Plaintiff 1 and six others (Attorneys Jeon Sung-sung et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 201Na1448 delivered on May 2, 2012

March 4, 2010

Suwon District Court Decision 2008Gahap16861 Decided July 9, 2009

1. Revocation of a judgment of the first instance;

2. As to each land listed in the column for land in attached Table 1 to the Plaintiffs:

A. The Defendant U.S. parent bank Co., Ltd. implements the procedure for the cancellation registration of each transfer of ownership, which was completed on June 24, 2008 by the receipt No. 90286, each of the Suwon District Court Seosung Branch Co., Ltd.

B. Defendant Gyeonggi-do shall implement each procedure for the registration of ownership transfer for each reason of redemption.

3. The total costs of the lawsuit shall be borne by the Defendants.

The same shall apply to the order.

1. Basic facts

A. On November 24, 2003, pursuant to Article 30 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”), a public announcement was made of the determination of an urban management plan (urban planning facilities) including the contents of establishing the Yangsan Elementary School with respect to the land of KRW 114 days in Yangsan-dong (the above public announcement was indicated in Gyeonggi-do newsletter as “schools”, “elementary School”, and “Ysan Elementary School” in the remarks column in the remarks column in the facilities), and the Simsan-si 114 days in Yangsan-si 114 under Article 88 of the National Land Planning and Utilization Act, the public announcement was made on November 1, 2004 on the name of the Gyeonggi-do Seosan-si Office of Education (the Gyeonggi-do Office of Education), the type of the project was the name of the Simsan-si 2, the scheduled date of the project, the scheduled date of the project and the scheduled date of completion of the project, and the public announcement was made on March 28, 2000-13.

B. In addition, the head of the District Office of Education, which is the project implementer, prepared an implementation plan for the school (native elementary school) facility project with the content that the type of school is an elementary school (public) and the name of a school (tentative name) pursuant to Article 4(4) of the School Facilities Projects Promotion Act on January 2, 2006, and publicly announced it (Public Notice of the District Office of Education No. 2005-85).

C. Meanwhile, each land listed in the separate sheet Nos. 1 and 2 (hereinafter “instant land”) was originally owned by the Plaintiffs and landowners listed in the column for land owners listed in the annexed sheet Nos. 1 and 2 (hereinafter “Plaintiffs, etc.”). The head of the District Education Office, which is the project implementer, completed the registration of ownership transfer in the pertinent public office of education by consultation with the Plaintiff, etc. pursuant to Articles 15 and 16 of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (hereinafter “Public Works Act”) in order to establish the “Yansan Elementary School.” The head of the District Education Office, which is the project implementer, has completed the registration of ownership transfer in the pertinent public office of Gyeonggi-do (hereinafter “the pertinent office of education”) by consultation with the Plaintiff, etc. from March 4, 2004 to March 9, 206, on each corresponding date indicated in the separate sheet No. 1 and 2, each of which is indicated in the annexed sheet No. 2.

D. However, on January 8, 2007, the Governor of the Gyeonggi-do determined an urban management plan (a change of specific use areas, district unit planning No. 1) that designates KRW 140,00,00,00 as Class 1 district unit planning zone pursuant to Article 30 of the National Land Planning Act, and publicly notified the determination of the above urban management plan (No. 2006-502 of the Gyeonggi-do Notice). Furthermore, separate from the instant project, the aforementioned urban management plan’s decision included the establishment of elementary schools at 152,00,000

E. On May 18, 2007, pursuant to Article 16 of the Housing Act, on May 18, 2007, the Osan City approved the housing construction project plan that newly constructs an apartment building 29 units on the plot of land outside 140 and 43 Osan-si, Yangsan-si (hereinafter “Defendant Company”) on May 22, 2007. The details of the approval for the said housing construction project plan did not include the contents of establishing an elementary school within the said district unit planning zone.

F. Accordingly, on January 18, 2008, the prospective occupants of the apartment in the e-Tae-Saeae-Sae-Saeae-Sae-Saeae-si, which was newly constructed by the housing construction project implemented by the Defendant Company, filed a collective civil petition demanding the establishment of an elementary school in accordance with the original urban management plan at Osan-si, and Osan-si entered into an exchange agreement with the U.S. Office of Education on May 26,

Article 5 (Agreement on Exchange of Sites)

① Property owned by the Defendant Company (hereinafter “Defendant Company’s property”) is to exchange “3-2, 317 square meters, 41-1 factory site, 3,60 square meters, 52-1, 567 square meters prior to the same 52-1, prior to the same 146-2, and 6,025 square meters prior to the same 146-2, and 158-5, and forest land owned by the Defendant Gyeonggi-do (hereinafter “ apartment complex”) and “instant land” without settling the area and supply price thereof.

