(영문) 부산지방법원 2009.8.19.선고 2008가합255 판결

1. The defendant shall pay to the plaintiff 7,204,50,000 won with 5% interest per annum from January 10, 2008 to June 24, 2009 and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the defendant.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The defendant shall pay to the plaintiff 7,204,50,000 won with 5% interest per annum from April 21, 2006 to June 24, 2009 and 20% interest per annum from the next day to the day of complete payment.

Reasons

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking into account the following facts: Gap's evidence 1, 8 through 11, Gap's evidence 5 through 8, Gap's evidence 14, 16, 17, 19, Eul's evidence 22, and the whole purport of each appraisal commission to the country's appraisal corporations of this court, and each appraisal commission to the country's appraisal corporations of this

A. On July 30, 2003, the Plaintiff removed the project area as the project area (54,258 square meters at the time of project implementation approval as of July 15, 2005, but the project area was increased as above due to the announcement of alteration designation as of December 31, 2008, the Busan Metropolitan City Notification No. 2008-545 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the "existing apartment") with 680 households and 280 households of apartment (hereinafter referred to as the "existing apartment"), and newly constructed the apartment (hereinafter referred to as the "renovation project") under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the "Urban Improvement Act"), the Plaintiff was transferred to the Housing Reconstruction Project under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the "Urban Improvement Project"), and the housing reconstruction Project was implemented within the project area after the enforcement of the reconstruction project in this case.

B. Accordingly, the plaintiff between the defendant on April 21, 2006 and the defendant, and the land incorporated by the plaintiff in the business area of this case from the defendant as a road in the above existing apartment complex, Busan Suwon-dong, which was used as a road in the above existing apartment complex

○ 4,876m [the external roads and the central roads of the existing apartment complex]

◎ 도로 19,823m(이하 '이 사건 도로'라고 한다)에서 2005. 10. 31. 분할되어 그 무렵 대지로 지목이 변경된 토지이다. 이하 '이 사건 토지'라고 한다]를 대금 7,204,500,000원에 매수하기로 하는 내용의 매매계약(이하 ‘이 사건 매매계약'이라고 한다)을 체결하고 그 무렵 피고에게 위 매매대금을 전부 지급한 뒤, 이 사건 토지에 관하여 원고 앞으로 소유권이전등기를 경료하였다.

C. Meanwhile, while implementing the instant reconstruction project, the Plaintiff newly installed a square meter of the road 2,088m which is an infrastructure for rearrangement under the Urban Improvement Act (However, the actual measurement at the stage of the completion of the said reconstruction project seems to have increased the area by 13.5m square meters) and donated it to the Defendant by installing a new square meter of the children’s park 2,045m square meters.

2. The parties' assertion

A. The plaintiff's assertion

Since the land purchased by the Plaintiff from the Defendant is “infrastructure for maintenance owned by the State or a local government, which is transferred without compensation to the project executor” as stipulated in the latter part of Article 65(2) of the Act on the Maintenance of Urban Areas and Dwelling Conditions for Residents, the instant sales contract is null and void as it violates the latter part of Article 65(2) of the said Act, which is a mandatory provision. Since the Defendant was well aware that the instant land constitutes an infrastructure for maintenance subject to gratuitous transfer from the time of the instant sales contract, it is well known that it constitutes an infrastructure for maintenance subject to gratuitous transfer, the Defendant is obligated to return the purchase price of the instant

B. Defendant’s assertion

The instant land is not a facility established by urban planning under relevant laws, such as the National Land Planning and Utilization Act (hereinafter referred to as the “National Land Planning Act”), but it is merely a de facto road that did not take the construction procedures such as road routes approval under the Road Act, and it does not constitute an infrastructure for maintenance subject to gratuitous transfer under the latter part of Article 62(2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions, and thus,

3. Determination

A. Relevant statutes

Urban Improvement Act

Article 2 (Definitions)

The definitions of terms used in this Act shall be as follows:

1. The term "maintenance zone" means the zone designated and publicly notified under Article 4 in order to implement a planned rearrangement project;

2. The term "maintenance project" means a project falling under any of the following items, which maintains infrastructure for rearrangement, improves or constructs structures, such as housing, within a rearrangement zone, to restore urban functions pursuant to the procedures prescribed in this Act: Provided, That in the case of item (c), housing reconstruction project implemented in a zone other than a rearrangement zone shall be included;

4. The term "maintenance infrastructure" means roads, water supply and drainage systems, parks, public parking lots, common parking lots, common utility tunnels (referring to the common utility conduits under Article 2 (9) of the National Land Planning and Utilization Act; hereinafter the same shall apply), and other facilities prescribed by Presidential Decree, which are necessary for the living of residents when supplying gas, etc. necessary

Article 65 (Reversion of Rearrangement Basis Facilities, Land, etc.)

