[1] Whether the latter part of Article 83(2) of the Urban Planning Act can be interpreted as a discretionary regulation (affirmative), and whether such interpretation violates the guarantee of property rights and equality provisions in the Constitution (negative)

[2] The case holding that where a housing association obtained approval of a housing construction project plan to be a part of an apartment site to be newly built, and occupied and used the above closed-down site while implementing the apartment construction project, it is an administrative disposition against a person who is not obligated to impose indemnity on the housing association on the ground that he occupies the closed-down site without permission

[1] Article 83 (1) and (2) of the Urban Planning Act provide that the administrative agency's discretion is different as to whether the project implementer should transfer the existing public facilities such as old roads to the project implementer free of charge depending on whether the project implementer is not an administrative agency. Therefore, the provision that "it may be transferred free of charge" under the latter part of Article 83 (2) of the Urban Planning Act is interpreted as a discretionary provision in comparison with the former part and latter part of Article 83 (1) and (2) of the same Act, and it is interpreted as a discretionary provision, and otherwise, it is not reasonable to interpret the provision that "it shall be transferred free of charge in violation of the language and text," and the above interpretation is not inconsistent with the provisions

[2] Where a housing association has obtained approval of a housing construction project plan that is a part of an apartment site to be newly built, and the administrative agency imposed indemnity on the housing association for the reason of an occupancy without permission, it is meaningful to impose indemnity in addition to 20 percent of the loan charges to be paid on the illegal occupant of public property. Thus, the above provision applies only to cases where the commencement of occupancy of state property is conducted without legal title. Since the housing association obtained approval of a housing construction project plan under Article 33 (1) of the Housing Construction Promotion Act, it shall not apply to cases where it continues to occupy and use without a new contract after the expiration of the contract period. Since the housing association is deemed to have obtained the permission of the road construction project plan under Article 40 of the Road Act on the same day under Article 33 (4) 3 of the Local Finance Act, the housing association is deemed to have obtained the permission of the road construction project plan under Article 87 (1) of the Local Finance Act as well as the person who has obtained the permission of the housing association under Article 33 (1) of the Housing Construction Promotion Act.

[1] Article 83(2) and (6) of the Urban Planning Act, Articles 11 and 23 of the Constitution / [2] Article 87(1) of the Local Finance Act, Article 33(1), (4), and (7) of the Housing Construction Promotion Act, Article 40 of the Road Act

[2] Supreme Court Decision 92Nu367 delivered on September 2, 1992 (Gong1993Sang, 1472), Supreme Court Decision 93Nu13865 delivered on September 10, 1993 (Gong1993Ha, 2800), Supreme Court Decision 96Nu18502 delivered on September 26, 1997 (Gong1997Ha, 3305)

Daejeon Metropolitan City workplace Housing Association and 23 others

Chungcheongnam-do District Court Decision 5 others (Law Firm citizen General Law Office, Attorneys Go Young-gu et al., Counsel for the plaintiff-appellant)

Seo-gu, Daejeon Metropolitan City (Law Firm Seosan, Attorneys Kim Jong-tae, Counsel for defendant-appellant)

Daejeon High Court Decision 96Na615 delivered on August 12, 1997

All appeals are dismissed. The costs of appeal are assessed against each appellant.

The grounds of appeal are examined.

1. Regarding the plaintiffs' grounds of appeal

A. The lower court acknowledged the following facts based on the evidence.

(1) The plaintiffs are workplace associations organized by each agency for non-permanent public officials of various levels of agencies in Daejeon Special Metropolitan City, Daejeon Special Metropolitan City (Act No. 4789, Dec. 20, 1994; hereinafter referred to as Daejeon Special Metropolitan City) from January 1, 1995 to Daejeon Special Metropolitan City under the amended Local Autonomy Act; hereinafter referred to as the "Seoul Special Metropolitan City"). Pursuant to Article 33 of the Housing Construction Promotion Act of April 30, 191 and Article 32 of the Enforcement Decree of the same Act, the plaintiffs conducted the above projects from June 5, 1993 to June 5, 1993, with the approval of the housing construction plan for a public official of 1,980 households above the area of 65 square meters outside Daejeon Special Metropolitan City, Daejeon Special Metropolitan City ( Address 1 omitted).