③ Osan-si shall maintain the determination of urban planning facilities (school facilities) with respect to “the instant land,” and when filing a civil petition, such as the right to repurchase by the original owner of “the instant land” following the site exchange, it shall be dealt with under the responsibility of the defendant company and the Osan-si.

Article 7 (Construction Work for Site)

2. The defendant company shall complete the completion of the construction of the completion of the school site in relation to “land in apartment complex” by the end of July 2008, and shall complete the construction of the legal infrastructure at the request of the Sungsung Office of Education by no later than six months before the opening of the school and shall not hinder the subsequent establishment of the school.

Article 9 (Other Matters)

Osan-si shall cooperate with the Busan-si Office of Education for free donation of the relevant middle school site at the request of the Busan-si Office of Education when it establishes a district unit plan in addition to the Yangsan-dong, when it determines the site for a middle school site in a district unit planning zone, and when it applies for the approval of a housing construction project plan, when it requests Osan-si to have the project implementer contribute the school site without compensation.

G. Accordingly, on June 19, 2008, Defendant Gyeonggi-do concluded a contract with Defendant Company to exchange the instant land owned by Defendant Gyeonggi-do and the land in the apartment complex owned by Defendant Company, and completed the registration of ownership transfer on June 24, 2008 in the name of Defendant Company.

H. The superintendent of the Gyeonggi-do Office of Education, on September 25, 2008, designated a project that newly establishes the Yangsan Elementary School as a project subject to private investment, and formulated a plan for private investment and announced it (No. 2008-58 notice of the Gyeonggi-do Office of Education) on September 25, 2008, under Articles 8-2(2) and 10(3) of the Act on Public-Private Partnerships in Infrastructure (referring to the land in an apartment complex).

I. On August 14, 2008, the plaintiffs submitted to the court of first instance a complaint containing a declaration of intent to redeem the land of this case, and the above warden served to the defendant on August 25, 2008. Pursuant to Article 91(1) of the Public Works Act, the plaintiffs 1, 2, 4, 5, and 6 made the defendant Gyeonggi-do as the depositee, and the plaintiff 7 deposited the amount corresponding to the corresponding amount of compensation stated in the compensation column in the attached Table 1 as of November 6, 2009, and the plaintiff 3 deposited the compensation money as the deposit money on November 9, 2009, and November 10, 2009.

[Ground of recognition] Facts without dispute, Gap's statements in Gap's 1, 2, 5 through 9, 12, 14, 16, 19, 22, 24, 25 (including various numbers), Eul's evidence 1-2, Eul's 2, 4, and 5, and the purport of the whole pleadings

2. Determination

(a) the relevant regulations;

Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Amended by Act No. 8665, Oct. 17, 2007)

Article 91 (Redemptive Right)

(1) Where all or part of acquired land becomes unnecessary due to a discontinuation or alteration of the relevant project and other causes within 10 years from the date the land has been acquired under consultation or the date commencing the expropriation of land (hereafter referred to as "acquisition date" in this Article), the landowner at the time of the acquisition date or his/her general successor (hereinafter referred to as "re-purchase right holder") may repurchase such land by paying to the project operator the amount equivalent to the indemnity paid for such land, within one year from the date all or part of the relevant land became unnecessary, or within 10

(2) Paragraph (1) shall apply mutatis mutandis where all the acquired land is not used for the relevant business within five years from the date of acquisition, but the repurchase right shall be exercised within six years from the date of acquisition.

(3) Remaining land purchased or expropriated under Article 74 (1) shall not be repurchased unless a group of lands adjacent to the remaining land has become unnecessary.

(4) Where the price of land changes remarkably compared with at the time of acquisition, the project implementer and redemption creditors shall consult on the amount of redemption, but when an agreement is not reached, they may request the court to increase or decrease such amount.

(5) Repurchase rights under paragraphs (1) through (3) may be contested against any third party when the registration of an acquisition under consultation or expropriation of the land required for the public works has been made under the conditions as prescribed by the Registration of Real Estate Act.