(2) A new infrastructure built in the course of implementing an improvement project by a project implementer, other than the head of a Si/Gun or housing project, shall gratuitously vest in the State or a local government to manage such infrastructure, and a infrastructure owned by the State or a local government to be ceased to be used due to the implementation of an improvement project shall be transferred gratuitously to the project implementer to the extent equivalent to installation costs of

(4) A project implementer shall notify the management authority prior to completion of a rearrangement project the kinds and details of the infrastructure to be reverted to, and the property to be reverted to, the management authority under paragraphs (1) and (2) of this Article, and the relevant rearrangement infrastructure shall be deemed reverted to, the State or a local government, or reverted to, the project implementer or transferred at the time of notification to the

Article 20 of the Housing Construction Promotion Act (amended by Act No. 3998, Dec. 24, 1987; hereinafter referred to as the "former Housing Construction Promotion Act") (Establishment of Basic Plan for Apartment Zone Development)

(1) The head of a Si (including the Seoul Special Metropolitan City Mayor and the Busan Metropolitan City Mayor; hereinafter the same shall apply)/Gun shall establish a master plan for the development of an apartment zone (hereinafter referred to as the "district development plan") as prescribed by the Urban Planning Act and obtain the approval of the Minister of Construction and Transportation.

(2) When the head of a Si/Gun obtains approval under paragraph (1), he/she shall publicly announce a development plan for the relevant district, as prescribed by Presidential Decree, and have it available for public perusal.

The provisions of the Urban Redevelopment Act shall apply mutatis mutandis to the execution procedures of apartment district development projects under Article 2 (Procedures for Implementation of Apartment District Development Projects) (Provided, That this shall not apply where the State, a local government, or the Korea National Housing Corporation is a project undertaker). In such cases, apartment district development projects shall be deemed urban redevelopment projects, and when a district development plan is publicly announced under Article 20 (2), they shall be deemed to have been determined and publicly announced under Article 5 of the Urban Redevelopment Act, and when a project implementor is designated and publicly announced under Articles 10 and 11 of the Urban Redevelopment Act, they shall be deemed to have been publicly announced under Articles 21 (3).

Article 5 (Formulation and Determination of Redevelopment Plans) Article 5 (Formulation and Determination of Redevelopment Plans) of the Urban Redevelopment Act (amended by Act No. 5116 of December 29, 1995, hereinafter referred to as the "former Urban Redevelopment Act").

(5) Determination or modification of a redevelopment project plan shall be determined by the Minister of Construction and Transportation by a resolution of the Central Urban Planning Committee: Provided, That modification of minor matters prescribed by Presidential Decree shall be determined by the Minister of Construction and Transportation without going through a resolution of the Central Urban Planning Committee, or by reporting to the Minister of Construction and Transportation

(6) When the Minister of Construction and Transportation has determined or modified the redevelopment project plan under the provisions of paragraph (5), he shall notify it without delay in the Official Gazette, send the decision or modified redevelopment project plan to the head of the competent Si/Gun, and have it available for public perusal: Provided, That this shall not apply to any modified matter

(7) Matters to be determined by the urban planning among the matters of public announcement of the determination or modification of the redevelopment project plan under paragraph (6) shall be deemed to have been determined by the urban planning under the Urban Planning Act, and the previous urban planning decision in conflict with the redevelopment project plan shall be

Article 2 (Definition of Terms used in this Act) of the Urban Planning Act (amended by Act No. 4427, Dec. 14, 1991; hereinafter referred to as the “former Urban Planning Act”) is defined as follows.

1. The term "urban planning" means the following plans concerning the land utilization, transportation, sanitation, industry, security, national defense, welfare, culture, etc. for promoting the sound development of urban communities and within the urban planning zones and their zones, and for the promotion of public peace and order and public welfare:

(b) Roads, squares, parking lots, automobile depots, railroads, track color roads, high-speed railroads, rivers, canals, harbors, airports, green areas, water supply systems, sewerage tunnels, slaughter tunnels, cemeteries, and public vacant land, such as garbage and waste treatment plants, electricity supply facilities, reservoirs, water supply facilities, oil storage facilities, oil supply facilities, oil supply and oil distribution business facilities, waterproof facilities, erosion control facilities and aiding and abetting facilities; 3. The term "urban planning facilities" means facilities installed in accordance with the plans under subparagraph 1 (b) and (c) determined by urban planning;

Article 16 (Installation and Management of Urban Planning Facilities)

(1) When it is intended to install the facilities as prescribed in Article 2 (1) 1 (b) and (c) in the ground space and underground space, only the urban planning committee shall install them: Provided, That the same shall not apply to the facilities as prescribed by the Presidential Decree.

