Law Firm 16 Housing Redevelopment and Improvement Project Association (Law Firm Han & Yang, Attorney Kim Dong-ho, Counsel for the plaintiff-appellant)

The head of Dongdaemun-gu Seoul Metropolitan Government (Attorney Song-yang, Counsel for defendant-appellant)

November 18, 2016

Seoul Administrative Court Decision 2015Guhap3034 decided January 15, 2016

1. The part of the judgment of the court of first instance against the plaintiff that confirms that it is null and void is revoked.

The Defendant’s imposition of charges for school site amounting to KRW 1,284,948,460 on September 29, 2014 on the Plaintiff is invalid.

2. The plaintiff's remaining appeal is dismissed.

3. The plaintiff shall bear 2/3 of the total litigation costs, and the remainder shall be borne by the defendant.

Of the judgment of the first instance court, the part against the Plaintiff that confirmed invalidation is revoked. The imposition of each school site charge charge amounting to KRW 815,953,990 as of October 31, 2013 and KRW 1,284,948,460 as of September 29, 2014 by the Defendant against the Plaintiff is invalid.

1. Scope of the deliberation of the political party;

At the first instance court, the Plaintiff filed an appeal to nullify the imposition of charges for each school site of KRW 815,953,90 as of October 31, 2013, which the Defendant filed against the Plaintiff on September 21, 2012; KRW 1,714,514,00 as of September 21, 201; ② KRW 429,860,10 as of March 4, 2013; ③ KRW 815,953,90 as of October 31, 2013; ④ ④ 1,284,948,460 as of September 29, 2014; and the court of the first instance dismissed all the Plaintiff’s request. Accordingly, the Plaintiff filed an appeal to nullify the imposition of charges for school site of KRW 3,48,460 as of September 29, 201.

2. Details of the disposition;

The court's explanation on this part is the same as the corresponding part of the reasoning of the judgment of the court of first instance. Thus, this part of the court's explanation is accepted by Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

3. Whether the disposition Nos. 3 and 4 in the instant case is void automatically

A. The plaintiff's assertion

The decision of inconsistency with the Constitution was made after the "Unconformity with the Constitution" became final and conclusive. Since the Disposition No. 4 of this case was made after the "Unconformity with the Constitution of 1 of the Republic of Korea" became final and conclusive after the "Unconformity with the Constitution of 2 of the Republic of Korea, the two dispositions are in violation of the validity of the decision of unconstitutionality, which is a decision of unconstitutionality. Thus, the previous number of households was 3,258 prior to the plaintiff's commencement of the redevelopment project, but the number of households was 2,652 as the project of this case, and the number of households was reduced to 606, and thus, the project of this case is not accompanied by the increase in the number of households, and thus, it cannot be subject to the imposition of school site charges. Even if the previous number of households as alleged by the defendant is considered to have increased by 2,269 households and the number of households is more than 383 households (547 households) by the 1 of this case and 2 of this case, it is subject to the disposition of invalidation against the school.

B. Relevant statutes

The court's explanation on this part is the same as the corresponding part of the reasoning of the judgment of the court of first instance. Thus, this part of the court's explanation is accepted by Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

C. Determination

1) Whether the third disposition of this case is null and void as a matter of course

If the Constitutional Court, after the issuance of an administrative disposition based on the law, decides that the law, which served as the basis for the administrative disposition, is unconstitutional, the administrative disposition becomes identical with the one that taken place without the basis of the law, and thus, it should be apparent as well. However, in order for the defective administrative disposition to be null and void as a matter of course, the defect must be serious and obvious. In general, it cannot be deemed objectively obvious before the Constitutional Court renders a decision of unconstitutionality. Thus, the reason why the law, which served as the basis for the administrative disposition before the Constitutional Court renders a decision of unconstitutionality, violates the Constitution cannot be deemed objectively clear before the Constitutional Court renders a decision of unconstitutionality. Therefore, it is reasonable to deem that the reason for the administrative disposition to be in violation of the Constitution can only be the premise for the lawsuit seeking revocation of the administrative disposition, unless there are special

