Whether Articles 65(1) and 99 of the National Land Planning and Utilization Act concerning gratuitous reversion of public facilities resulting from development activities applies to cases where a project implementer, who is an administrative agency, installs public facilities and occupies and uses them without acquiring the land necessary for newly installing public facilities due to an urban or Gun planning facility project (negative), and whether the same legal doctrine applies to cases where the land necessary for the installation of public facilities is a state-owned land (affirmative)

Article 65(1) of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) provides that “Where an administrative agency which has obtained permission for development acts installs new public facilities or public facilities replacing the existing public facilities, the newly installed public facilities shall gratuitously revert to the management agency which will manage such facilities, and the existing public facilities shall gratuitously revert to the person who has obtained permission for development activities.” Article 99 of the National Land Planning and Utilization Act shall apply mutatis mutandis to the gratuitous reversion of public facilities resulting from development activities. In cases of installing new public facilities or public facilities replacing the existing public facilities according to an urban/Gun planning facility project, the aforementioned

The above provisions of the National Land Planning and Utilization Act shall apply in cases where a project implementer, an administrative agency, acquires land necessary for newly installed public facilities according to a contract under private law or public law procedure and installs the public facilities and completes the project. In such cases, whether the management agency of the public facilities newly installed is consistent with the former management agency of the public facilities does not

However, the above provisions of the National Land Planning Act do not apply to cases where a project operator installs public facilities and occupies and uses them without acquiring the land necessary for the installation of public facilities by the project operator. This interpretation also applies to cases where the land necessary for the installation of public facilities is State-owned land.

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

Supreme Court Decision 2011Da103069 Decided March 15, 2012 (Gong2014Ha, 1599) Supreme Court Decision 2012Du23358 Decided July 10, 2014

Namyang-si (Law Firm Barun Law LLC, Attorneys Kim Jung-soo et al., Counsel for the defendant-appellant)

Korea Rail Network Authority (Law Firm One, Attorneys Gu-hun et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2017Nu33710 decided July 14, 2017

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Requirements for gratuitous reversion of public facilities (Ground of appeal No. 1)

A. Article 65(1) of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) provides that “Where an administrative agency which has obtained permission for development acts installs new public facilities or public facilities replacing existing public facilities, the newly installed public facilities shall gratuitously revert to the management agency which will manage such facilities, and the existing public facilities shall gratuitously revert to the person who has obtained permission for development activities.” Article 99 of the National Land Planning and Utilization Act shall apply mutatis mutandis to the gratuitous reversion of public facilities resulting from development activities. In cases of installing new public facilities or public facilities replacing existing public facilities, the aforementioned provisions shall apply mutatis mutandis.

The above provisions of the National Land Planning and Utilization Act (hereinafter “instant provisions”) shall apply in cases where a project implementer, who is an administrative agency, acquires land necessary for newly installed public facilities according to a contract under private law or public law, and installs and completes a project. In such cases, whether the existing management agency for public facilities and the management agency for public facilities newly installed are the same or not.

However, the instant provision does not apply in cases where a project implementer installs public facilities without acquiring land necessary for public facilities in a lawful manner and the State or a local government occupies and uses them. Such interpretation is likewise applicable to cases where land necessary for the installation of public facilities is State-owned land (see, e.g., Supreme Court Decisions 2011Da103069, Mar. 15, 201; 2012Du23358, Jul. 10, 2014).

B. The lower court denied the application of the instant provision on the grounds that the Plaintiff cannot be deemed to have lawfully acquired each of the instant land, which is the relevant site, in accordance with a contract under private law or public law for the implementation of the instant project, and determined that each of the instant land, which is the previous public facilities, did not belong to the Plaintiff.

C. Examining the above legal principles and records, the lower court’s conclusion that the provision of this case does not apply to the lower court’s judgment inasmuch as the Plaintiff had installed new public facilities above the Plaintiff without lawfully acquiring each of the instant land. In so determining, the lower court did not err by misapprehending the legal doctrine on gratuitous reversion of public facilities under the provision of this case, contrary to what is alleged in the grounds of appeal.

2. Whether to exempt occupancy or use fees (ground of appeal No. 2)

A. When a Special Metropolitan City Mayor, a Metropolitan City Mayor, a Special Self-Governing City Mayor, a Special Self-Governing Province Governor, or the head of a Si/Gun intends to grant permission for development including matters concerning attribution of public facilities pursuant to Article 65(1) of the National Land Planning Act, he/she shall hear in advance the opinion of the management agency to which the relevant public facilities belong (Article 65(3) of the National Land Planning Act). In such cases, where a management agency’s opinion and permission for development has been granted, a person who has obtained permission for development shall be deemed to have obtained approval, permission, etc. pursuant to the relevant Acts concerning the occupation and use of the public facilities included in such permission, and in such cases, it shall be deemed to have been exempted from occupancy fees or user fees (Article 65(4)

B. The lower court rejected the Plaintiff’s assertion that the Plaintiff is exempt from occupancy or use fees for each of the instant land, on the grounds that there is insufficient evidence to prove that the Plaintiff implemented the procedures under Article 65(3) and (4) of the National Land Planning and Utilization Act, including seeking the Defendant’s opinion in advance prior to the notice of authorization for the instant project implementation

C. Examining the foregoing legal provisions and records in light of the foregoing, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

3. Conclusion

The Plaintiff’s appeal is dismissed as it is without merit, 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.

Justices Lee Dong-won (Presiding Justice)