(영문) 서울행정법원 2009.4.3.선고 2008구합6219 판결

2. On May 28, 2007, the Defendant confirmed that the part concerning donation after purchasing private land in the notice of additional conditions for project implementation authorization given to the Plaintiff is null and void.

3. The plaintiff's remaining claims are dismissed.

4. Of the litigation costs, 30% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

Purport of claim

1. Disposition by the defendant on December 26, 2007 against the plaintiff 1.78 billion won for land compensation costs of December 26, 2007.

on January 3, 2008 with respect to the disposition of imposition of KRW 82 billion of the land compensation cost on January 3, 2008

Each disposition shall be revoked, and each of the above dispositions shall be confirmed to be null and void in preliminary case.

2. The defendant on May 28, 2007 that there is no notification disposition of additional conditions for project implementation authorization given to the plaintiff on May 28, 2007

shall confirm that it is invalid or invalid.

Reasons

1. Details of the disposition;

A. A rearrangement project set up for the purpose of implementing the housing reconstruction project (hereinafter “instant project”) of the ○○○ ○○ ○○ improvement zone (○○○○, and 34 parcels of land in Gangseo-gu, Gangseo-gu, Seoul, and 121, 7m of square meters) (hereinafter “instant project”).

As a partnership, the authorization for the establishment of September 25, 2002 from the defendant, the authorization for the implementation of the project on September 24, 2004 (hereinafter referred to as the "authorization for the implementation of the project"), and the authorization for the implementation of the project in this case has been received respectively on March 11, 2005.

B. On May 28, 2007, the Defendant notified the Plaintiff that “Before filing an application for the authorization for the completion of the project in this case, the part of the square meters square meters (hereinafter “the instant site”) of the instant project is extended, completely packed and packed in the same way as the relevant drawings already submitted, and that “Before the filing of the application for the authorization for the completion of the project in this case, the Defendant added the conditions of internal use to the Defendant by officially using the relevant land by purchasing the relevant land (hereinafter “instant disposition”).

C. On December 26, 2007, the Defendant notified the Plaintiff that the Plaintiff deposit KRW 1,78,200,000,000,000 as land compensation expenses for the implementation of the urban planning project, in total, 2,000 square meters of the instant site, including a total of 2,279 square meters of OO road, and 1,272.36 square meters of the instant site among the total of 2,2,000 square meters of OO road, which is a part of the boundary road between the O0 improvement zone and the O00,000,000 won, in total, KRW 1.78,50,000,000,000,000,000,000 won and KRW 8.5,50,000,000,000,000,000 won.

【Unsatched Facts of Gap’s 1-1, 2, 3, Gap’s 2, 3, and 4, Eul’s 14, Eul’s 4-1, Eul’s 6, 7, Eul’s 12, 13, Eul’s 17, 18, 19 (each number number is issued)

2. Whether the part concerning the instant notice of deposit among the instant lawsuit is lawful

A. The plaintiff's assertion that the notification of the deposit of this case was revoked or invalidated as an appeal litigation, and the defendant did not constitute an administrative disposition (powerly factual act) since the notification of this case was made according to the plaintiff's intent, and therefore, the part concerning the notification of the deposit of this case among the lawsuit of this case is unlawful.

(b) Facts of recognition;

1) On May 28, 2007, the Defendant notified the Plaintiff of the instant disposition, and additionally stated that “The Plaintiff shall cooperate with the Plaintiff to ensure that the additional conditions do not result in disadvantageous treatment due to failure to perform before the completion of the provisional application.”

2) On October 22, 2007, the Plaintiff notified on November 20, 20 of the same year, “ ○○○○○○ apartment zone with the width of 12 meters used between the parties and ○○○○○○○○○○, which was formed and used at the time of designation of the ○○ apartment zone, shall be carried out at her home, of the Gangseo-gu-gu-gu ownership adjustment, as the land owned by the Gangseo-gu-gu, which was in use until now, was implemented at her home, as the response to the instant disposition. In addition, the Plaintiff notified the Plaintiff of the purport that it is difficult for us to carry out the management of personal ownership adjustment in relation to the conditions requested by her home office. In addition, there was an additional public defense between the Plaintiff and the Defendant in writing.

