Whether the former part of Article 66(6) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, which provides for the evaluation date of land to be sold first for the purpose of a rearrangement project, provides for the evaluation method to be assessed based

In light of the language and text of Article 66(4) and (6) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the former part of Article 66(6) does not appear to stipulate the method of assessment as to the base date of appraisal of land to be sold by a private contract under the provisions of Article 6(4) and the method of assessment thereof. Even if considering the order, structure, and purpose of special exception for disposal of State and public property, the above provision takes into account the fact that an urban improvement project is implemented for a relatively long period of time, it is deemed that even if a private contract is concluded at any time to prevent the difference in purchase burden according to the specific time when a private contract is concluded, the said value shall be assessed as the base date of the announcement of authorization for the implementation of the project. It is difficult to interpret

Article 66 of the Act on the Maintenance and Improvement of Urban Areas

Jung-dong District Housing Development and Improvement Project Association (Law Firm Cheong-do et al., Counsel for the plaintiff-appellant)

Korea

Busan High Court Decision 2009Na4176 decided August 13, 2009

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

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

1. According to the reasoning of the lower judgment, the lower court determined that the former part of Article 66(6) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Areas and Dwelling Conditions for Residents”) provides that the assessment of state-owned and public land shall be conducted on the basis of the date when authorization for project implementation is given. The latter part of the main text provides that the sale price in a residential environment improvement project shall be 80/100 of the above appraised amount in the case of a residential environment improvement project. Considering the literary interpretation of the above main provision, Article 66(6) of the Act, following Article 66(4) of the Act, and the legislative purpose of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the former part of the same provision is not merely an assessment of state-owned and public land, but also an assessment of the sale price of state-owned and public land at the time of sale in violation of the former part of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, and its purport should be unreasonable and reasonable to prevent the sale price of state-owned and public land from being sold.

2. However, we cannot accept the judgment of the court below.

Article 66 (4) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions (hereinafter “Urban Areas and Dwelling Conditions”) provides, “The State or public property within the rearrangement zone may be sold or leased by a free contract prior to any other person, notwithstanding the State or public property management plan or public property management plan under the provisions of Article 9 of the State Property Act or Article 77 of the Local Finance Act, and the method of contract under the provisions of Article 43 of the State Property Act and Article 61 of the Local Finance Act,” and Article 61 (6) of the Act provides, “The assessment of the State or public property first sold for the purpose of rearrangement project under the provisions of paragraph (4) shall be based on the date the authorization for project implementation is publicly notified, and the sale price in the residential environment improvement project shall be 80/100 of the appraised amount in the case of the State or public property which has not been concluded within three years from the date the authorization for project implementation is publicly notified.” In light of the language and text of the above provision, even if the appraisal method does not necessarily vary from the date of a private contract to be implemented.

Nevertheless, on the premise that the former part of Article 66(6) of the Act on the Maintenance and Improvement of Urban Areas provides that state-owned and public land shall be evaluated based on the current status as of the date of public announcement of project implementation authorization, the court below determined that the sales contract of this case was in violation of the above provision on the ground that it was concluded based on the result of appraisal conducted based on the site to be used in the future, not on the current status of use as of the date of public announcement of project implementation authorization. In so doing, the court below erred by misapprehending the legal principles on the scope of application under the former part

3. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)