The purport of recognizing a redemptive right under Article 91(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects / In cases where an acquisition by consultation, such as that the designation of an implementor was not effective from the beginning or that there was no legal basis for the relevant urban planning facility project at the time of acquisition of land, etc., is null and void, whether a landowner at the time of acquisition by consultation may exercise a redemptive right under the said provisions (negative)

Article 91(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”) provides that where all or part of the acquired land becomes unnecessary due to the discontinuation or alteration of the relevant project or for other reasons, the landowner at the time of the acquisition date or his/her general successor (hereinafter “owner”) may repurchase the land by paying to the project operator the amount equivalent to the compensation paid for the land.

The purport of the Land Compensation Act to recognize a repurchase right is that it is fair to recover the ownership of the land, etc. according to the intention of the original owner when it becomes unnecessary to use the land, etc. for the relevant public works, as the original owner does not lose ownership of the land, etc. based on his/her own voluntary intention even if he/she received a legitimate compensation for losses from the project owner for the compensation of the land, etc.

Meanwhile, Article 4 subparag. 7 of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8665 of Oct. 17, 2007; hereinafter “former Land Compensation Act”) and Article 95(1) of the former National Land Planning and Utilization Act (amended by Act No. 8250 of Jan. 19, 2007; hereinafter “former National Land Planning and Utilization Act”) provide that urban planning facility projects under the former National Land Planning and Utilization Act fall under public projects under Article 4 of the former Land Compensation Act. Article 86(5) of the former National Land Planning and Utilization Act provides that a person who is not an administrative agency under Article 86(1) through (4) of the same Act shall be designated as an implementer from the Minister of Construction and Transportation, etc. as prescribed by the Presidential Decree in order to implement urban planning facility projects.

Considering such provisions of the Land Compensation Act and the legislative purport of the former National Land Planning Act, even if an implementer of an urban planning facility project acquired land necessary for the implementation of the urban planning facility project by agreement, if the land was designated as an implementer of the urban planning facility project, and the acquisition by agreement is deemed to have no effect from the beginning or no legal basis for the relevant urban planning facility project at the time of the acquisition of the land, it is reasonable to view that a repurchase right under Article 91(1) of the Land Compensation Act may not be exercised even if the landowner at the time of the acquisition by agreement is relieved of the right due to the restoration

Article 91(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Article 4 Subparag. 7 (see current Article 4 Subparag. 8) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Amended by Act No. 8665, Oct. 17, 2007); Article 86(5) and Article 95(1) of the former National Land Planning and Utilization Act (Amended by Act No. 8250, Jan. 19, 2007);

Supreme Court Decision 94Da31310 Decided February 10, 1995 (Gong1995Sang, 1302) Supreme Court Decision 98Da60422 Decided August 22, 2000 (Gong200Ha, 1987)

Plaintiff (Law Firm Hun-Ga, Attorneys Kang Gyeong et al., Counsel for the plaintiff-appellant)

Jeju Free International City Development Center (Law Firm Barun, Attorneys Kim Jong-Un et al., Counsel for the defendant-appellant)

Jeju District Court Decision 2019Na12084 Decided September 9, 2020

The judgment below is reversed, and the case is remanded to Jeju District Court.

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

1. Case summary and key issue

A. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

(1) On November 5, 1997, the Seopopopo-si, which was issued a decision on urban planning facilities to newly build an “ amusement park”, which is an urban planning facility, was to implement a resort-type housing complex development project (hereinafter “instant project”) with residential facilities (including condominiums, electric house, etc.), golf courses (including connected residential areas), medical facilities, commercial facilities, sports centers, etc. in the Seopo-si, Seopo-si.

(2) As to the instant project on November 14, 2005, the Seogpopo City designated the Defendant as the project implementer and authorized and publicly notified the implementation plan pursuant to Articles 86 and 88 of the former National Land Planning and Utilization Act (amended by Act No. 8250, Jan. 19, 2007; hereinafter “former National Land Planning Act”).

(3) On May 18, 2006, the Defendant concluded a sales contract with the land owner within the project site to purchase the purchase price of KRW 120,56,660 (hereinafter “instant contract”) and obstacles from the Plaintiff, Seopo-si ( Address 2 omitted) Seopo-si (hereinafter “instant mother land”). On May 19, 206, the ownership transfer registration for the instant mother land was completed on the grounds of sale on May 18, 2006 under the Defendant’s name on May 18, 2006, and the Defendant paid the Plaintiff the purchase price and the agricultural loss compensation amount.

