[1] Legislative intent and legal nature of Article 65(2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents

[2] Whether the scope of transfer without compensation pursuant to the latter part of Article 65 (2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents may be limited to the scope of the installation cost of the newly installed infrastructure by replacing it with the "the same use" of the disused infrastructure (negative)

[3] The legal nature of the authorization for implementing a housing reconstruction project (i.e., discretionary act), and whether it is possible to impose any condition that is not based on the statutory limitation (affirmative)

[1] The former part of Article 65 (2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents does not have the essence of deprivation and restriction of a project implementer's property rights, but is a mandatory provision to uniformly determine the project implementer's status toward the future by prescribing the ownership relationship of public facilities, etc. in the project district. The legislative intent of the latter part is to take into account the project implementer's property losses caused by the private project implementer's gratuitous reversion of the infrastructure newly installed by the private project implementer to the management authority in accordance with the former part within the scope equivalent to the installation cost of the newly installed infrastructure, thereby compensating the project implementer for the above property losses within the reasonable scope. In light of the latter part of Article 65 (2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the latter part is a mandatory provision compelling a private project implementer to gratuitously transfer the infrastructure installed by the state or local government, the use of which is ceased

[2] The latter part of Article 65 (2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents provides that a project implementer shall gratuitously transfer the infrastructure for rearrangement, which is abolished, to the extent equivalent to the installation cost of the newly installed infrastructure for rearrangement, and does not limit the transfer to the gratuitous transfer within the scope of the installation cost of the newly abolished infrastructure for rearrangement, i.e., within the scope of the same type of infrastructure for rearrangement, and there is no ground to interpret the said provision as the fundamental infrastructure for rearrangement. Thus, the scope of free transfer cannot be limited to the installation cost of the newly installed infrastructure because of the same use.

[3] The authorization for implementing a housing reconstruction project is a so-called beneficial administrative disposition with the effect of granting rights or interests to the other party, and is not stipulated in the law as to the requirements of administrative disposition, so long as it falls under the discretionary act of the administrative agency, so even if it is not based on the statutory limitation, it may impose various conditions within the necessary scope, such as the need for public interest.

[1] Article 65 (2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents / [2] Article 65 (2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents

[1] Supreme Court Decision 2006Du11149 Decided April 13, 2007

○○ Apartment Housing Reconstruction Project Association (Law Firm Han-gu, Attorneys Lee In-ho, Counsel for the plaintiff-appellant)

The head of Seocho-gu Seoul Metropolitan Government (Attorney Kim Jong-hun, Counsel for defendant)

Seoul High Court Decision 2006Nu6811 decided Feb. 16, 2007

Each appeal is dismissed. The costs of appeal are assessed against each party.

1. As to the defendant's appeal

Article 65(2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the “Act”) provides that any fundamental infrastructure newly installed by a project implementer who is not the head of a Si/Gun or a housing construction project shall gratuitously vest in the State or a local government to manage the relevant infrastructure (hereinafter referred to as “former Regulations”), and any fundamental infrastructure owned by the State or a local government, the use of which is ceased due to the implementation of a rearrangement project, shall be transferred to the project implementer without compensation to the extent equivalent to the installation cost of the newly installed fundamental infrastructure (hereinafter referred to as “former Regulations”). The former provisions do not essence the deprivation of or restriction on the property rights of the project implementer, but are a mandatory provision that intends to uniformly determine the status of the project implementer by prescribing the ownership of public facilities, etc. in the project district to the future. The purpose of the latter provisions is to ensure that the new fundamental infrastructure newly installed by a private project implementer is transferred to the project implementer without compensation within the scope equivalent to the installation cost of the newly installed fundamental infrastructure within the scope of 10.16.

In addition, the latter part of the Act provides that a new infrastructure for maintenance shall be transferred without compensation to the extent equivalent to the installation cost of the newly installed infrastructure for maintenance, that is, a transfer without compensation within the scope of installation cost of the same type of infrastructure for maintenance, and there is no reason to interpret the infrastructure for maintenance under the above provision as the infrastructure for maintenance without compensation, and thus, the scope of transfer without compensation cannot be limited to the installation cost of the newly installed infrastructure for the same purpose.