(6) Where any public works are changed to any other public works provided for in subparagraphs 1 through 4 of Article 4 after the State, a local government, or a government-invested institution acquires land necessary for a public works after obtaining project approval through consultation or expropriates such land, the period for exercising the repurchase right provided for in paragraphs (1) and (2) shall be counted from the date the change of such public works is publicly notified in the Official Gazette. In such cases, the State, a local government, or a government-invested

B. Determination as to whether grounds for redemption (displacement or change of public works) arise

(1) As the cause of the instant claim, the Plaintiffs asserted that the establishment project of Yangsan Elementary School, which was scheduled at the time the Defendant Gyeonggi-do acquired the instant land through consultation, is no longer necessary because the ownership of the instant land was transferred to the Defendant Company, and the establishment of Yangsan Elementary School, which was initially scheduled to be established on the ground, was de facto abolished because it became final and conclusive that the instant land will be newly built on the apartment complex.

The term "project" under Article 91 (1) of the Public Works Act means a specific public project that is the objective of acquiring land through consultation, and it shall be deemed that a specific public project that is the objective of acquiring land falls under the pertinent project that is the purpose of acquiring land immediately (see Supreme Court Decision 93Da11760, 1177, 11784, Jan. 25, 1994, etc.). The term "closed or altered" means that all or part of the acquired land, etc. becomes unnecessary" means a case where the use of the acquired land, etc. for the purpose of acquiring land becomes unnecessary. Whether the land acquired through consultation is unnecessary is not a subjective standard, but a project operator's subjective intent should be determined in light of the purpose and contents of the relevant project, the details and scope of the acquisition through consultation, the relevant land and the objective and rational purpose of the project, etc. (see Supreme Court Decision 93Da11760, Jan. 25, 199).

In this case, the following circumstances revealed by the facts as seen earlier, i.e., the establishment of the “elementary School” was a project for the construction of the “elementary School”, and accordingly, the Seosung Provincial Office of Education publicly announced the implementation plan for the school facilities project by specifying the name of the school. ② In the process that Defendant Gyeonggi-do consulted with the Plaintiff, etc. for the acquisition of the instant land, the purpose of acquiring the instant land was notified to the Plaintiff, etc. as an elementary school construction project, and the Plaintiff, etc. appears to have complied with the acquisition under such premise. ③ Defendant Gyeonggi-do, while conducting the construction project in the vicinity of the instant land, exchanged the instant land and the instant land to a third party by exchanging the land in the apartment complex with the site and the instant land in the middle school, and eventually sold and disposed of the instant land to the said third party. As such, it appears that Defendant Gyeonggi-do, as such disposal act itself, was the ownership of the instant land in the present case, and thus, it appears that it would be reasonable to obtain the ownership of the instant land from Defendant Gyeonggi-do as an enterprise.

(2) On this issue, the Defendants asserted that the pertinent project under Article 91(1) of the Public Works Act refers to “school building project” in the instant case, and that since the instant land is still determined as school site facilities and the Defendant Gyeonggi-do plans to build middle schools on the instant land, the school building project, which is the initial purpose of acquiring the instant land, continues to maintain its identity, and thus, it is necessary to continue to use the instant land for the said public work, and therefore, the right of repurchase does not arise to the Plaintiffs.

Then, according to the fact-finding results with respect to Eul's 6 and 7 evidence, and the office of education of the first instance court's Osan-si and Luxembourg-si Office of Education's initial purpose of opening school on March 19, 2013. Under Article 30 of the National Land Planning and Utilization Act, the Osan-si and the Osan-si Office of Education has already promoted middle school construction on the land of this case with the aim of opening school, and the Osan-si has already changed the purpose of using the land of this case to a middle school on May 19, 209, and publicly announced the urban management plan including the change of the purpose of the relevant school to a middle school (No. 209-41 of the Osan-si Office of Education's initial announcement). However, it is not necessary to efficiently promote the construction of the land of this case to attain the original purpose of the land of this case for the purpose of acquiring the land of this case to the extent that it is not necessary to newly establish the land of this case to attain the original purpose of repurchase right.

C. Determination on the exercise period of the redemptive right

First, the defendant company should interpret that the repurchase right under Article 91 (1) of the Public Works Act shall not be exercised any more than 10 years, regardless of the exclusion period, if the exclusion period of 1 year expires in light of Article 92 (1) of the same Act and Article 92 (1) of the same Act. The purpose business of acquiring the land of this case is to conclude that the land of this case is no longer necessary due to the abolition of September 25, 2008, which announced the fact that the defendant Gyeonggi-do newly establishes the Yangsan Elementary School on the land in apartment complex. Accordingly, the plaintiffs asserted that even if they did not express their intention of repurchase or exercise their repurchase right, it is apparent that 1 year has passed from the discontinuation of the business of acquiring the land of this case, and therefore, the plaintiffs' exercise their repurchase right is unlawful.