3) Meanwhile, upon completion of reconstruction apartment, the Plaintiff distributed a written guidance to move into a road to its members from December 26, 2007, and the Defendant did not go through an inspection of the use of apartment. On December 18, 2007, the issue related to additional conditions for the authorization to implement the project on the boundary of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○’s purchase of an apartment project. As such, the Plaintiff notified the owner of the right to claim ownership during several years.

4) The Defendant accepted the Plaintiff’s above opinion and carried out the purchase of private land, which is part of ○○○ road, through an urban community development project. The compensation for land required for this project shall be appropriated with the Plaintiff’s deposit, and as seen earlier, notified each of the instant deposits.

5) The Plaintiff paid each of the instant deposits on December 26, 2007 and January 3, 2008. The Defendant permitted the use before completion of the apartment on December 27, 2007, and approved the completion of the apartment on January 8, 2008.

【Unsatched Facts of Gap evidence 11-1, Gap evidence 12, 13, and 14, Eul evidence 12-7, Eul evidence 14, Eul evidence 14, Eul evidence 15, 16, Eul evidence 19, Eul evidence 20-1, 20, and Eul evidence 21

C. Determination

1) An administrative disposition, which is the object of an appeal litigation, refers to an act of an administrative agency’s public law that directly affects the rights and obligations of the people by ordering the establishment of rights or the burden of obligations, or giving rise to other legal effects with respect to a specific matter, and an act that does not directly affect the legal status of the counter-party or other related persons does not constitute an administrative disposition subject to appeal (see Supreme Court Decision 2007Du10198, Nov. 15, 2007, etc.).

2) In light of the above legal principles, the notice of deposit of this case was not unilaterally performed by the Defendant, but was made pursuant to an agreement between the Plaintiff and the Defendant that the Plaintiff performed the urban planning project and the Plaintiff that the Plaintiff would bear the land compensation expenses. In addition, there is no legal basis provision or validity, and no subsequent disposition following the instant disposition may be deemed as a result of the instant disposition, even if there was a concern that the completion of apartment construction would be delayed if the Plaintiff did not respond thereto, and thus, each of the instant notice of deposit of this case may not be deemed an exercise of public authority directly affecting the legal status of the Plaintiff, such as the Plaintiff’s rights and obligations.

3) Therefore, each of the instant reports is not an administrative disposition that is subject to an appeal litigation. Therefore, the part regarding each of the instant reports among the instant lawsuits is unlawful, not an administrative disposition, as an appeal litigation filed against a person who conducts an administrative action, rather than an administrative disposition.

3. Whether the disposition of this case is nonexistent or invalidated

A. Summary of the plaintiff's assertion

The plaintiff asserts that the disposition of this case is null and void as follows.

1) Although the additional conditions of authorization for project implementation should only be modified in the form of changing the content of authorization for project implementation, the Defendant added the conditions to the authorization for project implementation of the instant case without any such form.

2) The instant site is located outside the ○○ improvement zone (i.e., the part on which a road is constructed according to the Plaintiff’s project implementation authorization) as its current status, and on a different premise, the instant disposition demanding the Plaintiff to purchase the private land out of the instant site does not have any legal basis.

3) The Plaintiff’s written authorization for project implementation or written authorization for management and disposal, which newly installs a road 9,660 and gratuitously reverts to the Defendant. It merely means that the Plaintiff set up the road facilities, such as the road packing, and does not claim the expenses therefor. It does not mean that the Plaintiff purchases the entire square meter of eight meters on September 9, 660 and belongs to the Defendant. The road that the Plaintiff would gratuitously revert to the Defendant shall be 5,845.3 meters, excluding the instant land, among the 9,660 square meters of the road that the Plaintiff would gratuitously revert to the Defendant. Thus, the instant disposition is without any legal basis.

(b) Related statutes;

[The Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the "Do Government Act")]

Article 2 (Definitions of Terms) The definitions of terms used in this Act shall be as follows:

4. The term "infrastructure for maintenance" means roads, water supply and sewerage systems, parks, public parking lots, utility tunnels (general omitted), and other poles;

The term "gas supply facilities, such as gas, etc., prescribed by Presidential Decree" means facilities necessary for private life.

