[1] Where a housing construction project operator purchases and procure specific land as a school site after consultation with the Office of Education pursuant to the Act on Special Cases concerning the Acquisition, etc. of School Sites, and becomes a situation where he/she can supply it to the City/Do immediately, whether there is a legal obligation to purchase the school site immediately to the City/Do (negative)

[2] The elements to be considered in the process of purchasing a specific school site and constructing school facilities by embodying the urban planning of a City/Do, and the requirements and procedures for the conclusion of a contract by determining the purchase of a school site

[1] The Act on Special Cases Concerning the Securing, etc. of School Sites provides for special cases concerning the creation, development, and supply of school sites for public elementary schools, middle schools, and high schools, the purpose of which is to facilitate the existing school construction in the vicinity where it is impossible to secure school sites or procure school sites. It is intended to achieve the public interest purpose of collective housing development by imposing an obligation on the person implementing development projects larger than a certain scale to secure school sites or to charge school sites charges. As such, the person who implements housing development projects larger than 300 households creates, develops, or procure school sites and supply them to City/Do as a premise for obtaining approval of a housing development project plan. In fact, even if a developer purchases and purchases specific land as a school site after consultation with the Office of Education and supply it to the City/Do immediately, this is merely a fact that it satisfies the requirements of a development project plan, and thus, it cannot be deemed that the person selected a school site directly purchases and purchases the land from the City/Do.

[2] Article 4(2) of the Act on Special Cases Concerning the Acquisition, etc. of School Sites provides that City/Do shall secure school sites supplied by development project implementers as public property belonging to the special accounts of City/Do educational expenses. However, as stated in Article 3(4) of the same Act, this means that City/Do shall determine and publicly notify an urban management plan concerning the pertinent school sites as urban planning facilities and implement urban planning as public property of City/Do after formulating an urban planning plan pursuant to Article 25 of the National Land Planning and Utilization Act. In fact, in cases where City/Do purchases specific school sites and constructs school facilities by specifying urban planning, it means the achievement of the plan for accommodating students, balanced use of land, public interest of Ministry of Education and Human Resources, financial support and budget from Ministry of Education, regional conditions, educational environment, etc., and etc. However, even if a City/Do determines the purchase of school sites, it shall not be deemed that a contract is concluded with a local government as a party to a contract with a public official in charge of signing or sealing the contract, and it shall not be deemed as a party to the contract.

[1] Articles 1 and 3 of the Act on Special Cases concerning the Securing, etc. of School Sites / [2] Articles 3(4) and 4(2) of the Act on Special Cases concerning the Securing, etc. of School Sites; Article 25 of the National Land Planning and Utilization Act; Article 63 of the Local Finance Act; Article 11 of the Act on Contracts to Which the State is a Party

Han-dong Co., Ltd. (Attorney Cho Young-dong et al., Counsel for the defendant-appellant)

Gyeongnam-do (Law Firm Kim & Yang, et al., Counsel for the defendant-appellant)

June 13, 2007

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

As to the real estate stated in the attached list, it is confirmed that the Plaintiff and the Defendant are obligated to conclude a trade contract with the purchase price under Article 4(3)2 of the Act on Special Cases concerning the Development of School Sites, Etc... The Defendant shall pay to the Plaintiff the amount equivalent to the rate of KRW 8,834,188 per month from the day following the delivery of the copy of the complaint to the

1. Facts of recognition;

The following facts shall be acknowledged by taking into account the following facts as a whole in the testimony of Gap 1 to 8 (including each number), Eul 1 to 12 (including each number), and Kim Jong-il as a whole:

A. The Plaintiff planned to build multi-family housing between 620-2 and 35 plot of land in Yangsan-si and 620-2, and purchased a project site, and applied for the approval of the housing construction project plan on December 26, 2003.

B. In relation to the above application of the plaintiff on December 30, 2003, Yangsan-si requested a comprehensive review on the student accommodation plan under the housing construction to the Gyeongsan-do Office of Education under the defendant (hereinafter "Yyang-do Office of Education") on December 30, 2003. On January 13, 2004, Yangsan-si received a reply from the Yangsan-si Office of Education that "it is impossible to admit students in both countries in the vicinity of the project site, so the school site should be secured pursuant to Article 3 of the Act on Special Cases Concerning the Securing of School Sites, etc.", and around January 2004, the plaintiff made a supplementary notification to the plaintiff on the application for the approval of the housing construction plan, stating the supplementary matters.