(4) Since then, among the 5,346 square meters in Seopo-si ( Address 3 omitted), the land of this case became the part 1,637 square meters in the ship with the indication of the drawings attached to the judgment below, and the part 264 square meters in the ship with the indication of the above drawings among the 790 square meters in Seopo-si, Seopo-si ( Address 3 omitted) with the registration of the combination of lots and the registration of the subdivision of lots (hereinafter “instant land”).

(5) Of the landowners who expropriated land for the instant project, four persons, including Nonparty 1, filed a lawsuit seeking revocation of the adjudication of expropriation against the Jeju Special Self-Governing Province Local Land Expropriation Committee, etc. In the instant case, the appellate court of Gwangju High Court ( Jeju), 2009Nu401, which was the appellate court of the instant case, approved a recreational housing complex development project, which does not fall under an amusement park, as an urban planning facility project, on January 12, 2011, and thus, the instant authorization disposition in violation of the former National Land Planning Act in violation of the former National Land Planning Act is deemed null and void as serious and obvious defects are deemed null and void, and the said adjudication of expropriation based on the instant authorization disposition, which was the immediate invalidation, was also deemed null and void, and the said judgment of the appellate court became final and conclusive as it was by the final judgment of the appellate court on March 20, 2015.

(6) Afterwards, eight including Nonparty 2 and others filed a lawsuit against Jeju Special Self-Governing Province Governor and Seopopo City Mayor for nullification, etc. of the total 15 dispositions, including the instant authorization dispositions, etc. taken place for the implementation of the instant project on September 13, 2017. The said court rendered a judgment confirming that the said 15 dispositions, including the instant authorization dispositions, were null and void, and the appellate court rendered a judgment dismissing the appeal on September 5, 2018 in the case No. 2017Nu175, which is the appellate court of Gwangju High Court ( Jeju), the appellate court rendered a judgment dismissing the appeal on September 5, 2018, which is the final appeal of Supreme Court No. 2018Du5977, Jan. 31, 2019, and the judgment of the first instance court became final and conclusive as it is (hereinafter “related case”).

(7) On April 20, 2016, the Plaintiff filed a lawsuit claiming the transfer of ownership based on the repurchase on the instant land, and the lower court accepted the Plaintiff’s claim on the ground that the instant project may exercise the repurchase right even if it is an original impossibility.

B. The key issue of the instant case is whether a repurchase right under Article 91(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”) can be exercised even where the instant authorization disposition becomes invalid and it was extremely impossible to implement the instant project in a timely manner.

2. As to the requirement for exercise of a redemptive right (ground of appeal No. 2)

A. Article 91(1) of the Land Compensation Act provides that where all or part of the acquired land becomes unnecessary due to the discontinuation or alteration of the relevant project or on other grounds, the landowner at the time of the acquisition date or his/her general successor (hereinafter “owner”) shall be entitled to repurchase the land by paying to the project operator the amount equivalent to the compensation received for the land.

The purport of the Land Compensation Act to recognize a redemptive right is that it is fair to recover the ownership of the land, etc. according to the original owner’s intent when it becomes unnecessary to use the land, etc. for the relevant public works, since the original owner is not deprived of ownership of the land, etc. based on his/her own voluntary intention even if he/she received a legitimate compensation for losses from the project operator for the price of the land, etc. (see Supreme Court Decision 94Da31310, Feb. 10, 1995, etc.).

Meanwhile, Article 4 subparag. 7 of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8665 of Oct. 17, 2007; hereinafter “former Land Compensation Act”) and Article 95(1) of the former National Land Planning Act provide that urban planning facility projects under the former National Land Planning Act fall under public projects under Article 4 of the former Land Compensation Act. Article 86(5) of the former National Land Planning Act provides that an entity, other than administrative agencies under paragraphs (1) through (4) of the same Article, shall be designated as an implementer from the Minister of Construction and Transportation, etc. as prescribed by the Presidential Decree in order to implement urban planning facility projects.

B. Considering such provisions of the Land Compensation Act and the legislative purport of the former National Land Planning Act, even if an implementer of an urban planning facility project acquired land necessary for the implementation of the urban planning facility project by agreement, in cases where the acquisition by agreement, such as where the designation of the implementer has no effect from the beginning or it is deemed that there was no legal basis for the relevant urban planning facility project at the time of the acquisition of the land, is null and void as a matter of course, it is reasonable to view that a repurchase right under Article 91(1) of the Land Compensation Act may not be exercised, even if the landowner at the time of the acquisition by agreement is relieved of rights due to the restoration

(1) In Article 91(1) of the Land Compensation Act, the prior meaning of “dispensing” as one of the causes for the occurrence of a redemptive right is that “a project is discontinued or removed”, and it is difficult to deem that the case where no legal basis exists for the project to be promoted from the beginning includes the case where the project was discontinued. In addition, the term “necessary” can only be deemed to mean the case where the project becomes unnecessary ex post facto, but it only means the case where the project becomes unnecessary. In other words, Article 91(1) of the Land Compensation Act is deemed to include the case where the project was lawfully performed but the project was discontinued due to the subsequent cause, and it can be deemed to be a provision to regulate the case where the relevant land becomes unnecessary due to the discontinuation of the project.

