[1] Whether the State or a local government acquires the ownership of land designated as a school site necessary for the education of elementary schools, middle schools, and high schools in a land substitution plan for a land readjustment project (affirmative), and whether the State or a local government is liable to pay the project operator the price for the acquisition of the school site (affirmative)

[2] Whether the State or a local government has the right to use or manage the land designated as school site in a land substitution plan for a land readjustment project before a land substitution disposition is publicly announced (negative)

[3] The case holding that Byung's local government has the interest in obtaining confirmation of the above status against Gap association and constitutes a party litigation under the Administrative Litigation Act in case where Gap association has the interest in obtaining confirmation of the above status, and it constitutes a party litigation under the Administrative Litigation Act in case where Gap association has the interest in obtaining confirmation of the status of land ownership from Gap association and Eul association, in case where Gap association was registered as land owner in the land secured by the recompense for development outlay and the land authorized as land substitution plan was transferred to Eul association in the register of land secured by the recompense for development outlay for development outlay

[1] According to Articles 2(1)1, 2(2), and 63 of the former Land Readjustment Project Act (repealed by Act No. 6252, Jan. 28, 2000; hereinafter “Act”), land designated as school site necessary for the education of elementary schools, middle schools, and high schools in a land substitution plan for a land readjustment project shall be reverted to the State or a local government which manages land pursuant to the main sentence of Article 63 of the Act (hereinafter “State, etc.”) on the day following the public announcement of a land substitution disposition, and the State, etc. shall be obligated to pay the project operator the price for the acquisition of school site in accordance with the proviso of Article 63 of the Act.

[2] Even land designated as public facility site in a land substitution plan for a land readjustment project shall be the land subject to management under the public law managed by the project implementer pursuant to Article 59 of the former Land Readjustment and Rearrangement Project Act (repealed by Act No. 6252 of Jan. 28, 2000) until a land substitution disposition is publicly announced. Thus, the State or local government shall not be deemed to have the right to benefit or management of similar property in relation to the land designated as school site in a land substitution plan before a land substitution disposition is publicly announced.

[3] In a case where Gap land rearrangement association obtained authorization of a land substitution plan, and registered Gap association as land owner in the land secured by the recompense for development outlay for development outlay for development outlay for school site and transferred the name of land owner Eul corporation to Eul corporation, and Byung local government was in the status of original acquisition of land ownership on the day following the public announcement of a land substitution disposition against Gap association without a land substitution disposition, the case holding that Byung's interest in land is a legal interest worthy of protection even if it is uncertain, and that it is necessary to verify the legal status of land ownership of Gap corporation and third party corporation's land in the land substitution plan because Eul corporation's land is designated as a school site for elementary school and middle high school education in the land substitution plan, and thus, it is necessary to secure the legal status of land owner Gap corporation and third party corporation's land which is essential for the realization of the important public interest such as school education, and thus, it is necessary to secure the legal status of land owner Gap corporation and third party's land ownership at the same time as the above land's land substitution plan becomes more complicated and uncertain.

[1] Article 2 (1) 1 of the former Urban Development Act (repealed by Act No. 6252, Jan. 28, 200); Article 2 (2) 2 of the Urban Development Act (see Article 2 (2) of the current Urban Development Act; Article 2 subparagraph 13 of the National Land Planning and Utilization Act); Article 54 (1) of the current Urban Development Act (see Article 34 (5) of the current Urban Development Act); Article 62 (2) of the current Urban Development Act (see Article 42 (2) of the current Urban Development Act); Article 63 (see Article 66 (1) of the current Urban Development Act); Article 2 (2) of the former Urban Development Act (see Article 5 of the current Urban Development Act); Article 2 (1) 1 of the Urban Development Act (see Article 60 of the current Urban Development Act); Article 2 (2) of the former Urban Development Act; Article 50 of the same Act (see Article 2)

[2] Supreme Court Decision 95Da43136 delivered on February 28, 1997 (Gong1997Sang, 891) / [3] Supreme Court Decision 2000Da2429 delivered on May 12, 200 (Gong200Ha, 1412)

Gyeongbuk-do (Law Firm, Attorneys Kim Min-hyeong et al., Counsel for the defendant-appellant)

Seafarers Construction Co., Ltd. and one other (Attorneys Sung Jin-jin et al., Counsel for the plaintiff-appellant)

Daegu High Court Decision 2015Na20613 decided April 20, 2016

Of the judgment below, the part of the judgment of the court below concerning the claim against the land subdivision rearrangement association of the district uniting zone No. 1 is reversed, and the same part of the judgment of the court of first instance is revoked, and this part of the case is transferred to the Panel Division of the Daegu District Court. The appeal against the defendant seafarer Construction Corporation is dismissed. The costs of appeal between the plaintiff

The grounds of appeal are examined.