C. Accordingly, the Plaintiff selected two sites in the vicinity of the project site and consulted with the Yangsan Office of Education on a land purchase plan. However, the Plaintiff cannot accept the opinions of the Yangsan Office of Education that real estate in the attached table (hereinafter “instant land”) directly selected by the Defendant-Do Office of Education should be secured as school site, and subsequently supplemented the housing construction project plan by securing and supplying the instant land as school site around February 2004.

D. On February 27, 2004, the Yangsan Office of Education responded to the request for re-consultation on school sites from Yangsan-si, stating the following terms and conditions of consultation, along with the opinion that the land in this case is appropriate for school sites in terms of location, size, etc.

(1) Development project implementers shall purchase school sites, create and develop them, and complete determination of urban planning facilities (schools);

(2) The establishment of a school is planned after completion of the determination of urban planning facilities (schools and two years and six months), and the period and time of the completion of the school, in consideration of the scheduled date for the use of the apartment.

(3) The development project operator shall re-consultation with the Office of Education of Korea whether the student can be admitted prior to the scheduled date of use of multi-family housing.

E. The Plaintiff paid a total of KRW 1,93,380,752 as the purchase price from April 2004 to June 2004, and purchased the instant land from the landowners. In addition, 126,824,455 won was disbursed due to purchase cost of the instant appurtenant land, service cost for applying for determination of urban planning facilities (schools), various taxes and public charges, etc., and the Plaintiff’s expenses incurred in securing the instant land as school sites were 2,120,205,207 won.

F. On February 7, 2005, Yangsan-si approved the housing construction project plan filed by the Plaintiff in accordance with Article 16 of the Housing Act and Article 15 of the Enforcement Decree of the same Act, and on March 3, 2005, determined the instant land as an urban planning facility (school) in accordance with Articles 30, 32 of the National Land Planning and Utilization Act, and Articles 25 and 27 of the Enforcement Decree of the same Act, and announced it after approving the topographic map.

G. After that, on November 3, 2005, the Plaintiff requested the Gyeyang-si Office of Education to purchase the instant land, but on November 22, 2005, from the Yangsan Office of Education, the Plaintiff received a reply from the Yangsan-si Office of Education that “Yansan-si 620-2 school districts of Yangsan-si 620-2, which is to be constructed by 925 households, are both schools, and it is expected to be newly established after 2009, which is expected to be increased by the number of students, as a result of consultation with the department in charge of the office in charge of the Gyeongnam-do Office of Education in 2006.”

H. On July 21, 2006, the Yangsan Office of Education again responded to the Plaintiff on July 21, 2006 to secure the purchase cost for the newly established school site in Gyeyang-si, 260-2, Gyeyang-si, 2006, but the Ministry of Education and Human Resources Development following the review of long-term student enrollments in the region of Dong due to low birth rates failed to secure the purchase cost for school site when organizing the first estimated budget in 2006. The new school was determined by the mid- and long-term student enrollment plan of the Office of Education in Korea, considering the trend of population increase in the region of Dong, and according to the present plan, land purchase is presumed possible after 209.

I. Meanwhile, according to the plan for the long-term enrollment of students at the Busan District Office of Education established on June 16, 2006 (2007-201), the number of students at both primary and middle schools is anticipated to be reduced by 1,060 in 206, 957 in 2007, 957 in 2007, 1,035 in 2008, 869 in 2009, 817 in 2010, and 339 in 2011.

(j) In addition, the Ministry of Education and Human Resources Development reduced the number of students due to low birth rate, while the newly established factors of schools (2020) increase, and inspected the establishment plan of schools by region and by grade twice. On July 20, 2006, the Ministry of Education and Human Resources Development (Ministry of Education and Human Resources Development) conducted the 2012 year for the opening year of elementary schools, which are newly established in Yangsan-si, and adjusted the budget support from 2007 to 2010 for the first time.

