2015Na20316 Registration for cancellation of ownership

Gyeongbuk-do

1. The land compartmentalization and rearrangement cooperative in the Gyeyang District;

2. Interest and construction companies;

Daegu District Court Decision 2014Gahap40522 Decided December 18, 2014

January 20, 2016

February 24, 2016

1. Of the instant lawsuit, the part of the claim for the confirmation of existence of ownership that has been changed in exchange in the trial room is dismissed. 2. The Plaintiff’s appeal against the Defendants is dismissed.

3. The costs of the lawsuit after the appeal shall be borne by the plaintiff.

1. Purport of claim

A. It is confirmed that the 12,510.4m of the school site in Seongbuk-dong 2027, Chungcheongnam-dong, Chungcheongnam-dong, North Korea, is not owned by the Defendant Jung Jung-gu Construction Co., Ltd. (The Plaintiff sought confirmation that the said land was owned by the Plaintiff at the first instance trial, but changed its claim in exchange for the claim at the trial).

B. As to the Plaintiff regarding the 12,510.4m of the school site in Gyeyang-dong 2027 Young-dong, Chungcheongnam-gu, Chungcheongnam-gu, the Plaintiff (1) Defendant Yangyang-dong Land Partition Association shall take the procedure for cancellation of the registration of the owner’s name on October 8, 1999 on the ledger of land allotted by the authorities in recompense for development outlay-dong, and (2) Defendant Jungung Construction Co., Ltd. shall carry out the procedure for cancellation of the registration of the owner’s name on March 14, 2008, and the procedure for cancellation of the registration of the registration of the ownership preservation completed on February 28, 2013 as the receipt under the 16517 of the Daegu District

2. Purport of appeal

The judgment of the first instance is revoked. The same judgment as the written claim is revoked.

1. Facts of recognition;

The following facts may be acknowledged by the parties to a dispute or by their respective entries in Gap evidence 1, 10, 11, 25, Eul evidence 1, 25, and Eul evidence 1 and 5 (including the branch numbers, if not specially indicated; hereinafter the same shall apply) and by the purport of the whole pleadings, and no counter-proof exists:

A. The land rearrangement cooperative in the defendant Yang Young-dong (hereinafter referred to as the "the defendant cooperative") is a cooperative established to carry out the land rearrangement project in the Gyeyang-dong, Gyeyang-dong (hereinafter referred to as the "project in this case"), which was authorized to implement the project on June 8, 199.

B. On October 8, 199, the Defendant Mutual Aid Association approved the replotting plan designated as the school site (land scheduled for the establishment of Gyeyang Middle School) from the competent authority, and registered the land as the owner of the Defendant Mutual Aid and Development Fund (hereinafter “Defendant Mutual Aid and Development Company”) on the same day. On March 14, 2008, the Defendant Mutual Aid and Development Association sold the land to the Defendant Heavy Construction Co., Ltd. (hereinafter “Defendant Co., Ltd”) and registered the Defendant Mutual Aid and Development Fund as the owner of the land secured for development outlay on the same day.

C. On January 12, 201, the Defendant Union: (a) obtained authorization to change a land substitution plan including the change of the land number to 12,510 square meters (hereinafter “instant land”) at the port of Gyeyang-dong 2027, Chungcheongnam-dong, Chungcheongnam-dong; (b) on January 25, 2011, the Defendant Union announced a land substitution disposition on January 25, 201; and (c) the Defendant Company completed the registration of initial ownership preservation on the instant land under the name of the Defendant on February 28, 2013, including the change in the land number and the actual location or area is the same as the previous land.

2. Whether the part demanding confirmation of non-existence of ownership among the lawsuit of this case is legitimate

A. An action for confirmation and an objection for confirmation are not necessarily limited to a legal relationship between the plaintiff and the defendant, and the legal relationship between the plaintiff and the third party or between third parties can be the object thereof. However, according to such legal relationship, it is necessary to promptly confirm the legal relationship between the plaintiff and the defendant in order to eliminate risks in present in the plaintiff's rights or legal status, and it is necessary to promptly confirm the legal relationship by the confirmation judgment between the plaintiff. In addition, there is a benefit of confirmation that it becomes the most effective and appropriate means (see, e.g., Supreme Court Decisions 94Da59257, May 26, 1995; 97Da54024, Sept. 17, 1999). A lawsuit for confirmation can be brought even if it is possible to bring an action for confirmation, barring any special circumstance, is not effective in removal and it is contrary to the litigation economy (see, e.g., Supreme Court Decision 9Da126464, Oct. 11, 1991).