(2) Acquisition by consultation under the Land Compensation Act, although taking the form of a contract for sale and purchase under private law, can be accepted by the Land Compensation Act, and compensation for losses in the acquisition by consultation and expropriation is based on the same theoretical basis. There are various public law regulations in the process of the acquisition by consultation, and even in cases where a landowner accepts consultation against his/her will due to psychological coercion that he/she would immediately be subjected to expropriation if he/she fails to comply with consultation, acquisition by consultation is practically carrying out the functions of public law similar to expropriation. Therefore, in cases of acquisition by consultation, it is necessary for public interest, as in cases of acquisition by consultation, must be done by law, and must be paid just compensation, and acquisition by consultation that does not meet the above requirements does not take effect (see Supreme Court Decision 98Da60422 delivered on August 22, 200).

As seen earlier, the purchaser of the acquisition through consultation shall be the project implementer that carries out the public project, and a person other than the person eligible to become an implementer pursuant to Article 86(1) through (4) of the former National Land Planning Act may implement the urban planning facility project only after being designated as an implementer by the Minister of Construction and Transportation, etc.

In addition, if the authorization of an implementation plan for an urban planning facility project is deemed to be void as a matter of course, the acquisition through consultation may be deemed to have no effect from the beginning as there is no need for public interest.

(3) As such, in a case where the acquisition by agreement is null and void as a matter of course, the landowner continues to hold ownership over the land acquired through consultation. As such, the landowner may be relieved of his/her right by recovering the title of registration or by taking over possession of the land, etc. in a manner that exercises a claim for claim for return of unjust enrichment based on ownership or a claim for return of unjust enrichment. In such a case, there is no need to recognize a redemptive right to recover ownership to the original owner in accordance with the principle of fairness, and rather, recognizing a redemptive right goes against

(4) If it is deemed that the original owner who holds ownership continues to be able to exercise a redemptive right under the Land Compensation Act since the acquisition by agreement was void as soon as possible from the beginning, it is unreasonable to recognize the exercise of the redemptive right even in the case where the acquisition by agreement is null and void because it is difficult for the original owner who holds ownership and the project operator who does not hold ownership to obtain the fact that the sale contract is concluded by the seller as the buyer.

C. Determination on the instant case

With respect to a total of 15 dispositions taken for the implementation of the instant project, including the instant authorization disposition, a judgment became final and conclusive to confirm that the instant project constitutes invalidation on the grounds that the instant project corresponds to the operation of facilities, the distance of public nature and distance, unlike the determination of urban planning facilities. Ultimately, all dispositions regarding the implementation of the instant project are null and void, and there was no room for the instant project to constitute “public works” from the beginning. Accordingly, for the implementation of the instant project, the instant contract concluded with the acquisition method for the purpose of a project that is not likely to constitute “public works” under the former Land Compensation Act from the beginning and has no effect because it does not meet the requirements for public interest. In addition, since the instant authorization disposition designating the Defendant as the project implementer is null and void, the Defendant, who was not in the position of the project implementer at the time of entering into the instant contract, concluded the instant contract with respect to the instant

As long as the instant contract concluded as part of the instant project and its part is null and void, it cannot be evaluated that the instant land becomes unnecessary due to the following reasons, such as the discontinuation of the instant project.

Therefore, the plaintiff, who continued to hold the ownership of the land of this case from the beginning, can not exercise a repurchase right under Article 91 (1) of the Land Compensation Act, apart from the fact that he can exercise a real right claim based on ownership against the defendant, etc.

D. Nevertheless, the lower court accepted the Plaintiff’s primary claim on the erroneous premise that the Plaintiff may exercise the right of repurchase with respect to the instant land on the ground that there is no reasonable ground to deem that the provision on the right of repurchase under Article 91(1) of the Land Compensation Act is not applicable even in cases where a public project is deemed an original impossible. In so determining, the lower court erred by misapprehending the legal doctrine on the right of repurchase under Article 91(1) of the Land Compensation Act, thereby adversely affecting the conclusion of the judgment. The allegation

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Jae-chul (Presiding Justice)