The plaintiff et al. expressed his intention to repurchase the land of this case with the complaint of this case on June 24, 2008 as the transfer of ownership was completed in the name of the defendant company with respect to the land of this case on June 24, 2008 under the exchange contract between the defendants, and the plaintiff et al. expressed his intention to repurchase the land of this case with the complaint of this case on November 6, 2009 to the 10th day of the same month as above. However, the plaintiffs deposited the amount equivalent to the compensation paid by the defendant Gyeonggi-do at the time of consultation with the defendant Gyeonggi-do as deposit. However, the purport of Article 9 (1) of the Public Works Act provides that "the amount equivalent to the compensation of this case may be redeemed within 10 years from the time when the whole or part of the land of this case becomes unnecessary, or within 10 years from the acquisition date of this case, within 10 years from the 10th day of this case to 10th day of 10 years from the acquisition date of this case.

D. Determination on the redemption price

Next, the defendant company asserts that even if the right of repurchase is recognized to the plaintiffs, if the price of the land of this case was significantly increased as the price of the land of this case was determined at the time of the acquisition by agreement, the plaintiffs are obliged to pay the redemption price reflecting all of the increase in the market price of the land of this case pursuant to Article 91(4) of the Public Works Act.

However, according to Article 9(1) of the Public Works Act, where the requirements for repurchase arise within the period of repurchase, even if the price of the land to be repurchased has remarkably decreased or decreased compared with the time of acquisition, the repurchase right holder shall only pay to the project operator the amount equivalent to the compensation received in advance and unilaterally express his/her intent to purchase the land (see Supreme Court Decision 99Du3416, Nov. 28, 2000) and in this case, there is no evidence to prove that the price of the land was significantly changed compared with the time of acquisition. Even if the price of the land in this case is significantly changed compared to the time of acquisition of the land in domestic affairs, consultation on the amount between the parties is concluded pursuant to Article 9(4) of the Public Works Act, or the project operator is against the repurchase right, unless the price is determined by a final judgment of the court in a lawsuit against the repurchase right, and thereby, the amount equivalent to the compensation received to exercise the repurchase right without asking the amount so increased or decreased is not reasonable.

E. Determination on the conversion of public works

In addition, the defendant company changed the plan to utilize the land of this case as a middle school site and announced an urban management plan related thereto, and the office of education under the defendant Gyeonggi-do also prepared a middle school construction plan for the land of this case and the decision of urban planning facilities (schools) related to the land of this case is expected to continue to be maintained. Even if there are grounds for repurchase of the land of this case to the plaintiffs, the new middle school construction project of this case is limited to the exercise of the plaintiffs' right to repurchase due to the conversion of public works under Article 4 subparagraph 4 of the Public Works Act as well as the new middle school construction project.

On the other hand, Article 91(6) of the Public Works Act limits the exercise period of repurchase rights only when the State, local government, etc. has changed to another public project with a high public interest within a certain scope. Thus, it is reasonable to view that a new public project should be approved at least under the Public Works Act and other Acts (the Act by which a project approval is deemed granted under the Public Works Act) (see Supreme Court Decisions 97Da36835, Nov. 11, 1997; 93Da5050, Aug. 12, 1994; 93Da5050, Aug. 12, 1994). In this case, there is no evidence to acknowledge that a project approval under the Public Works Act has been granted to a “middle school construction project” claiming the conversion of a public project, and in the case of the conversion of a public project as provided in the above Article, it is not possible for the plaintiffs to exercise the repurchase rights, but it is not necessary for the company to change the relevant public project to the date of redemption.

3. Conclusion

Therefore, pursuant to Article 91 (1) and (5) of the Public Works Act, the plaintiffs can exercise a redemptive right on each of the land listed in the table column of annexed Table 1 among the land in this case, and this can also be asserted against the defendant company, the third acquisitor. As to each of the land listed in the annexed Table 1, the defendant company shall follow the procedure for the cancellation registration of each transfer of ownership as completed as of June 24, 2008 by the Sungwon District Court Seosung District Court 90286, and the defendant Gyeonggi-do has the obligation to implement each transfer of ownership for each of the causes of repurchase. Thus, the plaintiffs' claim against the defendants shall be accepted in all of them. The judgment of the first instance court, which has different conclusions, shall be revoked by accepting the appeal of the unfair plaintiffs, and the execution of the procedure for the cancellation registration of each transfer of ownership as to the defendant company, and the implementation of each of the above procedure for the transfer of ownership against the defendant Gyeonggi-do. It is so decided as per Disposition.

[Attachment]

Judges Lee Jong-hee (Presiding Judge)