotting method, which is a public development method, and it cannot be applied to the case of the urban development project of this case where the expropriation and use method is implemented by a public development method. Thus, it cannot be said that there was a violation of the Plaintiff’s assertion on the instant disposition by the Defendant who designated Nonparty Corporation as an implementer from November 10 to June 26,

(b) Furthermore, in the case of a project implementation by replotting, a land owner or a cooperative, as a matter of principle, grants a six-month period of application for designation as an implementer, in principle, due to the institutional characteristics of the project implementation, such as making a reduction without compensation for losses. However, in the case of an urban development project by a public development method that requires the designation of an implementer, even if the designation authority did not grant a six-month period of application, it cannot be deemed as a violation of the law’s deficiencies or equity in consideration of the difference in the method of project implementation. The Plaintiff’

㈐ 도시개발구역지정을 위한 공람·공고시 시행자와 사업시행방식을 미리 지정하여 위법하다는 주장에 대한 판단

(a) Article 3(1) of the Urban Development Act provides that an urban development zone may be designated when a Mayor/Do Governor deems it necessary for a planned urban development, and Article 4(1) provides that when a designating authority designating an urban development zone intends to designate an urban development zone, a development plan for the urban development zone shall be established. Article 5(1) provides that a development plan shall include matters concerning an implementer of an urban development project and matters such as the method of implementation of an urban development project, and Article 11(1) provides that a designating authority shall designate an implementer. According to the above provisions, a development plan shall be formulated along with the designation of an urban development zone and a development plan shall be designated as an implementer. The matters concerning an implementer and method of implementation of an urban development project, which constitute the contents of a development plan, constitute an important contents in the designation of an urban

(b) In addition, Article 9-2 (1) 2 of the Enforcement Decree of the Urban Development Act provides that "matters concerning the implementer of an urban development project and method of implementation" shall be publicly announced and made available for public inspection to hear opinions of residents, etc. shall exceed the delegation scope under Article 7 (2) of the Urban Development Act. Thus, Article 7 (2) of the Urban Development Act provides that "necessary matters concerning the subject matter of public inspection or public hearing and the method of hearing opinions of residents, etc." The purport of the provision is to delegate specific matters for the procedures of hearing opinions of residents to the Presidential Decree pursuant to Article 7 (1) and (2) of the Urban Development Act, so it cannot be deemed that the delegated matters are limited to "subject matter of public inspection or public hearing and methods of hearing opinions of residents, etc." In order to secure the effectiveness of hearing opinions of residents, etc. as a prior procedure for designating an urban development zone, the contents of the development plan to be implemented in the urban development zone can not be seen as unlawful under Article 7 (1) of the Enforcement Decree of the Urban Development Act.

In the instant case, the Defendant’s inspection and announcement for hearing opinions of residents in order to designate the instant land as an urban development zone on July 9, 2003. However, this is based on Article 7 of the Urban Development Act and Article 9-2(1)2 of the Enforcement Decree of the Urban Development Act, which is legitimate, and it is merely done under the judgment that taking into account the purpose of the instant urban development project into account the purpose of the instant urban development project, and even if the instant disposition, which was designated as the implementer of the non-party construction, was separately made, it cannot be deemed to have been designated as the implementer due to the above public inspection and announcement. Accordingly, the Defendant did not err in the public inspection and announcement as alleged by the Plaintiffs. Ultimately, the Plaintiffs’ aforementioned assertion related to public inspection and announcement is without merit.

㈑ 도시계획위원회의 심의시 시행자 지정과 사업시행방법 등이 포함된 것은 위법하다는 주장에 대한 판단

Article 8 of the Urban Development Act provides that when a designating authority designates an urban development zone or formulates a development plan after the designation of an urban development zone, the matters concerning an implementer of an urban development project and the method of implementation of an urban development project are included in the contents of a development plan under Article 5 of the Urban Development Act. As seen above, in deliberating on the designation of an urban development zone of the case of this case by holding the Seoul Urban Planning Committee on October 22, 2003, even if the Defendant, as part of the development plan of the case of this case, deemed the implementer and the method of implementation, etc. as the object of deliberation, it cannot be deemed unlawful as it is based on Article 8 of

㈒ 도시개발구역의 지정 이후 개발계획을 수립하지 아니하여 위법하다는 주장에 대한 판단

Article 4 of the Urban Development Act, in principle, stipulates that when a designating authority intends to designate an urban development zone, a development plan for the relevant urban development zone shall be formulated: Provided, That when an urban development zone is designated in an area prescribed by the Presidential Decree, a development plan may be formulated after the designation of an urban development zone, and Article 5-2 of the Enforcement Decree of the Urban Development Act provides that "area prescribed by the Presidential Decree" refers to a green area and an area other than an urban area. According to the above provision, even if an urban development zone is designated in an area other than a green area and an urban area, a development plan may be formulated after the designation of an urban development zone, and it does not necessarily mean that a development plan should be formulated by step after the designation of an urban development zone. Therefore, it is not illegal for a defendant, who is the designating authority, to formulate a development plan at the same time

㈓ 소외 공사를 시행자로 지정한 것이 국민의 재산권을 침해하였다는 주장에 대한 판단

The plaintiffs asserted that the Corporation's excessive low compensation for the owners of the land of this case is a serious contradiction that infringes upon citizens' private property rights. However, the designation of an implementer in connection with an urban development project shall be determined in consideration of the purpose of the development project, the social and economic conditions at the time of the project, and the characteristics appearing in the implementation of the project by each implementer. The above grounds asserted by the plaintiffs are merely a legal issue in the land expropriation procedure between the non-party corporation and the owners of the land of this case, which are the implementers, and the disposition of this case by the defendant who designated the non-party corporation as the implementer for this reason shall not be automatically null and void. The above grounds by

3. Conclusion

Therefore, the plaintiffs' claims of this case seeking nullification on the premise that there is a serious and clear defect in the disposition of this case are all reasonable, and they are dismissed. It is so decided as per Disposition.

Judges Cho Jae-young (Presiding Judge)