The legislative intent of the latter part of Article 65 (2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents and the meaning of "infrastructure newly installed by him" in the above provision

Article 65 (2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions

Distribution 3 Industrial Complex Rebuilding Project Association (Attorneys Lee Im-soo et al., Counsel for the defendant-appellant)

The head of Seocho-gu Seoul Metropolitan Government (Attorney Go Young-deok, Counsel for defendant-appellant)

Seoul High Court Decision 2005Nu24133 decided June 1, 2006

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

Article 65(2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents provides that any infrastructure for rearrangement newly installed by a project implementer, other than the head of a Si/Gun or a housing project, in the course of implementing an improvement project, shall gratuitously vest in the State or a local government to manage such infrastructure (hereinafter referred to as “former Regulations”), and any infrastructure for rearrangement owned by the State or a local government, the use of which is ceased due to the implementation of an improvement project, shall be transferred to the project implementer without compensation to the extent equivalent to the installation cost of the newly installed infrastructure (hereinafter referred to as “former Regulations”). In particular, the latter part of the above provision provides that the project implementer shall gratuitously transfer the infrastructure for rearrangement owned by the State or a local government, the use of which is ceased to exist due to the implementation of an improvement project to the project implementer within the extent equivalent to the installation cost of the newly installed infrastructure, taking into account the property loss of the project implementer caused by the implementation of the improvement project without compensation to the project implementer.

In light of the legislative intent of the latter part of the above provision and the fact that the same term in the same law should be equally interpreted and applied to the project implementer, barring special circumstances, such as where there are other provisions in the law, etc., the term “infrastructure newly installed” under the latter part of the latter part of the above provision refers to the “infrastructure newly installed by the project implementer in the course of implementing a rearrangement project” under the former part provision, and the two should be deemed the same. In other words, there is no reason to interpret it as excluding the infrastructure subject to the installation obligation as a matter of course from among the infrastructure newly installed by the project implementer under the relevant law.

Nevertheless, solely on the grounds stated in its reasoning, the lower court construed that the “infrastructure newly installed by a private project operator” under the latter part’s provision does not include any infrastructure for maintenance, in which the private project operator is obligated to install as a matter of course in accordance with the relevant laws, and on such premise, determined that the instant road where the Plaintiff newly installed is obligated to install it to the Plaintiff under the relevant laws, and thus, the installation cost does not include the scope of installation cost of the newly installed fundamental infrastructure that can be gratuitously transferred for the purpose of use. In so doing, it erred by misapprehending the legal doctrine

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)