2. The assertion and judgment

A. The plaintiff's assertion

Article 3(1) of the Act on Special Cases concerning the Securing of School Sites provides that a person who implements development projects with a scale of 300 or more shall include matters concerning the creation and development of school sites to be established for the execution of a development project. Article 3(3) of the same Act provides that development project implementers shall hear the opinion of the Superintendent of the Office of Education when they intend to develop school sites or procure school sites. Article 4(2) of the same Act provides that development project implementers shall supply school sites to Cities/Dos, secure them as public property under the jurisdiction of the special accounts of City/Do educational expenses. Article 3(3)2 of the same Act provides that the supply price of school sites supplied by development project implementers shall be the appraised value under Article 2 subparag. 7 of the Public Notice of Values and Appraisal of Real Estate Act, and that facilities necessary for compulsory education such as elementary schools shall be established with the State or a local government, so if they obtain approval of a joint school construction project plan with a scale of 300 or more, they shall secure and supply new school sites at the price determined by the project implementers/Do.

B. Defendant’s assertion

In accordance with the Act on Special Cases Concerning the Securing of School Sites, etc., the defendant secured the land in this case as school sites and decided and announced as urban planning facilities (schools) to the defendant, so it is not obligated to purchase the land in this case as required by the defendant, so it can be decided whether to purchase the land in this case. The time and price of purchase are determined at will by the defendant, not by the defendant, but by the defendant, according to the time and budget support plan of the newly established school in accordance with the mid- to long-term local education plan of the Ministry of Education and Human Resources Development and Human Resources Development, the new school is established after 2010 according to the review of the long-term education plan of the Ministry of Education and Human Resources Development due to low birth rate, and the defendant also decided whether to purchase the land in this case by the mid- to long-term education plan, considering the trend of population growth, and it can be presumed that it can be possible to purchase it after 209, and

(c) Markets:

(1) The Act on Special Cases Concerning the Securing, etc. of School Sites provides for special cases concerning the creation, development, and supply of school sites for public elementary schools, middle schools, and high schools, the purpose of which is to facilitate the existing school construction in the vicinity where it is impossible to secure school sites or procure school sites. It is intended to achieve the public interest purpose of collective housing development by having a person implementing a development project more than a certain scale secure school sites or impose an obligation to bear school site charges, thereby achieving the concentration of population, increase in the number of households, and the necessity of establishing a school accordingly. As such, the Plaintiff, etc., imposing a duty of public interest on a person who implements a housing development project more than 300 households, such as the Plaintiff, purchases and procure specific land as a premise for obtaining approval of the housing development project plan, even if the developer actually purchased and secured it as a school site and supplied it to City/Do immediately after consultation with the Office of Education, this is merely an act that satisfies the initial conditions of the development project plan, and thus, it cannot be deemed that the Plaintiff directly purchased and purchased the land.

(2) Meanwhile, Article 4(2) of the Act on Special Cases Concerning the Acquisition, etc. of School Sites provides that City/Do shall procure school sites supplied by development project implementers as public property belonging to the special accounts of City/Do educational expenses. However, as stated in Article 3(4) of the same Act, City/Do shall determine and publicly notify the relevant school sites as urban planning facilities after formulating an urban management plan in accordance with Article 25 of the National Land Planning and Utilization Act, and implement urban planning as public property of City/Do. In fact, in cases where City/Do purchases specific school sites by specifying urban planning and constructing school facilities, it shall be balanced use of land; the public interest of Ministry of Education and Human Resources Development provides for the achievement of the plan for accommodation of students due to increase or decrease of the number of students; the timing and method of purchasing school sites; the price of purchase; however, it shall be determined by the local government as the price of each contract to which the contract should be executed; and the purpose of the contract shall be determined by the local government as the party to the contract, which shall not be deemed as the party to the contract.

(3) Therefore, inasmuch as a specific and effective sales contract between the Plaintiff and the Defendant on the instant land has not been concluded, the fact that the Plaintiff completed the purchase of the instant land in accordance with the requirements and procedures prescribed in the Act on the Acquisition, etc. of School Sites cannot be deemed as a legal obligation to purchase the instant land, and the Plaintiff’s claim for damages caused by nonperformance is without merit, on the premise that the Defendant is liable to purchase the instant land.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges domini-do (Presiding Judge)