1. As to the grounds of appeal against the land subdivision rearrangement association in the Don-An District District of Defendant U.S. (hereinafter “Defendant Association”)

A. (1) The former Land Readjustment Project Act (repealed by Act No. 6252, Jan. 28, 200; hereinafter “Act”) provides that “A land readjustment project” and “A project for the exchange, division, and consolidation of land, other division, alteration of land category or form and quality, or the installation and alteration of public facilities to be conducted under the provisions of this Act in order to enhance the utility as a site and maintain public facilities” (Article 2(1)1), and “public facilities” and “a project for the installation and alteration of public facilities” shall be prescribed by the Presidential Decree (limited to roads (limited to those which can enhance the utility of the site), parks, squares, rivers, middle and high schools, and other facilities for public use” and “land for public facilities arising from the implementation of a land rearrangement project shall be reverted to the State or a local government on the following day from the date of the public notice of a land substitution disposition, but the land for public facilities resulting from the implementation of a land rearrangement project shall be reverted to the State or a manager on the next day of the public notice of a land substitution disposition.”

According to the above legal provisions, the land designated as a school site necessary for the education of elementary schools, middle schools, and high schools in the replotting plan for compartmentalization and rearrangement projects belongs to the State or a local government (hereinafter “State, etc.”) which manages the land in accordance with the main sentence of Article 63 of the Act on the day following the public announcement of a replotting disposition, and the State, etc. has the obligation to pay the project implementer the price for the acquisition of the school site in accordance with the proviso of Article 63 of the Act.

① Article 2 of the Act does not include the school curriculum of public facilities at the time of the enactment of the Act, while Article 63 only stipulates that the site for public facilities shall be reverted to the State, etc. free of charge. However, as a result of an increase in demand for school attendance in the compartmentalization and rearrangement project, securing the site for schools necessary for compulsory education has emerged as an important task, the legislation was made to revise the original bill to include the school curriculum necessary for compulsory education in public facilities under Article 2, thereby securing the site, and to enable the State, etc. to secure the site for public facilities under Article 2.

(2) The main sentence of Article 63 of the Act prescribes the ownership ownership ownership ownership and time of the site for public facilities. It does not limit the subject matter to the site for public facilities to which the State, etc. gratuitously reverts, or excludes school sites, etc., while the proviso to Article 63 stipulates that school sites, etc. shall be paid. Therefore, the main sentence of Article 63 shall be deemed to apply to the general public without paying or without compensation.

③ Schools realize the material value of the right of all citizens to receive education and the duty of children to receive compulsory education under Article 31(1) and (2) of the Constitution, and as necessary infrastructure to improve the level of urban and residential environment and the quality of life of the people, the State has the duty to appropriately secure school sites in order to protect the fundamental rights, which are the right to receive education of the people (see, e.g., Constitutional Court en banc Order 2008Hun-Ba70, Apr. 29, 2010). Accordingly, the former Urban Planning Act (wholly amended by Act No. 6243, Jan. 28, 2000) provides for a plan for establishing schools within urban planning zones as urban planning facilities, and the Act provides for facilities installed by urban planning as urban planning facilities [Article 2(1)1(b) and 3], and the Act provides that school facilities project implementers shall be able to arbitrarily dispose of or secure ownership in school sites, such as the right to manage public facilities and other facilities determined as urban planning facilities, and thus it may be determined.

(4) Article 54 (1) of the Act provides that "An implementer may appropriate a certain land for expenses incurred in the compartmentalization and rearrangement project or for the purposes stipulated in the regulations, articles of incorporation, implementation rules, or business plan as land substitution plan without designating it as land substitution in the land substitution plan, and Article 62 (6) of the Act provides that "the implementer shall acquire the ownership of the land allotted by the authorities in recompense for development outlay under the provisions of Article 54 (excluding those already disposed under the provisions of Article 57 (4)), the reserved land shall acquire the ownership of the land as of the following day from the date when the land substitution plan is publicly announced," while it is clear that the land is an urban planning facility and the public facility shall be included in the land which is not determined by the project implementer for the purposes stipulated in the regulations, articles of incorporation, implementation rules, or business plan (see Supreme Court Decision 2005Du333, Sep. 14, 2006). The land designated as land reserved in the land substitution plan is merely the land reserved in a school, and cannot be viewed as the State for payment.

⑤ Meanwhile, the State, etc. is obligated to pay the project implementer the price for acquisition instead of acquiring the ownership of a school site. Thus, it cannot be said that the State, etc.’s original acquisition of a school site on the following day of the public announcement of a disposition of replotting violates the property right of the project implementer,

(2) Even if land is designated as a site for public facilities in a land substitution plan, until a land substitution disposition is publicly announced, it is only a land subject to management under public law managed by a project implementer pursuant to Article 59 of the Act (see Supreme Court Decision 95Da43136, Feb. 28, 1997, etc.). Thus, it cannot be deemed that the State, etc. has the right to benefit from or manage the land similar to a real right before a land substitution plan is publicly announced, on the ground that it is a land designated as

(3) On the other hand, the legal status that seeks to eliminate risks and unclaimed bills by the action of confirmation is not necessarily to be supported by a specific right, and even if the occurrence of a specific right based on its legal status is a condition or time limit, or a legal relation is in the process of formation, etc., if it constitutes a legal interest worthy of protection, the benefit of confirmation can be recognized (see Supreme Court Decision 2000Da2429, May 12, 2000, etc.).

