[1] In a case where a district development plan under the former Housing Construction Promotion Act is established, whether a right to demand sale can be exercised without designation of a rearrangement zone under the Act on the Maintenance and Improvement of Urban Areas and

[2] Whether a project implementer may exercise a right to demand sale under Article 39 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents for Residents against a person who owns only the land within a housing complex for a housing reconstruction project

[3] In a case where the right to demand sale under Article 39 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents was exercised and the follow-up procedure was conducted without paying the purchase price, whether the right of private property of the reconstruction participants is infringed (negative)

[4] The meaning of "market price" where a person who did not participate in a housing reconstruction project exercises the right to sell under Article 39 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents

[1] Article 39 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7056 of Dec. 31, 2003), Article 5 (3) of the Addenda (amended by Act No. 7056 of Dec. 30, 2002) / [2] Article 2 subparagraph 9 (b) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7056 of Dec. 31, 2003), Article 16 (2), (3), Article 19 (1), and Article 39 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents / [3] Article 39 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7056 of Dec. 31, 2003), Article 23 of the Constitution / [4] Article 39 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents

[3] Supreme Court Decision 2008Da12453 Decided July 10, 2008 (Gong2008Ha, 1152), Constitutional Court en banc Decision 97HunBa73, 98HunBa60, and 62 Decided September 16, 199 (HunGong38, 762) / [4] Supreme Court Decision 95Da38172 Decided January 23, 1996 (Gong196Sang, 662)

Plaintiff Reconstruction and Maintenance Project Association (Attorney Kim Young-young, Counsel for plaintiff-appellant)

Defendant 1 Co., Ltd and two others (Attorneys Choi Young-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2007Na18296, 18302, 18319 decided January 23, 2008

Each appeal is dismissed. The costs of appeal are assessed against each party.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”)’s grounds of appeal

A. As to whether a right to demand sale can be exercised without designating an improvement zone

According to the facts duly established by the court below and the records, it is necessary to revise the plan for the development of apartment zone in Suwon City so that the apartment zone in this case can be constructed as a high-rise area in the low-rise area on July 13, 1996, and the plaintiff (Counterclaim defendant; hereinafter referred to as the "Plaintiff") obtained approval from the Gyeonggi-do on November 22, 199 under the former Housing Construction Promotion Act (amended by the Housing Act No. 6916 of May 29, 2003) as a housing association development plan under Article 44 (1) of the former Housing Construction Promotion Act (amended by the Housing Construction Promotion Act No. 6916 of May 29, 200). The plaintiff purchased each land in this case, etc. in addition to the site of the apartment zone in this case from the time of its establishment and planned to promote reconstruction with the total area of 24,784 square meters as the site area in this case, and the land in this case was also included in the reconstruction project district in the reconstruction zone of this case for 203 years.

Although the reasoning of the court below is inappropriate, the conclusion that the plaintiff's exercise of the claim for sale of this case is legitimate is justified.

The court below did not err by misapprehending the legal principles as to the requirements for establishing a sale claim as alleged in the grounds of appeal.

B. As to whether the Defendants become the counter-party to the exercise of the claim for sale of this case

According to the relevant Acts and subordinate statutes, Article 2 subparag. 9(b), Articles 16(2) and (3), and 19(1) of the Do Government Act, a person who owns only land within a housing complex for a housing reconstruction project implemented by a housing reconstruction and improvement project association does not correspond to a “owner of land, etc.” and does not qualify as a “land, etc.” and does not become a partner of the association’s consent to the establishment of the association under Article 16(2) and (3) of the Do Government Act. However, as otherwise alleged in the grounds of appeal, Article 39 of the Do Government Act provides, “A project operator may request a sale by applying mutatis mutandis the provisions of Article 48 of the Act on the Ownership and Management of Aggregate Buildings to a person (including a person who owns only a building or land) who fails to consent to the establishment of an association under Article 16(2) and (3) of the Do Government Act in implementing a housing reconstruction project.” Thus, a project operator may also exercise a right to claim a land only within a housing reconstruction project.

Examining the facts established by the court below in light of the above legal principles, the defendants are only owners of land in the project area of this case who are not the other party to the consent of the establishment of the association, but can be the other party to the exercise of the right to demand sale under Article 39 of the Do Administration Act. Thus, the court below's conclusion that although the reasoning of the court below is not appropriate, the defendants can become the other party to the exercise of the right to demand sale under Article 39 of the Do administration Act

The judgment of the court below is not erroneous in the misapprehension of legal principles as to the other party of the right to demand sale under Article 39 of the Do administration Act.

C. As to whether the exercise of the instant claim for sale infringes on private property rights

The right to demand sale stipulated in Article 39 of the Do Government Act provides that the said Act may be deprived of property rights against the will of a person who has failed to participate in reconstruction for a smooth progress of a reconstruction project, and its substance is the same as the public expropriation under Article 23(3) of the Constitution (see, e.g., Supreme Court Decisions 2008Da12453, Jul. 10, 2008; 2008HunBa73, Jul. 10, 2008; 97HunBa73, 98HunBa62, 98HunBa60, Sept. 16, 199). Even if the Plaintiff exercised the right to demand sale under Article 39 of the Do Government Administration Act and conducted a subsequent procedure without paying the purchase price to the Defendants, it cannot be said that the Defendants’ fundamental rights, who are participants in reconstruction, excessively infringed or infringe upon private property rights.

Therefore, we cannot accept the allegation in the grounds of appeal by Defendant Jung-ju Construction Corporation as to this point.

2. Plaintiff’s ground of appeal

If a project implementer exercises a right to demand sale under Article 39 of the Do administration Act to a person who does not participate in a housing reconstruction project, the sale contract is established based on the market price for the land or building of the person who does not participate in the housing reconstruction project at the same time with his/her intention to exercise the right to demand sale. The market price is the objective market price for the land or building at the time when the right to demand sale has been exercised, which includes the price of the land or building appraised on the condition that the land or building is not the market price under the premise that the land or building is to be demolished due to the aging or the current situation at which the housing reconstruction project has not been implemented, not the market

The court below calculated the average price of each of the lands of this case by determining the market price of each of the lands of this case by adopting the appraisal result of June 27, 2006 by adopting the appraisal result of this appraiser's appraisal result as of June 27, 2006, on the ground that the appraisal result of this case was calculated as the "market price in the case of the premise for reconstruction" on the ground that the appraisal result of the appraisal result of each of the lands of this case was calculated by taking into account the heat of the land conditions, such as the form (e.g., inferior form), size, utility value as a single land, contribution ratio, etc., even if the present condition of each of the lands of this case is to be reconstructed even if it is on the road.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, it is justifiable for the court below to adopt the appraisal result of the appraiser who assessed the value of each land of this case on the premise of reconstruction.

The court below did not err by misapprehending the legal principles as to market price calculation of each land of this case or by violating the rules of evidence.

3. Conclusion

Therefore, each appeal is dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)