2015du39484 The revocation of revocation of the imposition of indemnity

Seoul District Housing Redevelopment Project Association

Korea Asset Management Corporation

Seoul High Court Decision 2014Du41970 Decided February 6, 2015

July 26, 2018

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the ground of appeal No. 1, Article 32 (1) 12 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9401 of Jan. 30, 2009; hereinafter referred to as the "former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9401 of Jan. 30, 2009) which regulates improvement projects such as housing redevelopment projects, etc. provides that when the implementer of the housing redevelopment project and the urban environment rearrangement project has obtained authorization for the implementation of the project, he/she shall be deemed to have obtained permission for use or profit under Article 24 of the former State Property Act (hereinafter referred to as the "former State Property Act"). Article 24 of the former State Property Act provides

The key issue of this case is whether each of the instant lands located within the housing redevelopment project zone constitutes administrative property considered to have obtained permission for use or profit under the above provisions.

Examining the record in accordance with the legal principles as seen earlier, the lower court is justifiable to have determined that the Plaintiff, who is the implementer of a housing redevelopment project, is deemed to have obtained permission to use and profit from each of the above land under the former State Property Act by obtaining authorization to implement the instant project, as administrative property falling under a road or children’s park, as an administrative property falling under a road or children’s park. In so doing, the lower court did not err by misapprehending the legal doctrine on Article 32(1)12 of the former Act, thereby misapprehending the legal doctrine on each of the above land.

2. As to the second ground of appeal, a disposition imposing indemnity may not be taken against a person who has a legitimate legal status to use, benefit from, or occupy State property, and the disposition imposing indemnity against such person is null and void (see Supreme Court Decision 2015Du677, Feb. 21, 2017).

The lower court, on the grounds as seen earlier, deemed that the Plaintiff was deemed to have obtained permission to use and profit from each of the instant lands, and determined that the disposition imposing the instant indemnity regarding each of the instant lands is null and void as a whole.

Examining the record in accordance with the aforementioned legal principles, the above determination by the lower court is justifiable. In so doing, it did not err by misapprehending the legal doctrine on partial invalidation.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young

Justices Kim Jae-tae

Chief Justice Cho Jae-hee

Justices Kim Jae-in