Plaintiff 1 and one other

Seoul Special Metropolitan City and one other (Law Firm Civil Cow, Attorneys Kim Dong-dong et al., Counsel for the plaintiff-appellant)

December 19, 2006

Seoul Central District Court Decision 2004Gahap95462 Delivered on March 21, 2006

1. The defendants' appeal is dismissed.

2. The costs of appeal shall be borne by the Defendants.

1. Purport of claim

The primary purport of the claim: The defendants shall jointly and severally pay to the plaintiff 1 340,891,000 won, 136,349,000 won to the plaintiff 2, and 5% per annum from September 9, 2005 to the service date of the complaint of this case, and 20% per annum from the next day to the day of full payment.

Preliminary Claim 1: The Defendants jointly and severally pay to Plaintiff 1 279,276,893 won, 111,704,720 won to Plaintiff 2, and 5% per annum from September 9, 2003 to the service date of the complaint of this case, and 20% per annum from the next day to the day of full payment.

The Defendants’ preliminary claims: (a) jointly and severally, with respect to the amount of KRW 17,759,709 against Plaintiff 1, and KRW 7,103,50 against Plaintiff 2, the amount of KRW 7,500 from October 29, 2004 to the date of full payment; and (b) from September 9, 2005 to the date of the Plaintiffs’ loss of ownership of each land in the attached list of the first instance judgment; or from September 2005 to the date of the completion of the Defendants’ possession of each land, the amount of KRW 852,165 per month to Plaintiff 1, and KRW 342,847 per month is paid to Plaintiff 2.

2. Purport of appeal

The part of the judgment of the court of first instance against the Defendants shall be revoked, and the plaintiffs' claims corresponding thereto shall be dismissed.

1. Quotation of judgment of the first instance;

The reasoning of this Court is as follows, except for the first instance court's determination as to a defense dispute that Defendant Seoul Special Metropolitan City (hereinafter "Seoul Special Metropolitan City") does not occupy the land as a management agency under the law, and this case is justified (However, since only the Defendants appealed against the judgment of the first instance that accepted the second preliminary claim by the plaintiffs, the scope of the trial in the trial is limited to the second preliminary claim).

2. Supplementary determination on the argument of Seoul Metropolitan Government

A. Determination as to the defense dispute that no Seoul Metropolitan Government participated in the creation of a park

The Seoul Special Metropolitan City argues to the effect that the land in this case was not created by a park according to the procedure stipulated in the National Land Planning and Utilization Act or the former Urban Park Act, etc., and that the Seoul Special Metropolitan City cannot become a management authority under the Act.

Therefore, as seen earlier, the Park Building Plan was decided on December 23, 1983 by the Construction Division Notification No. 419 of December 23, 1983 with respect to the instant land, and there was a change in the Park Building Plan several times thereafter, and it is recognized that there was no authorization of the implementation plan for the development project or the implementation plan for the development project until now.

However, as examined, the defendant Gwanak-gu (hereinafter "Gwanak-gu") has already approved the urban redevelopment project by attaching the conditions according to the result of consultation with the Seoul Special Metropolitan City in the process of creating a park on the land of this case through the implementation of the urban redevelopment project, and the facility records also have a park be constructed in accordance with the Seoul Special Metropolitan City's guidelines. As a result, the land of this case is restored the function as a park in the site where the former unauthorized buildings were scattered, is currently being used as the function as a park at present, and as the Seoul Special Metropolitan City is the owner of the land of this case, the urban park including the land of this case can complete the park creation at a single autonomous district level. In addition, with regard to some areas located in Dongjak-gu, Seoul Special Metropolitan City, which are currently promoting compensation after the approval of the implementation plan, taking into account the fact that the Seoul Special Metropolitan City is an institution ultimately responsible for the land of this case claimed by the defendants as long-term non-permanent execution facilities, and there is no reason to deem that the above paragraph actually implemented the park development project through the urban redevelopment project of this case.

B. Judgment on a dispute that delegated the establishment and management of a park to Gwanak-gu

In addition, the Seoul Special Metropolitan City has delegated the management of the upperly neighboring park including the land in this case to the autonomous Gu, so the management authorities under the law also claim to the purport that it is Gwanak-gu.

Therefore, according to the evidence No. 7, although it is recognized that "Seoul Special Metropolitan City Ordinance on Delegation of Administrative Affairs" delegates the construction, management, etc. of urban parks to the head of the Gu, it is delegated to the head of the Gu in accordance with the language and purpose of delegation, since the delegated head of the Gu delegated the specific execution of the autonomous affairs of Seoul Special Metropolitan City to the head of the Gu, it is a so-called "agency delegation" delegated to the head of the Gu in accordance with the purport of the text and delegation, it cannot be said that the subject of the administrative affairs belonging to the Seoul Special Metropolitan City has changed. Therefore, the above dispute of the Seoul Special Metropolitan City is not reasonable (or, if the head of the Gwanak-gu Office is a management agency in this circumstance, the Gwanak-gu also has occupied and used the land in the process of management, such as the use, maintenance, repair, etc. of the land in question as a park, and therefore, it shall be deemed that there is a benefit therefrom. Therefore, it

3. Conclusion

Therefore, the appeal by the defendants is without merit, and all of them are dismissed.

Judges Lee In-bok (Presiding Judge)