B. Determination

Even if the Plaintiff received such confirmation through a lawsuit, this does not immediately mean that the Plaintiff has any rights and duties as to the land of this case. Thus, it cannot be said that the land of this case is not owned by the Defendant Company, and it is not necessary to immediately confirm by the judgment. Therefore, among the lawsuit of this case, the part of the claim for confirmation of non-existence of ownership regarding the land

3. Part on the claim for cancellation of registration of initial ownership preservation against the defendant company

(a) Acquisition of a site for public facilities;

1) The plaintiff's assertion

The instant land is a school bridge necessary for the education of elementary schools, middle schools, and high schools, and falls under the site of public facilities pursuant to Article 2(1)2 of the former Act, and the main sentence of Article 63 of the same Act stipulates that “the site of public facilities arising from the implementation of the land-based demarcated interest project shall belong to the State or local governments according to the classification of managers following the date of the public announcement of the disposition of replotting.” Therefore, the ownership of the instant land was reverted to the Plaintiff according to the above Acts following the public announcement of the disposition of replotting. Therefore, the registration of

2) Determination

A) The main sentence of Article 63 of the former Act provides that "land offered for the use of public facilities shall revert to the State or a local government according to the classification of managers on the following day from the date of the public notice of a replotting disposition, but on the other hand, the proviso of the same Article provides that "school sites or market sites necessary for education of elementary schools, middle and high schools among public facilities shall belong to the price." In full view of the following, with respect to "land offered for the use of public facilities", the State or a local government shall not acquire its ownership without compensation, but shall acquire its ownership at a cost, and "on the following day from the date of the public notice of a replotting disposition, acquire its ownership without compensation," and "on the basis of Article 23 (3) and the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor until the date of the public notice of a replotting disposition, if the State or a local government fails to make a "justifiable compensation" to a project operator by the date of the public notice of a replotting disposition, it is reasonable to deem that it acquires its ownership.

① According to Article 2 of the former Act and the main sentence of Article 63 of the former Act, “school bridge site” is included in “public facilities” and “public facilities” arising from the implementation of a land readjustment project shall belong to the State or a local government according to the classification of managers following the public announcement date of a land substitution disposition, on the other hand, according to the proviso of Article 63 of the former Act, “school bridge site” shall belong to the State or a local government with compensation.

② According to Article 23(3) of the Constitution of the Republic of Korea, the expropriation, use, or restriction of property rights due to public necessity and compensation therefor shall be governed by Act and shall be paid with due compensation. The proviso of Article 63 of the former Act only stipulates that school school sites and market sites necessary for education at elementary schools, middle schools, and high schools shall be paid with compensation, and there is no provision regarding the meaning of compensation, i.e., standards for calculation of compensation, timing for payment, procedure for payment and method of payment, etc. However, in light of Article 23(3) of the Constitution, the State or local governments shall interpret that they acquire ownership only after the acquisition through consultation or expropriation procedure if there is a need for public interest to acquire school sites or market sites, and interpreting that the State or local governments acquire ownership of school sites or market sites even without the acquisition through consultation or expropriation procedure is contrary to Article 23(3) of the Constitution.

③ Article 54(1) of the former Act provides that “The land may be designated as a land secured by the authorities in recompense for development outlay or a reserved land without designating a certain land as a substitute lot in a replotting plan for the purpose of the implementation rules or the business plan.” While the school site belongs to the public land, the ownership at a cost is transferred pursuant to the proviso to Article 63 of the former Act, so the project implementer may designate it as a land secured by the authorities in recompense for development outlay under the proviso to Article 63 of the former Act.

④ Under the main sentence of Article 63 of the former Act, the Plaintiff did not present a case where the State or a local government did not pay the price in advance and was found to have originally acquired the school site on the following day from the date when a replotting disposition was publicly announced.

