[1] The meaning of "the project in question" and "the whole or part of the acquired land becomes unnecessary" under Article 91 (1) of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, and the standard for determining whether the acquisition through consultation or the expropriated land is unnecessary

[2] The case holding that the judgment below erred by failing to exhaust all necessary deliberations, in a case where Gap local government claimed compensation for damages due to the loss of the right to repurchase against Gap local government, on the ground that Eul et al. claimed that the public parking lot was no longer necessary for the parking lot project and that the public parking lot was no longer necessary for the parking lot project, and Eul et al. claimed compensation for damages due to the loss of the right to repurchase against Eul et al., on the ground that the public parking lot was closed, where Eul et al. established a public parking lot after consultation on each land owned by Eul et al. included in the project site; after that, the whole area including the above land was designated as an urban renewal acceleration district and the public parking lot was discontinued; and accordingly, Eul et al. was entitled to exercise the right to repurchase on the above land

[1] Article 91(1) of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Act No. 11017, Aug. 4, 201) provides, “Where all or part of the land acquired through consultation or expropriation becomes unnecessary due to the discontinuation, alteration, or other causes of the relevant project within 10 years from the date of acquisition of the land, the landowner at the time of the acquisition date or his/her general successor shall pay to the project operator an amount equivalent to the compensation paid for the relevant land within one year from the date all or part of the relevant land becomes unnecessary, or within 10 years from the date of acquisition of the relevant land.” The term “relevant project” as provided in the foregoing provision refers to a specific public project aimed at the acquisition through consultation or expropriation of the land. The term “if all or part of the acquired land becomes unnecessary” means a case where the project operator becomes unnecessary to use the land for the purpose of acquisition, and whether the land acquired through consultation or expropriated land has no need to be determined by subjective standards, not subjective intent of the project operator, the purpose and purpose and purpose of the relevant project.

[2] In a case where Party A, while implementing an urban planning facility project (hereinafter “parking lot project”), acquired each land owned by Party B, etc. included in the project site, and thereafter installed a public parking lot, and thereafter announced the alteration of an urban renewal acceleration district and urban renewal acceleration plan (hereinafter “urban renewal acceleration plan”) including the contents of designating one area including the above land as an urban renewal acceleration district, and accordingly notified the authorization for the implementation of the housing redevelopment project in the urban renewal acceleration district (hereinafter “redevelopment project”), the case held that Party B, etc. did not need to carry out a parking lot project, and sought damages against Party A due to the loss of the right to repurchase, the lower court’s failure to implement the urban renewal acceleration plan including the contents of the public parking lot to abolish the public parking lot, or that the implementation of the redevelopment project on the above land, etc. is not necessary for the utility or public interest as a parking lot for which the public parking lot was used for the previous purpose, and it is difficult to readily conclude that the above public parking lot’s implementation of the renewal promotion plan or the above public project is no longer necessary for the aforementioned public project’s installation of 10.

[1] Article 91(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Amended by Act No. 11017, Aug. 4, 2011) / [2] Article 4 subparag. 5 and Article 91(1) and (6) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Amended by Act No. 11017, Aug. 4, 201)

[1] Supreme Court Decision 2010Da30782 Decided September 30, 2010 (Gong2010Ha, 1987)

Plaintiff 1 and six others (Law Firm Kim & Lee LLC, Attorneys Long-si et al., Counsel for the plaintiff-appellant)

Seodaemun-gu Seoul Metropolitan Government (Attorney Park Jung-sik, Counsel for the defendant-appellant)

Seoul Western District Court Decision 2017Na40669 decided April 19, 2018

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

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

1. A. Article 91(1) of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Act No. 11017, Aug. 4, 201; hereinafter “former Public Works Act”) provides, “Where all or part of the acquired land becomes unnecessary due to the discontinuation, alteration or other causes of the relevant project within 10 years from the date of acquisition of land through consultation or expropriation, the landowner at the time of the date of acquisition or his/her general successor may repurchase the land by paying to the project operator an amount equivalent to the compensation paid for the relevant land, within one year from the date all or part of the relevant land becomes unnecessary, or within 10 years from the date of acquisition, or within 10 years from the date of acquisition.” The term “the relevant project” as stipulated in the said provision refers to a specific specific case where the whole or part of the acquired land becomes unnecessary for the purpose of acquisition through consultation or expropriation, and the objective purpose and scope of the relevant project should be determined based on the objective purpose and purpose of consultation and determination of 200.

B. Meanwhile, Article 91(6) of the former Public Works Act, which provides for “the conversion of public works” in which the exercise of the right of repurchase is restricted, was amended and implemented by Act No. 10239 on April 5, 2010, stipulated “the conversion of public works” under Article 4 Subparag. 5 of the former Public Works Act as “the construction of housing or the construction of housing sites for lease or transfer purposes by the State, local government, government-invested institution, local public enterprise, or a person designated by the State or local government.”

