The meaning of "public facilities" subject to gratuitous reversion of public facilities under the former Housing Site Development Promotion Act;

The terms used in each statute shall be individually interpreted in accordance with the legislative purpose and intent of each statute.

Article 25(1) of the former Housing Site Development Promotion Act (amended by Act No. 10764, May 30, 201; hereinafter the same shall apply) provides that Articles 65 and 99 of the National Land Planning and Utilization Act shall apply mutatis mutandis to the reversion of ownership of ownership of a facility installed as a substitute for an existing public facility (excluding facilities prescribed by Presidential Decree, such as parking lots and playgrounds) by the implementer of the housing site development project, and the "implementer who is an administrative agency" shall be deemed the "implementer" under this Act. Article 15(1) of the Enforcement Decree of the Housing Site Development Promotion Act provides that "facilities prescribed by Presidential Decree" under the former part of Article 25(1) of the former Housing Site Development Promotion Act refers to a common cemetery, crematory facility and charnel facility.

Article 65(1) of the former National Land Planning and Utilization Act (amended by Act No. 11922, Jul. 16, 2013; hereinafter “former National Land Planning Act”) provides that where a person who has obtained permission for development activities is an administrative agency, if he/she installs a new public facility or installs a public facility replacing the existing public facility, the newly installed public facility shall gratuitously vest in the management agency to manage the facility, and the existing public facility shall gratuitously vest in the development project implementer.

Article 2 subparag. 13 of the former National Land Planning Act provides that “public facilities” means roads, parks, railroads, waterworks, and other public facilities prescribed by Presidential Decree in order to specify and limit the scope of application of the gratuitous reversion system of new and old public facilities, and Article 4 of the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 28326, Sep. 19, 2017; hereinafter “former Enforcement Decree of the National Land Planning Act”) upon delegation thereof provides that “public facilities prescribed by Presidential Decree” referred to in subparagraph 13 of Article 2 of the former National Land Planning and Utilization Act means harbors, airports, canals, squares, green areas, public vacant land, reservoirs, reservoirs, rivers, fire prevention facilities, fire prevention facilities, erosion control facilities, tide control facilities, sewerage systems, ditches, etc. installed by administrative agencies, parking lots, playgrounds, reservoirs, crematoriums, crematoriums, cemeteries, cemeteriess, charnel facilities (Article 2), and facilities prescribed in Article 2 subparag. 3(c) of the former Enforcement Decree of the National Land Planning and Utilization Act.

As can be seen, comprehensively taking account of the contents and structure of the relevant provisions in order to specifically specify and limit the scope of application of the new and old system of free reversion in the implementation of a housing site development project, the term “public facilities” subject to the new and old system of free reversion in the implementation of the housing site development project shall be deemed to mean the remainder except for parking lots, playgrounds, cemeteries, public cemeteries, crematory facilities, and charnel facilities, which clearly excludes those prescribed under Article 25(1) of the former Housing Site Development Promotion Act and Article 15(1) of the Enforcement Decree of the former Enforcement Decree of the Housing Development Promotion Act from among the public facilities specifically listed under Article 2 subparag. 13 of the former National Land Planning Act and Article 4 of the former Enforcement Decree of the National Land Planning Act. Even if public facilities newly installed in the implementation of the housing site development project fall under the scope of “infrastructure” under Article 2 subparag. 6 of the former National Land Planning Act or “public facilities site” under Article 2 subparag. 2 of the former Enforcement Decree of the National Land Planning Act, the new system of free reversion is not applicable.

Articles 2 subparag. 2 and 25(1) of the former Housing Site Development Promotion Act (Amended by Act No. 10764, May 30, 201); Articles 2 subparag. 6, 13, and 65(1) of the former National Land Planning and Utilization Act (Amended by Act No. 11922, Jul. 16, 2013); Article 15(1) of the Enforcement Decree of the Housing Site Development Promotion Act; Article 4 of the former Enforcement Decree of the National Land Planning and Utilization Act (Amended by Presidential Decree No. 28326, Sept. 19, 2017)

Supreme Court Decision 2007Du6427 Decided October 15, 2007

Korea Land and Housing Corporation (Attorney Ahn Sung-hoon, Counsel for defendant-appellee)

Asan City (Attorney Lee Jae-ia, Counsel for the defendant-appellant)

Daejeon District Court Decision 2018Na103547 Decided January 22, 2019

The judgment of the court below is reversed, and the case is remanded to Daejeon District Court.

The grounds of appeal are examined.

1. The terms used in each statute must be individually interpreted in accordance with the legislative purpose and intent of each statute (see Supreme Court Decision 2007Du6427, Oct. 15, 2007).

Article 25(1) of the former Housing Site Development Promotion Act (amended by Act No. 10764, May 30, 201; hereinafter the same shall apply) provides that where a project implementer newly installs public facilities (excluding facilities prescribed by Presidential Decree, such as parking lots and playgrounds) or installs facilities replacing existing public facilities in the course of implementing the housing site development project, the provisions of Articles 65 and 99 of the National Land Planning and Utilization Act shall apply mutatis mutandis to the attribution thereof, and in such cases, the "project implementer who is an administrative agency" shall be deemed the "project implementer" under this Act. Article 15(1) of the Enforcement Decree of the Housing Site Development Promotion Act provides that "facilities prescribed by Presidential Decree" under the former part of Article 25(1) of the former Housing Site Development Promotion Act refers to cemeteries, crematory facilities and charnel facilities.