B. Determination as to whether the fundamental infrastructure is subject to gratuitous transfer

(1) In light of Article 65(2) and Article 65(2) of the National Land Planning and Utilization Act, where a maintenance project implementer under the same Act, who is not the head of a Si/Gun or a housing construction project, newly installed by the implementation of a rearrangement project shall gratuitously vest in the State or a local government to manage the relevant facilities, and the maintenance 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 gratuitously transferred to the project implementer within the extent equivalent to the installation cost of the newly installed maintenance infrastructure. Meanwhile, according to Article 2 subparag. 4(c) and (d) and Article 2 subparag. 11 of the National Land Planning and Utilization Act, the plan for the installation, maintenance or improvement of infrastructure and the plan for an urban development project or a rearrangement project under the National Land Planning and Utilization Act constitutes an urban management plan under the same Act, and includes an urban planning facility project and a rearrangement project under the Urban Planning and Utilization Act for the implementation of an urban management plan, the Urban Rearrangement Act aims to provide matters necessary

As stipulated in Article 65 (2) of the Act on the Maintenance and Improvement of Urban Areas refers to the infrastructure owned by the State or a local government, which is already determined by an urban management plan under the National Land Planning and Utilization Act, prior to the approval of the implementation of a rearrangement project (see, e.g., Supreme Court Decision 2007Du24289, Nov. 27, 2008). Meanwhile, Article 22 (1) of the former Housing Construction Promotion Act and Article 5 (7) of the former Urban Redevelopment Act provide that in cases where a master plan to open an apartment zone is publicly announced pursuant to Article 20 (2) of the former Housing Construction Promotion Act, matters to be determined by an urban planning under the former Urban Planning Act among the matters to be announced are deemed to have been determined by an urban planning decision under the former Urban Planning Act. Since a road within an urban planning zone can be constructed only by urban planning under Article 2 (1) 1 (b), 3, or 16 of the former Urban Planning Act, a road within the urban planning zone shall be deemed to have been determined to be determined to be 9194.

(2) 이 사건으로 돌아와 살피건대, 갑12호증의 1 내지 9, 갑13 내지 17호증, 을1 내지 23호증의 각 기재에 변론 전체의 취지를 종합하면, 1976. 12. 9. 건설부고시 제198호로 이 사건 사업구역을 포함한 부산 남천동 일대 및 해면매립지 총면적 399,340 m를 남천아파트지구로 지정하는 도시계획결정이 고시되고, 이어 1977. 2. 1. 부산시고시 제1491호로 위 도시계획결정에 따른 지적승인 고시가 된 사실, 그 후 1985. 1. 8. 부산직할시고시 제301호로 위 남천아파트지구 399,340㎡를 총 3개의 지구[1지구 87,562㎡(이 사건 사업구역 일대이다), 2지구 130,833m, 3지구 162,632m²]로 구분하고, 1지구 면적 87,562m² 중 18,936㎡와 2지구 면적 130,833m² 중 22,452㎡ 및 3지구 면적 162,632㎡ 중 15,463㎡를 도로용지로 이용하기로 하는 내용의 남천아파트지구개발기본 계획이 구 주택건설촉진법 제20조 제2항의 규정에 의하여 고시된 사실, 위 남천아파트 지구개발기본계획에 따라 당시 위 남천아파트지구개발사업의 시행자이던 주식회사 ▼주택은 위 남천아파트지구 중 1지구 내에 이 사건 재건축사업 대상인 위 기존 아파트를 건축 분양함과 아울러 앞서 본 바와 같이 위 기존 아파트 단지의 외곽도로 및 중앙도로의 역할을 하는 이 사건 도로를 설치한 뒤, 그 무렵 이 사건 도로를 피고에게 기부채납한 사실, 그 후 이 사건 재건축사업의 시행을 위한 원고의 지구단위계획 입안요청에 따라 피고는 2004. 11. 4. 부산광역시 고시 제2004-289호, 같은 달 18. 부산광역시 고시 제2004-311호로 이 사건 사업구역 일대를 국토계획법상 제1종 지구단위계획구역으로 지정하고 이 사건 재건축사업의 시행에 필요한 용적률 확보를 위하여 이 사건 도로 전부를 용도폐지(그 후 2005. 9. 14. 부산광역시 고시 제2005-258호로 이 사건 도로 전부가 아니라 위 도로 중 7,790만을 용도폐지하는 것으로 정정고시되었다) 한다는 내용의 도시관리계획결정 및 지형도면승인 고시를 하고, 이어 2005. 1. 26. 부산광역시 고시 제2005-23호로 위 남천아파트지구를 도시정비법상 주택재개발 정비사업구역으로 변경지정한 사실, 그 후 앞서 본 2005. 7. 15.자 부산광역시 수영구청장의 이 사건 재건축사업의 시행인가 이후 앞서 본 바와 같이 2005. 10. 31. 이 사건 토지 4,876m가 이 사건 도로 19,823m에서 분할되어 그 무렵 대지로 지목이 변경되었고, 이어 이 사건 재건축사업의 시행으로 인하여 이 사건 도로 19,823㎡ 중 이 사건 사업구역에 편입된 이 사건 토지 4,876㎡가 용도폐지된 정비기반시설인 것으로 되어 있는 원고의 관리처분계획이 부산광역시 수영구 고시 제2005-42호로 인가고시된 사실을 인정할 수 있는바, 위 인정사실을 앞서 본 법리에 비추어 보면, 구 주택건설촉진법 제20조 제2항에 의하여 1985. 1. 8. 부산직할시고시 제301호로 이 사건 사업구역이 포함된 남천아파트지구개발기본계획이 고시되고 위 기본계획에 따라 위 남천아파트지구 내에 이 사건 도로가 설치되었으므로, 이 사건 도로에 관하여는 구 주택건설촉진법 제20조 제2항, 제22조 제1항, 구 도시재개발법 제5조 제7항, 구 도시계획법 제2조 제1항 제1 호 (나)목, 제3호, 제16조의 각 규정에 의하여 구 도시계획법상 도시계획결정이 있었던 것으로 보아야 할 것이고, 국토계획법(2002. 2. 4. 법률 제6655호로 제정되어 2003. 1. 1.부터 시행된 것) 부칙 제15조 제1항은 “이 법 시행 당시 종전의 도시계획법에 의한 도시계획시설은 이 법에 의한 도시계획시설로 본다”고 규정하고 있으므로, 이 사건 도로는 이 사건 재건축사업의 시행 이전에 이미 구 도시계획법 및 국토계획법에 의하여 도시관리계획으로 결정되어 설치된 정비기반시설에 해당한다 할 것인바, 그 후 이 사건 재건축사업의 시행으로 인하여 이 사건 도로 중 이 사건 사업구역에 편입된 이 사건 토지가 분할되어 용도폐지되었으므로, 결국 이 사건 토지는 도시정비법 제65조 제2 항 후단의 무상양도대상인 “정비사업의 시행으로 인하여 용도가 폐지되는 국가 또는 지방자치단체 소유의 정비기반시설”에 해당한다 할 것이다.