2. The reasoning of the lower judgment and the record reveal the following facts.

A. The owner, Plaintiff 2, Plaintiff 3, deceased Nonparty 1 (Plaintiff 4, Plaintiff 5, and Plaintiff 6 were jointly inherited) and deceased Nonparty 2 (Plaintiff 2 and Plaintiff 3 jointly inherited, and Plaintiff 4, Plaintiff 5, and Plaintiff 6 were the co-owner of Seodaemun-gu Seoul Metropolitan Government ( Address 2 omitted), and Plaintiff 7 were the co-owner of approximately 46.3 square meters (hereinafter “instant land”) and approximately 36.4 square meters (hereinafter “instant land”).

B. On May 20, 2002, the head of the defendant head of the Gu publicly notified the authorization of the implementation plan for the project of urban planning facilities (road) by the Seodaemun-gu Notification No. 2002-41, and the defendant constructed the road after acquiring the third land included in the above road site by consultation on June 17, 2003.

C. On June 25, 2004, the Defendant head of the Gu announced the implementation plan of the instant parking lot project as of May 12, 2005 under the Seodaemun-gu Notice No. 2004-57 (hereinafter “instant parking lot project”) for the purpose of providing parking convenience and improving the residential environment by resolving the parking shortage caused by the multi-household residential concentration area.

D. The Defendant acquired the instant land No. 1 and the instant land No. 2 included in the instant parking lot business site from September 2005 to October 2005, respectively, and changed the instant land to the said parking lot business site. On October 31, 2006, each of the instant land, etc., set up a public parking lot No. 1 (hereinafter “instant parking lot”).

E. On October 19, 2006, the Mayor of Seoul Special Metropolitan City (No. 2006-357 of the Seoul Special Metropolitan City Notice No. 2006-357 of Oct. 19, 2006, designated the Seodaemun-gu Seoul Special Metropolitan City (No. 4 omitted), including each of the instant land, as an urban renewal acceleration district, and on February 5, 2008, publicly announced the alteration designation of urban renewal acceleration districts and urban renewal acceleration plans (hereinafter “instant urban renewal acceleration plans”) including the details of the closure of the instant parking lot as to the relevant area including each of the instant land.

F. On March 31, 2009, the head of the Defendant publicly notified the authorization for the implementation of the Housing Redevelopment Improvement Project (hereinafter “instant redevelopment project”) in the North Asia-3 Housing Redevelopment Project (hereinafter “instant redevelopment project”) under Article 2009-23 of the Seodaemun-gu Public Notice on March 31, 2009, and publicly notified on March 3, 2010 the authorization for the management and disposal of the North Asia-1-3 Renewal Promotion Zone (hereinafter “the instant management and disposal plan”).

G. Meanwhile, the Plaintiffs asserted that the Housing Redevelopment Improvement Project Association of North Asia-3, after March 3, 2010 publicly notified of the instant administrative disposition plan, removed the instant parking lot around the end of 2013 in the course of promoting the instant redevelopment project (a written complaint filed on September 11, 2017 and the briefs filed on June 14, 2017).

3. A. Examining the above facts in light of the legal principles as seen earlier, even if the urban renewal acceleration plan of this case, including the contents to abolish the instant parking lot, was publicly announced or the authorization to implement the redevelopment project of this case as to each of the instant land, etc. was publicly announced, it is difficult to conclude that each of the instant land becomes unnecessary objectively for the instant parking lot project only by the public announcement of the urban renewal acceleration plan of this case or the public announcement of the authorization to implement the redevelopment project of this case, since the utility as a parking lot or the public interest needs not have been practically extinguished while the instant parking lot is still used for the previous parking lot. Furthermore, the instant redevelopment project of this case is a public project under subparagraph 5 of Article 4 of the former Public Works Act, which is a “project for constructing houses or constructing housing sites conducted by a person designated by a local government for the purpose of lease or transfer,” and there is room for the Plaintiffs to exercise a repurchase right as to each of the instant land by applying Article 91(6) of the former Public Works Act amended and enforced on April 5, 2010.

Therefore, the lower court should have examined and determined at any time when each of the instant land becomes unnecessary for the instant parking lot business due to the removal of the said parking lot after having decided to abolish the instant parking lot as above, and examined the application of Article 91(6) of the former Public Works Act, which was amended and enforced April 5, 2010, with regard to the exercise of the Plaintiffs’ repurchase rights.

B. Nevertheless, the lower court, on February 5, 2008, maintained the first instance judgment accepting the Plaintiffs’ claim on the premise that each of the instant land became unnecessary for the instant parking lot business, and around that time, the Plaintiffs could exercise a redemptive right to each of the instant land. In so doing, the lower court erred by misapprehending the legal doctrine on Article 91(1) of the former Public Works Act, which led to the failure to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)