(2) In approval of the above business plan, Daejeon Metropolitan City: (a) shall repurchase the said apartment site to Daejeon Metropolitan City by covering the said apartment site to the part adjacent to the project application site; (b) shall build and pack the road in an area necessary for approval of the traffic impact assessment and contribute it to Daejeon Metropolitan City; and (c) impose a condition on approval that the existing road owned by the Defendant will comply with the terms and conditions of consultation with the head of the relevant Gu; (b) accordingly, in the Gu, the number of eight lots, including the area of the previous road owned by the Defendant, which is 1,964.3 square meters (hereinafter “the instant waste site”), totaled of 11,964.3 square meters (hereinafter “the number 2 or 9 omitted) of the area of the land secured by the Defendant, which is 60.7 square meters (hereinafter “the instant waste site”), and the remaining appraisal value of the land should be excluding the amount of 11,371.86 square meters, within three months after the commencement of the appraisal value of the previous 19.6.15 months.

(3) On August 18, 192, the plaintiffs purchased the land of this case from the defendant Gu in 3,757,550,000 won (hereinafter the sales contract of this case) in accordance with the above modified approval terms and conditions, and paid in full on September 5, 1992.

(4) In accordance with the initial approval terms and conditions, the Plaintiffs: (a) opened a Gamacheon-ro Dog-ro and donated it to Daejeon Metropolitan City; and (b) opened a road with a total of KRW 1,125,280,842 as the construction price; and (c) donated it to Daejeon Metropolitan City by means of construction of a road with a total of KRW 5,096.4m2; (d) KRW 3,239,973,00 at the land purchase cost; (e) KRW 402,776,00 at the road construction cost; and (e) KRW 4,768,029,843 at the construction cost of the said Do road and the construction cost of the new Dog-ro.

(5) After obtaining the approval of the housing construction project plan as above, the plaintiffs discovered that it is possible to transfer the waste map site free of charge under the legal provisions, and delayed the application for the purchase of the waste map site in order to be transferred without compensation. On October 15, 191, the plaintiffs raised an objection to the terms and conditions of purchase for the waste map and demanded the plaintiffs to transfer the waste map site free of charge in an area equivalent to the costs of installation of public facilities donated to Daejeon Metropolitan City. However, the defendant's rejection of the request, which is satisfactory to the change of the deductible area from 600.7 square meters to 1,681.5 square meters from the deduction area as described in the above paragraph (2). The defendant accepted the principle of purchase for the whole conference on December 12, 1991 to accept the principle of the defendant's Gu's free purchase, but it was possible for the plaintiffs to receive the deduction based on the appraised value of the land rather than simply deducted, and the defendant newly established the sale contract and concluded the contract with the defendant.

B. Article 83(1) of the Urban Planning Act provides that where a project operator, who is an administrative agency, installs a new public facility or a public facility replacing the existing public facility, the existing public facility shall gratuitously belong to the project operator and the new public facility shall gratuitously belong to the administrative agency to manage the facility. On the other hand, Article 83(2) of the same Act provides that the new public facility shall gratuitously belong to the administrative agency to manage the facility, and the public facility of the administrative agency whose function is replaced and whose function is ceased due to the implementation of the project shall be transferred gratuitously to the project operator within the extent equivalent to the installation cost of the new public facility, so that the project operator may gratuitously transfer the existing public facility (e.g., old road) to the project operator according to whether the project operator is not an administrative agency.