⑤ According to the above quoted evidence and evidence Nos. 6 through 13, Article 19-2 of the "Regulations on the Handling of Affairs concerning Land and Rearrangement Projects" provides that "sale of school sites" shall be referred to in Article 19-2 of the "Regulations on the Handling of Affairs concerning Land and Rearrangement Projects", the practical practices of land and rearrangement projects classify all school sites as land allotted by the authorities in recompense for development outlay, and the State, etc. has acquired the school sites through sales contract. The Ministry of Land, Transport and Maritime Affairs also has the main sentence of Article 63 of the former Act concerning public land gratuitously reverted to the Ministry of Land, Transport and Maritime Affairs, and the Ministry of Land, Transport and Maritime Affairs has the proviso that the school sites shall not be acquired at once in the absence of a certain legal act, such as sale and purchase, unlike gratuitous reversion, and normally in a land readjustment project, the school sites shall be registered in the register

(6) Even if a land readjustment project association acquires the ownership of a school site on the day following the public announcement date of a replotting disposition, the land designated as a school site under an urban management plan may not be used for any purpose other than the school site. The State or a local government may choose not to acquire the ownership of the school site on the day following the public announcement date of a replotting disposition, taking into account the current status of the budget or supply and demand of schools, and instead, to acquire the ownership of the school site under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects by deeming the future school installation project as a public project. A person, other than the State or a local government, may establish a private school by acquiring the school site

B) In the instant case, since the instant land is a school site under the instant land substitution plan for the instant project, it shall be deemed that the State or a local government acquired the ownership of the instant land, which is a “school site” only in the case where a “justifiable compensation” was made to the Defendant Union until the date of the public announcement of a land substitution disposition. However, the Plaintiff did not acquire the ownership of the instant land since the Plaintiff did not have any dispute between the parties since the public announcement of a land substitution disposition or after the public announcement

(b) Acquisition of reserved land;

1) The plaintiff's assertion

The instant land is reserved land not designated as substitute land under the land substitution plan, and the Plaintiff was designated as the person who acquired the substitute land or demarcated ownership. As such, the Plaintiff acquired the Plaintiff’s ownership on January 26, 201 as stipulated in the land substitution plan for the instant project on January 26, 201, which is the day following the public notice of land substitution disposition under Article 62(6) of the former Act. Therefore, the registration of ownership preservation completed in the name of the

2) Determination

A) According to Article 62(1) of the former Act, the right existing on the previous land not specified in the land substitution plan shall expire when the date when the land substitution plan is publicly announced expires. According to Article 62(6) of the former Act, the implementer acquires the ownership of the land allotted by the authorities in recompense for development outlay under Article 54 of the former Act (excluding the one already disposed under Article 57(4) of the former Act) on the day following the public notice of the land substitution plan, and the reserved land under Article 54 of the former Act shall acquire the ownership on the day following the public notice of the land substitution plan.

In light of the fact that the Plaintiff’s land is reserved land but there is no evidence that the Plaintiff’s ownership of the land of this case is indicated as the person to acquire the ownership of the land of this case under the land substitution plan, and the fact that the port land of this case exists, which is the State and another local government having jurisdiction over the land location other than the Plaintiff, the Plaintiff cannot be deemed to have been designated as the person to acquire the ownership of the land of this case under the land substitution plan

B) Even if the plaintiff was designated as a person to acquire ownership of the land of this case under a land substitution plan, considering the following, ① the reserved land in the annexed Table of Article 3 of the former Enforcement Rule of the Land substitution Project Act (amended by the Ordinance of the Ministry of Construction and Transportation No. 260 of Aug. 30, 200; hereinafter referred to as the "former Enforcement Rule of the Act") refers to the land not designated as a substitute land in the land substitution plan, and this refers to the "land not designated as substitute land" in the land substitution plan, including both the "land allotted by the authorities in recompense for development outlay under Article 54 of the former Act and the "land reserved under Article 54 of the former Act", and the "land reserved under Article 54 of the former Enforcement Rule of the Act" among the reserved land in annexed Table of Article 3 of the former Enforcement Rule of the Act (excluding the land already disposed by the provisions of Article 57 (4) of the former Enforcement Rule of the Act), the plaintiff's assertion that the land owner acquired ownership on the next day of the land substitution plan is not the land of this case.