Article 64 (Installation, etc. of Rearrangement Basis Facilities)

(1) A project implementer shall install infrastructure for rearrangement in an improvement zone after consultation with the head of the competent local government.

section 23(3).

Article 65 (Reversion of Rearrangement Basis Facilities, Land, etc.)

(1) The head of a Si/Gun/Gu, housing construction, etc. shall newly install or install infrastructure for rearrangement by implementing a rearrangement project.

State property or land where infrastructure to replace existing fundamental infrastructure is built;

Notwithstanding the provisions of the Disaster Prevention and Prevention Act, the existing infrastructure for rearrangement shall gratuitously revert to the project operator.

c) Newly installed maintenance infrastructure shall be free of charge to the State or a local government to manage the infrastructure.

shall be reverted to the Corporation.

(2) The head of a Si/Gun or a project implementer, other than a housing project, newly established by implementing a rearrangement project.

Infrastructure for rearrangement shall gratuitously revert to the State or a local government to manage such infrastructure, and its maintenance;

The maintenance basis under the ownership of the State or a local government whose use is ceased due to the implementation of the project;

Nor shall implement a project within the extent of the amount equivalent to the installation costs of the newly installed infrastructure by him/her.

shall be transferred free of charge to any person.

(4) The project implementer shall revert to the management authority under paragraphs (1) and (2) for infrastructure and projects for rearrangement.

The kind and details of the property to be reverted or transferred to the implementer shall be the same to the management agency before the completion of the rearrangement project.

(2) The maintenance infrastructure concerned shall be approved by the management agency after the completion of the maintenance project;

the State or a local government, or any project operator shall be vested or transferred at the time of such

shall be deemed to have been made.

1) The project of this case is part of the master plan for the development of the ○○ apartment zone publicly notified by Seoul Special Metropolitan City as a public notice No. 200-36. According to the above master plan and the report of the master development plan, according to the above master plan and the report of the master development plan, the project of this case is developed by dividing the ○○ apartment zone into the 1st improvement zone (106, 198, 7m) and the 2nd improvement zone (121, 911, 7m) and the 3nd improvement zone (139, 753mm) and the 3rd improvement zone (139, 753mm) and the public facilities, such as roads, which are newly installed within the district, shall be reverted to the administrative agency to manage the relevant facilities without compensation.

2) The current status of 12 meters in width established in accordance with the ○○ apartment zone development master plan in 1975, which passes through the ○○ improvement zone and the adjacent ○○ improvement zone. According to the above master plan and the development master plan, the part of 6,833.9 square meters in size, which constitutes the boundary between ○○ improvement zone and ○○ improvement zone, shall be included in the ○○ improvement zone, and the part of 3,815 square meters in size (the site of this case), which consists of 4,00 square meters in size, 3,018, in the ○○ improvement zone.

3) According to the project implementation authorization of this case, in order to provide a building site for an apartment in the ○○ improvement zone, the Defendant disuses the 12 and 155 square meters of the road in the existing apartment complex. The Plaintiff installed a road in the 9 and 660 square meters of the 8m of the 660 square meters (hereinafter collectively referred to as the "road construction site of this case") to vest in the Defendant without compensation. Of the newly constructed site of this case, the Plaintiff extended the road surrounding the ○○○○○, including ○○, etc. in the 00 improvement zone, and the area of the newly installed part constitutes the area included in the ○○ improvement zone among the existing boundary improvement zones between the ○○ improvement zone and the 000 square meters of the 00 improvement zone.

4) On February 25, 2005, the Plaintiff: (a) formulated a management and disposition plan with the content that disuse and install a road; and (b) the management and disposition plan with the content that the managing agency of the newly constructed road as the Defendant was designated as the Defendant; (c) on March 11, 2005, the Defendant approved the management and disposition plan with the approval of the management and disposition plan; (d) on the written authorization of the installation and disposition plan, the costs of installing a newly built road was assessed as KRW 332,133,860.

5) On April 25, 2005, the Defendant sold the road and park within the apartment complex, which is closed due to the implementation of the rearrangement project, to the Plaintiff. The Plaintiff newly installed the expanded road and park in this case and let the Defendant gratuitously revert to the Defendant. However, the Plaintiff concluded a contract for the transfer, acquisition, and sale (hereinafter referred to as the “transfer contract of this case”) of the expanded road of this case as well as the installation cost of the park, which are publicly notified in accordance with the purchase price and the management and disposal plan, with the contents of settling the purchase price and the installation cost of the park with the above sale price. However, there was no agreement as to the purchase of the site of this case and the installation cost of the road, which is an existing road at the time.