The lower court: (a) comprehensively based on the selected evidence, found that the Plaintiff’s implementation plan for the housing reconstruction project of 200 square meters located within 200 square meters and located within 1,80,000 neighboring parks within the instant project area; (b) based on the installation cost of KRW 1,90,45,00; and (c) based on the construction cost of 200,000,000,000,000,000,000,000,000 within 20,000,0000,000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00.

In light of the above legal principles and records, the fact-finding and judgment of the court below are correct, and there is no violation of the rules of evidence, incomplete deliberation, or misapprehension of legal principles as to the judicial review of deviation and abuse of discretionary power, as alleged in the grounds of appeal.

2. As to the Plaintiff’s appeal

A. As to the imposition of no more than five conditions of authorization

The authorization for implementing a housing reconstruction project is a so-called beneficial administrative disposition with the effect of granting rights or interests to the other party, and is not stipulated in the law as to the requirements of administrative disposition, so long as it belongs to the discretionary act of the administrative agency, the defendant may impose various conditions (charges) within the necessary scope, not based on the statutory restrictions, but on the need of public interest, etc.

Based on the selected evidence, the court below found that the 25m wide road, which is scheduled to be newly constructed based on the △ apartment zone development master plan of △△ apartment zone, passed through the west side of the apartment complex of this case and connects the apartment complex to the Olympic Games. On January 18, 2005, the plaintiff agreed that the 2nd complex association should bear the expenses for the installation of all facilities necessary for the above construction (road, distribution bridge, soundproof facilities, etc.) between the 2nd complex association and the 2nd complex association. Accordingly, the residents of the apartment complex of this case and the 2nd apartment complex were not able to use the above 5m high-level apartment complex or sign the 2nd apartment zone development plan of this case to prevent the above construction of the apartment road by the residents' use of the above 5m high-level apartment zone or the 5m high-level apartment complex development plan to prevent the above construction of the apartment complex by the residents' use of the above 5m-level apartment complex or the 2nd apartment zone development plan of this case.

Furthermore, the court below rejected the plaintiff's above assertion on the premise that the main 2 complex association bears the duty of installation of the words and spawn as the above movement by the agreement of January 18, 2005, and that it is improper to impose duplicate burden five of the conditions of authorization. The above agreement is merely the main 2 complex association's burden of installation of the facilities necessary for the "construction of a road with a width of 25 meters" and it is difficult to view the above agreement as including the purport of the main 2 complex association's burden. In light of the records, the above decision of the court below is just and acceptable, and there is no error of law such as interpretation of intent or misapprehension of legal principles as to deviation and abuse of discretionary power, etc. as alleged in the grounds of appeal.

B. As to the imposition of 11 times the conditions of authorization

Based on the selected evidence, the lower court found that the lower court’s determination that the Plaintiff’s existing sewage culvert 2 was necessary for the improvement of sewage culvert 2,000 square meters in Seocho-gu ( Address 3 omitted), and that the sewage culvert 5,087.5 square meters (large 15 meters) was installed under the ground of this case, and that the Plaintiff included 1/2 of the above roads as the project area of this case, and that the lower court’s sewage culvert and 2, which were located within the project area of this case, could not reach an agreement on the construction site of this case to the extent that the Plaintiff’s existing sewage culvert 2, which is located within the project area of this case, could not be seen as having violated the laws and regulations regarding the construction site of this case. On the other hand, the lower court determined that the lower court’s existing sewage culvert 2,000 square meters away from the project area of this case and the lower court’s existing sewage culvert 2, the lower court’s construction site of this case, which is located outside the project area of this case, should be established.

(c) As to the imposition of no more than 19 conditions of authorization

The court below acknowledged the facts that the police box is constructed on the ground of the Seoul Seocho-gu ( Address 2 omitted). The above police box is located at 3/4 points along with the boundary line of the original service area of this case, and is located at 3/4 points along with the boundary line of the original service area. Thus, Articles 65 (2) and 99 of the National Land Planning and Utilization Act provide that "if a person is not an administrative agency permitted to engage in development acts, the newly installed public facilities shall gratuitously belong to the management office of the facility, and the above public facilities shall be transferred to the above △ apartment zone development master plan of the Seoul Metropolitan Government and the plaintiff's business plan, and the above police box shall be installed at 50 meters away from the above land." The court below held that there is no error of law by misapprehending the legal principles as to the transfer of the above police box, which is an abuse of authority's discretionary authority, and thus, it cannot be viewed that the court below's new construction and use of the land is unlawful.

3. Conclusion

Therefore, each appeal is dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)