Article 65(1) of the former National Land Planning and Utilization Act (amended by Act No. 11922, Jul. 16, 2013; hereinafter “former National Land Planning Act”) provides that where a person who has obtained permission for development activities is an administrative agency, if he/she installs a new public facility or installs a public facility replacing the existing public facility, the newly installed public facility shall gratuitously vest in the management agency to manage such facility, and the existing public facility shall gratuitously vest in the operator of the development project.

Article 2 subparag. 13 of the former National Land Planning Act provides that “public facilities” means roads, parks, railroads, waterworks, and other public facilities prescribed by Presidential Decree in order to specify and limit the scope of the application of the gratuitous reversion system of new and old public facilities. Article 4 of the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 28326, Sept. 19, 2017; hereinafter “former Enforcement Decree of the National Land Planning Act”) upon delegation from the authority provides that “public facilities prescribed by Presidential Decree” in subparagraph 13 of Article 2 of the former National Land Planning and Utilization Act means harbors, airports, canals, squares, green areas, public vacant land, reservoirs, reservoirs, rivers, fire prevention facilities, fire prevention facilities, erosion control facilities, tide control facilities, sewerage systems, ditches, etc. (No. 1); parking lots, playgrounds, reservoirs, crematoriums, cemeteries, cemeteries, charnel facilities (Article 2); and Article 2 subparag. 3(c) of the former Enforcement Decree of the National Land Planning and Utilization Act (hereinafter “former Enforcement Decree”).

As can be seen, comprehensively taking account of the contents and structure of the relevant provisions in order to specifically specify and limit the scope of application of the new and old system of free reversion in the implementation of a housing site development project, the term “public facilities” subject to the new and old system of free reversion in the implementation of the housing site development project shall be deemed to mean the remainder except for parking lots, playgrounds, cemeteries, public cemeteries, crematory facilities, and charnel facilities, which clearly excludes those prescribed under Article 25(1) of the former Housing Site Development Promotion Act and Article 15(1) of the Enforcement Decree of the former Enforcement Decree of the Housing Development Promotion Act from among the public facilities specifically listed under Article 2 subparag. 13 of the former National Land Planning Act and Article 4 of the former Enforcement Decree of the National Land Planning Act. Even if public facilities newly installed in the implementation of the housing site development project fall under the scope of “infrastructure” under Article 2 subparag. 6 of the former National Land Planning Act or “public facilities site” under Article 2 subparag. 2 of the former Enforcement Decree of the National Land Planning Act, the new system of free reversion is not applicable.

2. A. The lower court: (a) interpreted that public facilities to be gratuitously reverted to the State or a local government pursuant to Article 25(1) of the former Housing Site Development Promotion Act and Article 65(1) of the former National Land Planning and Utilization Act include “infrastructure” under Article 2 subparag. 6 of the former National Land Planning and Utilization Act; and (b) determined that the instant facilities do not constitute “public facilities” under Article 2 subparag. 13 of the former National Land Planning and Utilization Act, but fall under “waste disposal facilities” under Article 2 subparag. 6(g) of the former National Land Planning and Utilization Act, and thus, are gratuitously reverted to the Defendant on June 25, 2013, the date of completion inspection; and (c) held that the Defendant has the obligation to take over the registration procedure for transfer of ownership from the Plaintiff on the instant facilities on the grounds of gratuitous reversion on June

Such judgment below erred by misapprehending the legal principles on the scope of the application of the new and old gratuitous reversion system under Article 25(1) of the former Housing Site Development Promotion Act and Article 65(1) of the former National Land Planning and Utilization Act, which affected the conclusion of the judgment.

B. Furthermore, on the premise that the ownership of the instant facilities was reverted to the Defendant on June 25, 2013, the date of completion inspection pursuant to Article 25(1) of the former Housing Site Development Promotion Act and Article 65(1) of the former National Land Planning and Utilization Act, the lower court determined that the Defendant was liable to return the amount equivalent to the cost of maintaining and managing the instant facilities incurred by the Plaintiff after the date on which ownership was reverted

As long as the Defendant cannot be deemed to have acquired ownership of the instant facility, the part of the lower judgment on the claim for restitution of unjust enrichment cannot be maintained any longer, the entire lower judgment should be reversed.

C. However, according to the records, in relation to the claim for the registration of transfer of ownership of the instant facilities, the plaintiff specified only the claim for the registration of transfer of ownership on the ground of gratuitous reversion, but in the claim, the plaintiff and the defendant have the obligation to take over the registration of transfer of ownership pursuant to the agreement on the ground that they agreed to gratuitously revert ownership of the instant facilities to the defendant. However, since the claim for the registration of transfer of ownership based on agreement is a separate subject matter from the claim for the registration of transfer of ownership based on gratuitous reversion, the court below shall clearly state whether the plaintiff is subject to adjudication prior to the determination of this part, and state clearly that the plaintiff is subject to adjudication on the "request for the registration of transfer of ownership based on agreement," and state clearly that the purport of the claim should be corrected, and it should be determined

3. Therefore, without examining the remaining grounds of appeal, 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 Lee Ki-taik (Presiding Justice)