Based on the above legal principles, the case was examined, and the decision of inconsistency with the Constitution was made on October 31, 2013, which was after the Constitutional Court's previous decision of inconsistency with the Constitution was made on October 31, 2013 as the plaintiff's assertion, and the decision of inconsistency with the Constitution was made on April 24, 2014. Accordingly, the previous decision of inconsistency with the Constitution was made on April 5, 2014. However, since the previous decision of inconsistency with the Constitution was made on "housing reconstruction Project" under Article 2 subparagraph 2 (c) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents among Article 5 (1) 5 of the former Act on the Establishment and Improvement of Residents' Areas and Dwelling Conditions for Residents, it cannot be seen as immediately affecting the legal provisions of this case which are applied to "Housing Redevelopment Project". Therefore, the defendant's subsequent decision of inconsistency with the Constitution cannot be deemed as being made based on the legal provisions of this case which are not consistent with the Constitution.

2) Whether the 4th disposition is null and void as a matter of course

In determining whether a defect is significant and obvious, the purpose, meaning, function, etc. of the relevant law should be examined from a teleological perspective to determine the specificity of the specific case itself (see, e.g., Supreme Court en banc Decision 94Nu4615, Jul. 11, 1995). However, in a case where an administrative agency takes an administrative disposition with respect to a certain legal relation or fact by applying a certain provision of a law, if there is room for dispute over the interpretation of the relevant law because the legal principle is not clearly established, the administrative agency’s erroneous interpretation of the legal relationship or fact does not lead to misconception of the requirement of the administrative disposition, and thus, it cannot be said that the defect is evident (see, e.g., Supreme Court Decisions 2002Da68485, Oct. 15, 2004; 2010Du25107, Oct. 25, 2012). 2014; however, there is no room to see that the pertinent legal principle is 1614.

The decision of inconsistency with the Constitution as to the legal provision of this case as to the legal provision of this case was made by the Constitutional Court, which clearly states that "the part concerning a housing redevelopment project shall not conform to the Constitution," and that "the part concerning a housing redevelopment project shall not be specified in the Constitution," but the part applicable to the decision and the part to be suspended shall be clearly indicated. In other words, the Constitutional Court has clearly stated that "the part concerning the housing redevelopment project, among the houses constructed through a housing redevelopment project, shall be sold in cash to a third party, which shall belong to the existing owner, and as a result, the number of households shall not increase in the number of households, so it is unreasonable to impose school site charges in the absence of the need to secure new school facilities, and therefore, it is unreasonable to impose school site charges in the absence of the principle of inconsistency with the Constitution as to the legal provision of this case, which clearly states that "in the case of the sale of the existing land and buildings to a third party, it shall not be subject to the imposition of school site charges," and it shall not be subject to the decision of inconsistency with the legislative purpose of this case."

On the other hand, regarding the imposition of school site charges for the portion of the project for which the number of households does not increase compared with the existing one. The fact that the number of households after the implementation of the project of this case is 2,652 is no dispute between the parties. However, the Seoul Special Metropolitan City Notice (No. 4) dated June 24, 2010 containing the project implementation authorization (Evidence No. 11) and the alteration of urban renewal acceleration plan, which was submitted by the Plaintiff to the Defendant, and the Seoul Special Metropolitan City Notice (Evidence No. 19) dated November 19, 2015 (Evidence No. 19) which was issued after the issuance of the lawsuit of this case, is indicated as the number of households transferred to the project of this case as 2,269, on the other hand, it is reasonable to conclude that the Defendant’s new order of inconsistency with the Constitution No. 360, Oct. 24, 2007 and the new order of inconsistency with the Constitution No. 25, Oct. 13, 2014.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted within the scope of seeking the confirmation of invalidity of the disposition No. 4, and the remaining claims shall be dismissed as it is without merit. Since the part concerning the claim for confirmation of invalidity of the disposition No. 3 among the judgment of the court of first instance is just in conclusion, the plaintiff's appeal is dismissed, and the part concerning the claim for confirmation of invalidity of the disposition No. 4 is unfair in conclusion, and it is so decided as per Disposition by accepting the plaintiff's appeal and accepting the plaintiff's claim

Judges Kim Heung-ung (Presiding Justice)

Note 1) Constitutional Court Order 2011Hun-Ga32 Decided July 25, 2013

2) Constitutional Court Order 2013Hun-Ga28 Decided April 24, 2014

3) According to each entry in the evidence Nos. 14-16, it is confirmed that a total of 724 A charges for school site charges have already been imposed on the instant first-3 dispositions.