Therefore, there is no ground to interpret the provision that "it may be transferred free of charge" under the latter part of paragraph (2) of the same Article shall be interpreted as a discretionary provision in comparison with the latter part of paragraphs (1) and (2) of the same Article, and in light of the latter part of the same paragraph, it shall be interpreted as a discretionary provision, and otherwise, it shall be transferred free of charge in violation of the language and text, and such interpretation shall not be deemed contrary to the provisions of guarantee of property

In light of the records, the court below determined that the contract of this case cannot be deemed an unfair legal act in light of the purport of the above provisions of the Urban Planning Act and the circumstances leading up to the conclusion of the contract of this case, and rejected the plaintiffs' assertion of cancellation of mistake under the premise that the above provisions of the Urban Planning Act are binding provisions is just, and there is no misapprehension of the legal principles as to the above provisions

The plaintiffs' ground of appeal cannot be accepted.

2. As to the Defendant’s ground of appeal

A. The lower court acknowledged the following facts based on the evidence.

(1) Although the original site was a land category, the Plaintiffs approved the housing construction project plan that will newly construct the above site on April 30, 1991, and applied for the disuse of the above closed site to the Defendant with the intent to facilitate the use of the above closed site as the apartment site on May 8, 191. The Defendant discontinued the use of the above closed site on May 9, 191, and on June 5, 191, the land category was changed to the site.

(2) From June 5, 191, the plaintiffs occupied and used the site of this case while implementing the apartment construction project. The defendant's Gu demanded the plaintiffs to enter into a loan contract with respect to the site of this case, which was abolished as the property owned by the defendant, several times since September 9, 191, along with the notification of the request for purchase of the site of this case. Since September 9, 191, the plaintiffs refused to comply with the request, and the plaintiffs paid indemnity to the plaintiffs by October 17, 1992 on the ground that the plaintiffs occupied the site of this case without permission from June 5, 191 to August 18, 192, the plaintiffs paid indemnity by the above plaintiffs under Article 87 (1) of the Local Finance Act and Article 105 of the Enforcement Decree of the same Act.

B. Article 87(1) of the Local Finance Act provides that an indemnity shall be collected by adding 20 percent to the amount equivalent to the rent to be paid in a case where the loan, etc. is granted to an illegal occupant of public property. Thus, the above provision applies only to cases where the commencement of possession of state property was conducted without legal title. The above provision does not apply to cases where a person who occupies or uses state property by obtaining a loan, etc. from the original state property and continues to occupy or use it without entering into a new contract after the expiration of the contract term (see, e.g., Supreme Court Decisions 92Nu367, Sept. 22, 1992; 93Nu13865, Sept. 10, 1993). Thus, as seen above, the plaintiffs' construction project plan of this case was approved on April 30, 1991 pursuant to Article 33(1) of the Housing Construction Promotion Act, and thus, the plaintiffs can be deemed to have obtained permission to occupy and use the road under Article 40(1) of the Local Finance Act.

In addition, as long as the plaintiffs obtained approval for a housing construction project plan under Article 33 (1) of the Housing Construction Promotion Act, the plaintiffs are deemed to have obtained authorization for an implementation plan under Article 25 of the Urban Planning Act pursuant to Article 25 (4) 1 of the same Act, and the persons who obtained authorization for the above implementation plan pursuant to Article 33 (7) of the same Act are exempted from usage fees, the plaintiffs are not obligated to pay compensation and rent from the plaintiffs. In this regard, the disposition of imposition of indemnity in this case is an administrative disposition against a person

Therefore, the judgment of the court below that ordered the disposition of this case to be imposed on the plaintiffs on the ground that the disposition of this case was null and void as a matter of course without further review as to the existence of any other ground for invalidation of the disposition of this case. There is no error in the misapprehension of legal principles as to the invalidation of an administrative disposition as a matter of course, misunderstanding of legal principles as to Article 87 (1) of the Local Finance Act,

The defendant's argument in the grounds of appeal cannot be accepted.

Therefore, all appeals by the plaintiffs and the defendant are dismissed, and the costs of appeal are assessed against each appellant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Seo Sung-sung (Presiding Justice)