Whether Article 65 (1) of the National Land Planning and Utilization Act, which applies mutatis mutandis by Article 99 of the same Act, applies to cases where an implementor of an urban planning facility project installs a public facility without lawful acquisition of land necessary for a public facility and the State or a local government occupies or uses it (negative)

Articles 65(1) and 99 of the National Land Planning and Utilization Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Doz., Counsel for plaintiff-appellant)

Hadong-Jak-Jak Jin-Jin-Jak (Attorneys Cho Jae-soo et al., Counsel for the defendant-appellant)

[Defendant-Appellant-Appellee] Hannam Association et al. (Law Firm, Kim & Lee LLC, Attorneys Jeon Byung-hee et al., Counsel for defendant-appellant-appellee)

Seoul High Court Decision 2013Na2008968 decided August 22, 2013

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

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

1. As to the grounds of appeal by the Gangnam-gu Association of Korea (hereinafter referred to as the “Defendant church”), the Nonparty, and the Songpa-gu Agricultural Cooperative

According to the reasoning of the judgment below, the court below determined that the sales contract between the plaintiff, defendant church, and the non-party regarding the real estate of this case was null and void as a disposal act of the clan properties conducted without a resolution of a legitimate clan general meeting, and it is difficult to recognize that

In light of the relevant legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to ratification of invalid acts, violation of the rules of evidence, incomplete hearing, omission of judgment, etc.

2. As to the ground of appeal by Defendant Young-si

The land listed in paragraph (4) of the attached list of real estate (hereinafter “instant incorporated land”) of the lower judgment is the land incorporated into the land for an urban planning facility project of Yongsan-si, and gratuitously reverted to the Defendant, which is the management authority, pursuant to Articles 99 and 65 of the National Land Planning and Utilization Act. Thus, even if the registration of ownership transfer of the land in the name of the Defendant church and the Nonparty is null and void, the allegation in the Defendant Young-si, which is the first argument in the final appeal of the lower court to the effect that the ownership transfer registration

In addition, according to Article 65 (1) of the National Land Planning and Utilization Act, which applies mutatis mutandis by Article 99 of the same Act, public facilities newly installed by an urban planning facility project shall be reverted to the management agency to manage such facilities without compensation. However, the above provision applies only to cases where a project operator acquires land necessary for newly installed public facilities by implementing an urban planning facility project through a contract under private law or a public law procedure, etc. and installs public facilities and completes the project. It does not apply to cases where a project operator installs public facilities without lawful acquisition of land necessary for public facilities and occupies and uses them by the State or a local government (see Supreme Court Decision 98Da5161, Aug. 22, 2000, etc.).

In light of the above legal principles and records, insofar as there are no other circumstances to deem that the incorporated land of this case was legally acquired under a contract under a private law or public law, it cannot be deemed that the incorporated land of this case was gratuitously reverted to the defendant at the time of allowing the defendant, and thus, the allegation in the grounds of appeal by the defendant at the time of allowing

3. Conclusion

All appeals are 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 Lee Sang-hoon (Presiding Justice)