[1] Legislative intent of Article 65(2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, and whether a lawsuit on ownership ownership of infrastructure for rearrangement under the latter part of the same Article constitutes a party lawsuit under Article 3 subparag. 2 of the Administrative Litigation Act (affirmative)

[2] The measures to be taken by the court of the lawsuit in a case where the plaintiff has mistakenly filed a case to be brought as a civil litigation without intention or gross negligence

[1] Article 65(2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (wholly amended by Act No. 14567, Feb. 8, 2017; hereinafter “former Act”) provides that “The maintenance infrastructure newly installed by a project implementer, other than the head of a Si/Gun or the Housing Corporation, in the course of implementing an improvement project, shall gratuitously revert to the State or a local government which will manage the infrastructure; and the State or a local government’s fundamental infrastructure, the use of which is ceased due to the implementation of an improvement project, shall be gratuitously transferred to the project implementer to the extent equivalent to the installation cost of the newly installed fundamental infrastructure.” The former part aims to achieve the purpose of the Act by allowing the State or a local government to gratuitously revert the “infrastructure newly installed by the implementation of an improvement project” to secure the infrastructure inevitably required in the course of an improvement project and to efficiently maintain and manage such infrastructure. The latter part of the Act purports to preserve the infrastructure within the extent equivalent to the State or a local government’s property loss incurred by the project implementer without compensation.”

Considering the legislative purport of Article 65(2) of the former Act and the legislative purpose of the former Act on the Maintenance and Improvement of Urban Areas (Article 1), the legal relationship between the State or a local government and the maintenance and improvement project operator with respect to the ownership of infrastructure under the latter part of the said Act shall be deemed to be the legal relationship under public law. Therefore, the legal relationship with respect to the ownership of infrastructure under the latter part of the said Act is the legal relationship under public law, which is the legal relationship under public law, and constitutes a party litigation under Article

[2] In a case where the plaintiff, without intention or gross negligence, made a mistake in a civil litigation against a case that the plaintiff should file as an administrative litigation, if the court of the lawsuit has jurisdiction over such administrative litigation at the same time, it shall be examined and judged as an administrative litigation. If the lawsuit does not have jurisdiction over such administrative litigation, the court of the lawsuit shall transfer it to the competent court, not an unlawful lawsuit, unless it is the case where the lawsuit is filed as an administrative litigation because it is obvious that the procedure and the period of filing the lawsuit are over the previous trial as an administrative litigation and the disposition subject to the administrative litigation is in a state where there is no disposition, etc. which is subject to the administrative litigation

[1] Article 1 (see current Article 1) and Article 65 (2) (see current Article 97 (2)) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (wholly amended by Act No. 14567, Feb. 8, 2017); Article 3 subparagraph 2 of the Administrative Litigation Act / [2] Article 7 of the Administrative Litigation Act; Article 34 (1) of the Civil Procedure Act

[1] Supreme Court Decision 2007Du6663 Decided July 12, 2007 (Gong2007Ha, 1284) / [2] Supreme Court Decision 2015Da21526 Decided November 9, 2017 (Gong2017Ha, 2304)

Jeon-si District Housing Development and Improvement Project Association (Attorneys Yoon Young-young et al., Counsel for the plaintiff-appellant)

Republic of Korea (Law Firm Sejong, Attorneys Kim Jong-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2014Na2048079 decided May 21, 2015

The judgment of the court of first instance is reversed, and the judgment is revoked. The case is transferred to the Seoul Administrative Court.

Before determining the grounds of appeal, we examine it ex officio.

1. Article 65(2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (wholly amended by Act No. 14567, Feb. 8, 2017; hereinafter “former Act”) provides that “The maintenance infrastructure newly installed by a project implementer, other than the head of a Si/Gun or the Housing Corporation, in the course of implementing an improvement project, shall gratuitously revert to the State or a local government which will manage such infrastructure, and the State or a local government’s fundamental infrastructure, the use of which is ceased due to the implementation of an improvement project, shall be gratuitously transferred to the project implementer to the extent equivalent to the installation cost of the newly installed fundamental infrastructure.” The former part aims to achieve the purpose of public law by allowing the State or a local government to gratuitously revert the “infrastructure newly installed in the course of an improvement project” to secure the infrastructure inevitably required in the course of an improvement project and to efficiently maintain and manage such infrastructure. The latter part of the same Act provides that the project implementer’s property losses arising from the gratuitous reversion of the infrastructure to the State or a local government within the scope of 207.

Considering the legislative purport of Article 65(2) of the former Act and the legislative purpose of the former Act on the Maintenance and Improvement of Urban Areas (Article 1), the legal relationship between the State or a local government and the maintenance and improvement project operator with respect to the ownership of infrastructure under the latter part of the said Act shall be deemed to be the legal relationship under public law. Therefore, the legal relationship with respect to the ownership of infrastructure under the latter part of the said Act is the legal relationship under public law, which is the legal relationship under public law, and constitutes a party litigation under Article

2. Examining the foregoing legal doctrine in light of the foregoing, the instant lawsuit constitutes a party litigation as to the ownership of the fundamental infrastructure under the latter part of Article 65(2) of the former Act. Nevertheless, the first instance court and the lower court erred by misapprehending the legal doctrine on a party litigation under the Administrative Litigation Act, which deemed that the instant lawsuit constituted a civil litigation, thereby going to the judgment on the merits, thereby violating the provisions on exclusive jurisdiction.

3. Meanwhile, in a case where the Plaintiff filed a lawsuit as an administrative litigation without intention or gross negligence, and the court of the lawsuit has jurisdiction over such administrative litigation, if any, it shall be examined and judged as an administrative litigation. If the lawsuit has no jurisdiction over such administrative litigation, the court of the lawsuit must transfer it to the competent court, not an unlawful lawsuit, unless it is the case where the requirements for the lawsuit are clearly satisfied even if it is filed as an administrative litigation because it is obvious that the procedure and the period of filing the lawsuit are over the previous trial as an administrative litigation and the disposition subject to the administrative litigation is in a state where no disposition, etc. exists (see Supreme Court Decision 2015Da21526, Nov. 9, 2017).

In light of the record, it is difficult to readily conclude that the lawsuit of this case is subject to requirements for litigation as an administrative litigation, and it is reasonable to transfer this case to the competent court in accordance with the above legal doctrine

4. Therefore, without further proceeding to decide on the grounds of appeal, the judgment of the court of first instance is reversed ex officio, and the judgment of the court of first instance is revoked, and the case is transferred to the competent court for further proceedings consistent with this Opinion. It is so decided as per

Justices Min You-sook (Presiding Justice)