【Reasons for Recognition】 Each entry of Gap evidence 2, Gap evidence 4 through 8 (including each number), Gap evidence 15-1, 2, Eul evidence 1 through 6 (including each number), and the purport of the whole pleadings

D. Determination

1) Determination on the expansion and packing of the instant site among the instant disposition

In light of the contents of the project implementation authorization as seen earlier and the contents of the management and disposal authorization, the expansion and packing part of the site of this case among the dispositions of this case is confirmed and notified of the previous project implementation authorization for the re-fiting of the existing road due to the construction of the extension road of this case, and this part of the disposition cannot be deemed non-existent

2) Determination on the part concerning the donation of private land purchase among the instant disposition

A) Legal nature of Article 65(2) of the Do governor Act

The former part of Article 65(2) of the Do Government Act provides for the gratuitous reversion of the fundamental infrastructure to the State or local governments of the newly constructed fundamental infrastructure. This is not the essence of the deprivation and restriction of the project implementer's property rights, but it is clear that the ownership of public facilities, etc. in the project district is a mandatory provision to uniformly determine the status of the project implementer in the future by prescribing the ownership of public facilities, etc. in the project district. Accordingly, the latter part of Article 65(2) provides for the free transfer of the fundamental infrastructure, the purpose of which is to preserve the private property rights of the project implementer to a reasonable extent or to maintain the cost-bearing cost required for the installation of the fundamental infrastructure within the reasonable extent. In addition, Article 65(4) of the Do Government Administration Act provides for the free transfer of the fundamental infrastructure, which is to be newly constructed or abolished, within the scope of the installation cost of each newly constructed or abolished basic infrastructure, in light of the purpose of the latter part of Article 65(2) of the Do Government Administration Act and the purport of the relevant provisions to be newly established and amended within the 2).

B) Whether the instant site constitutes an infrastructure for maintenance and improvement to be newly installed

As seen earlier, the Plaintiff new written authorization for project implementation and written authorization for management and disposal plan.

In light of the above facts, the size of the road among infrastructure for maintenance and improvement is prescribed as 9, 660, 8, and the above area is included in the area of the site of this case. However, it is reasonable to view that the following facts are not included in the case where the existing infrastructure for maintenance and improvement is continuously used without discontinuance of its use. The site of this case is the site of the existing infrastructure for maintenance and improvement, which is the site of this case, continuously used as the road site before and after the implementation of the maintenance and improvement project of this case. ② The appraised value of the land of this case for the purpose of calculating the purchase price of private infrastructure of this case is not included in the sale cost of this case, and the costs of new installation and disposal cost of the road of this case are not included in the purchase cost of the land of this case within the scope of 32,133,860, and the purchase cost of the new site of this case, which can be included in the sale cost of the land of this case.

C) The legal nature of the part concerning the donation of private land among the instant disposition, and whether it is serious and clear of the defect

As seen earlier, this part of the instant disposition provides that the Plaintiff shall purchase private land in this case and contribute to the Plaintiff, and the Defendant has the form of imposing an order to perform a certain duty of act in addition to the instant disposition to approve the project implementation of the instant administrative act, which is the main administrative act against the Plaintiff. However, as long as the instant land was not a new infrastructure for maintenance and improvement, the Defendant has no legal basis for taking the said disposition, as long as the instant land was not a new infrastructure for construction of the project implementation plan and the management and disposition plan was approved, the defect of the disposition in this part is significant and apparent.

C) Sub-determination

Therefore, the part concerning the acceptance of private land purchase among the disposition of this case is null and void because there is a serious law.

4. Conclusion

Therefore, the part concerning the notice of deposit of this case among the lawsuit of this case is unlawful, and thus, the plaintiff's claim seeking confirmation of invalidity of the part concerning donation after the purchase of private land during the disposition of this case is accepted as reasonable, and the remaining claim of the plaintiff is dismissed as it is so decided as per Disposition.