B. The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following.

(1) The Defendant Union, upon obtaining authorization to establish the association on January 27, 1996 and authorization to implement the project, is implementing a land readjustment project on the 289,800 square meters of the members of the Seogdong, Seogdong, Seogdong, Chang-dong, Chang-dong, and Chang-dong.

(2) Upon obtaining authorization of a land substitution plan on April 24, 1997, the Defendant Union obtained authorization of 16,463 square meters in the North-gu ( Address omitted) school bridge as well as a school site in the area of land allotted by the authorities in recompense for development outlay, and registered the Defendant Union as the owner of the instant land in the register of land allotted by the authorities in recompense for development outlay.

(3) On May 25, 2009, the board of representatives of the Defendant Union decided to pay in kind the instant land to the Defendant Seafarers Construction Co., Ltd. (hereinafter “Defendant Company”). Accordingly, on July 31, 2009, the Defendant Union transferred the name of the owner of the instant land to the Defendant Company on the registry of land allotted by the authorities in recompense for development outlay.

(4) On the other hand, a disposition of replotting for the land readjustment project is not taken until now.

C. Examining the above facts in light of the legal principles as seen earlier, if the instant land is designated as a school site necessary for the education of elementary schools and middle and high schools in a land substitution plan, the Plaintiff’s ownership is deemed to have been acquired at the original time, and thus, the Plaintiff’s interest in the instant land constitutes a legal interest worth protecting even if it is uncertain.

In addition, the purport of Articles 63 and 80 of the Act is to ensure the stable and reliable procurement of school sites that are essential for the realization of the important public interest of school education. If the ownership of the land of this case is attributed to the defendant association or the third party, including the defendant company, due to the disposition of replotting in the name of the owner in the register of land allotted by the authorities in recompense for development outlay, the resolution of the dispute may become more complicated and may cause trouble in securing school sites. Therefore, it is necessary to bring such risk or apprehension out through the instant confirmation lawsuit.

In addition, the defendant union disputes the plaintiff's status by registering the land of this case in the ledger of land allotted by the authorities in recompense for development outlay, while the plaintiff cannot exercise the right to use or manage similar rights to the land of this case at present, and thus, the defendant union's confirmation judgment against the defendant union is an effective and appropriate means to eliminate the plaintiff's legal status's risk or apprehension.

Therefore, there is a benefit in confirmation to seek confirmation against the defendant association that the plaintiff is in the status of original acquisition of ownership of the land in this case on the day following the public announcement of replotting disposition.

D. Nevertheless, the lower court determined that the instant lawsuit seeking confirmation of future rights or legal relations was nothing more than seeking confirmation, and that there was no benefit in confirmation by deeming that the Plaintiff could directly achieve the purpose of the claim by demanding performance against the Defendant Company. In so doing, the lower court erred by misapprehending the legal doctrine on the benefit of confirmation, thereby adversely affecting the conclusion of the judgment.

Furthermore, the relationship between the country, etc. formed by the original acquisition of the land for public facilities by the land readjustment and rearrangement project is a public law relationship (see Supreme Court Decision 2009Da56993, Dec. 27, 201, etc.). Therefore, the Plaintiff’s seeking confirmation of the above status against the Defendant Union constitutes a party litigation under the Administrative Litigation Act, and therefore, the exclusive jurisdiction of the first instance court of this case is the collegiate division of the Daegu District Court.

Nevertheless, the first instance court and the lower court neglected to have violated the exclusive jurisdiction by filing a lawsuit for this part of the lawsuit with the Daegu District Court branch court. In so doing, the first instance court and the lower court erred by misapprehending the legal principles on party litigation under the Administrative Litigation Act, thereby violating the provisions on exclusive jurisdiction.

2. As to the ground of appeal against the defendant company

If a land substitution plan is designated as a school site necessary for the education of elementary schools, middle and high schools, the State, etc. acquires the ownership of the land at the following day of the public announcement of the land substitution disposition, but the State, etc. cannot be deemed to have the right to use or manage the land similar to the real right before the public announcement of the

Therefore, even if the land in this case is designated as a school site necessary for elementary, middle, and high school education in a land substitution plan, and it cannot be entered in the land substitution plan register, the Plaintiff cannot seek cancellation of the owner’s name against the owner on the land substitution plan register based on the right to use or manage similar real rights to the land in this case without a land substitution disposition.

Therefore, the judgment of the court below that rejected the Plaintiff’s claim against the Defendant Company is just in its conclusion, and contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles on the reversion of ownership of land

3. Conclusion

Therefore, the part of the judgment of the court below regarding the Plaintiff’s claim against the Defendant Union is reversed, the same part of the judgment of the court of first instance is revoked, and this part of the case is transferred to the competent court for further proceedings consistent with this Opinion. The appeal against the Defendant Company is dismissed. The costs of appeal between the Plaintiff and the Defendant are assessed against the losing party. It is so decided as per

Justices Kim Shin (Presiding Justice)