(1) According to Article 54 of the former Act, the implementer of a land readjustment project may set a certain land as land substitution in the land substitution plan for the purpose of setting the rules, articles of incorporation, or business plan to cover the expenses for the project, or for the purpose of setting the rules, articles of incorporation, or business plan, and shall dispose or manage the land allotted by the authorities in recompense for development outlay or reserved land rationally in accordance with the purpose and method set forth in the rules, regulations, or business plan. According to Article 66 of the former Act, the implementer shall set a land substitution plan in order to take a land substitution disposition for the land in the land substitution plan. Under Article 46(1) and (2) of the former Act, the implementer shall set a land substitution plan in order to take a land substitution disposition for the land in the land substitution plan, and the "detailed description of the land allotted by the authorities in recompense for development outlay or reserved land under Article 54 of the former Enforcement Rule of the Act" shall be

(2) According to Article 62 (6) of the former Act, the land allotted by the authorities in recompense of development outlay under Article 54 of the former Act (excluding the land already disposed of under Article 57 (4) of the former Act) shall acquire the ownership of the implementer on the next day from the date of the public notice of the disposition of replotting, the land in recompense of development recompense under Article 54 of the former Act (excluding the land already disposed of under Article 57 (4) of the former Act) shall acquire the ownership of the land in reserved land under Article 54 of the former Act, the land in reserved land under Article 54 of the former Act shall have only one ownership, and the land owner of one thing shall be determined as the land in substitution plan, and the land owner of the land in substitution plan shall not designate the land as the land in reserved land under Article 54 of the former Act, because the land in substitution plan is not specified as the land substitution plan as the land in substitution plan but as the land in reserved land under Article 54 of the former Act.

4. Part of the claim for cancellation of the registration of the owner in the registry of land allotted by the Defendants.

A. The plaintiff's assertion

Although the Plaintiff acquired ownership on the day following the public announcement of a replotting disposition in accordance with Article 62(6) or 63 of the former Act, the instant land is a school school site necessary for the education of elementary schools, middle schools, or high schools, the Defendant Union registered the name of the owner who is the owner of the instant land as the land in the land allotted by the authorities in recompense for Land Development, without permission, and registered the name of the owner who is the owner of the Defendant Company to change the Defendant Company to the owner, so the registration of the owner’s name in the above land

B. Determination

1) Where a land readjustment project executor designates a land allotted by the authorities in recompense of development outlay before a land substitution disposition and disposes of it to a third party, if the transferee satisfies any of the requirements in the register of land delivery or the land secured by the authorities in recompense of development outlay, the transferee shall not only be able to exclusively use and profit from the land in question, but also be able to dispose of the land to a third party. If a land substitution disposition is later announced, the transferee shall finally occupy the land secured by the authorities in recompense of development recompense or the person registered in the register of the land secured by the authorities in recompense of development recompense of development recompense of land shall acquire ownership on the next day (Supreme Court Decision 2007Da44886 Decided 205,

2) As seen earlier, the Plaintiff did not acquire the ownership of the instant land pursuant to Article 62(6) or 63 of the former Act, and there is no other evidence to acknowledge that the Plaintiff acquired the right to use and benefit from the instant land as a real right by entering into a sales contract with the Defendant Union. Therefore, the Plaintiff’s assertion is without merit.

5. Conclusion

Therefore, the part of the claim for confirmation of existence of ownership that the plaintiff changed in exchange from the trial at the trial is unlawful, and thus, it shall be dismissed, and the plaintiff's claim for cancellation of registration of ownership preservation against the defendant company and the claim for cancellation of registration of ownership preservation against the defendant company on the register of land secured for recompense for development outlay for development outlay for the defendant company shall be dismissed, respectively. Since the part of the claim for cancellation of registration of ownership preservation against the defendant company in the judgment of the court of first instance is justified as this conclusion is consistent with this conclusion, the plaintiff's appeal against the defendant company is dismissed as it is without merit. The part of the decision of the court of first instance as to the claim for cancellation of registration of ownership preservation against the defendant company on the register of land secured for development outlay for development outlay for the conclusion differs from this conclusion, but since only the plaintiff appealeds against the plaintiff,

The presiding judge, judge and judicial police officer

Judges Kim Tae-tae

Judges Soh Hospital

A person shall be appointed.

A person shall be appointed.