Large 2 Housing Reconstruction Project Association (Attorney Lee Young-hoon, Counsel for the plaintiff-appellant)

Defendant (Attorney Lee Young-soo, Counsel for the defendant-appellant)

July 2, 2010

Seoul Southern District Court Decision 2009Gahap1106 Decided November 27, 2009

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall receive KRW 502,800,000 from the plaintiff and, at the same time, shall take the procedure for the registration of ownership transfer on September 23, 2008 with respect to the real estate stated in the separate sheet to the plaintiff, and shall specify the above real estate.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. A cited part;

The reasons why a party member should explain on this case are as follows, except for the addition of the following judgments as to the matters alleged by the defendant, and therefore, they are cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Additional determination

(a) Whether real estate can be acquired pursuant to the provisions of cash liquidation;

(1) Summary of the defendant's assertion

According to Article 47 of the Do administration Act, a project implementer shall liquidate land, buildings, or other rights in cash in cases where the owner of land, etc. fails to apply for a parcelling-out. However, in cases where an agreement on the liquidation amount has not been reached between a project implementer and the owner of land, etc., there is no provision about how the project implementer should acquire the land, etc. by any means. However, Articles 38 and 40(1) provide that a project implementer may expropriate or use land, etc. in certain cases, and Article 39 provides for a claim for sale. According to Supreme Court Decision 2006Du2954 Decided March 13, 2008, Supreme Court Decision 206Du2954 Decided March 13, 2008, where an agreement is not reached in the case of an urban environment improvement project, the project implementer shall be forced to expropriate land, buildings, or other rights, but only the owner of land, etc. may claim for a cash settlement, and a compulsory acquisition of real estate in this case shall not be made by the plaintiff under the Act.

(2) Determination:

However, this case concerns housing reconstruction project, unlike the case of the Supreme Court Decision 2006Du2954 Decided March 13, 2008 (the case where a parcelling-out disposition is taken under the former Urban Redevelopment Act). In particular, according to Articles 38 and 8(4)1 of the Do Government Act, the plaintiff, who is a project implementer, cannot expropriate land, etc., so it is not appropriate to invoke the above case. Rather, according to Supreme Court Decision 2008Da37780 Decided October 9, 208, the above Supreme Court Decision 2008Da37780 Decided October 9, 2008, where the project implementer fails to apply for parcelling-out or withdraws the application for parcelling-out or bears the obligation to pay liquidation money to the owner of land, etc., the owner of land, etc. under the equitable principle bears the obligation to transfer the ownership to the project implementer. Thus, even if the above Article 47(4)1 of the Do Government Act applies mutatis mutandis the above provision to the defendant's claim that this case is reasonable.

B. Whether the market price appraisal of the instant case is appropriate

(1) Summary of the defendant's assertion

As a result of the market price appraisal of the real estate of this case, the price of the real estate of this case shall be determined by excluding the building price among the real estate of this case, and accordingly, by adding the building price at the time of calculating the uniform price.

(2) Determination:

Comparing the market value of the above real estate at the time of the first instance court's appraisal of the real estate, the appraiser calculated the 40th appraisal price of the above real estate by comparing the above appraisal method with the market value of the building on September 23, 2008, which is the date following the expiration date of the application period for parcelling-out and the price of the building which is estimated by comparing the officially announced value of the building on September 23, 2008, and the price of the building which is estimated by deducting from the original price of the building on the 4th unit. Since the real estate in this case is located within the zone where reconstruction is planned, the appraisal price of the real estate in this case is calculated by analyzing the precedents on the 496,429,820 won (the average market value of the building on the 40th appraisal) which is not included in the market value of the building on the 40th appraisal method as the market value of the building on the 196th appraisal method, this is also a reasonable appraisal price of the building on the 190th appraisal price.

3. Conclusion

Therefore, the plaintiff's claim of this case against the defendant should be accepted for the reasons, and the judgment of the court of first instance is justified with this conclusion, and the defendant's appeal is dismissed. It is so decided as per Disposition.

[Attachment]

Judges Yellow Hahn (Presiding Judge)