C. Whether the instant sales contract was null and void

(1) The former part of Article 65(2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for the purpose of uniformly determining the status of a project implementer in the future by prescribing the ownership relationship of public facilities, etc. in a project district, rather than to deprive or restrict a project implementer’s property rights. The purport of the latter part is that the maintenance infrastructure newly installed by a private project implementer is a mandatory provision.

Considering the project implementer's property loss caused by gratuitous reversion to the management authority, the latter part of the provision is a mandatory provision compelling the transfer of the infrastructure for rearrangement to be abolished within the extent equivalent to the installation cost of the newly installed infrastructure for rearrangement to the project implementer within the extent equivalent to the project implementer's new installation cost. In light of the legislative intent of the provision, the latter part of the provision is a compulsory provision compelling a private project implementer to gratuitously transfer the infrastructure for rearrangement to be disused within the extent equivalent to the installation cost of the newly installed infrastructure for rearrangement (see, e.g., Supreme Court Decision 2007Du6663, Jul. 12, 2007). The sales contract, etc. concluded between the project implementer and the State or local government in violation of the latter part of the provision of the latter part of Article 65 (2) of the Act on the Maintenance and Improvement of Urban Areas, as recognized above, is null and void for the plaintiff to purchase the land without compensation in violation of the latter part of the above provision of Article 65 (2) of the Act.

(2) On this issue, the defendant alleged that the sales contract of this case was concluded under the conditions added to the approval of the implementation of the reconstruction project of this case on July 15, 2005, and the above approval conditions, which are administrative disposition, do not constitute a case of invalidity due to significant and apparent defects, and since there was no legal revocation by any other competent authority, the sales contract of this case, which was made as part of the implementation of the above approval conditions, has become final and conclusive. However, the defendant's assertion that the sales contract of this case, which was made as part of the implementation of the above approval conditions, has become final and conclusive. However, if there had already been a dispute over the period of filing a lawsuit, it cannot be denied its validity unless it is significant and obvious that the defects were determined as the period of filing a lawsuit, and the legal act, such as the sale and purchase under private law, which was made as the implementation of the burden, is separate from the administrative disposition imposing a burden, and therefore the issue of non-performance of such burden can not be determined separately from whether the legal act violates social order or compulsory provisions.

D. Scope of return of unjust enrichment

Furthermore, with respect to the scope of unjust enrichment to be returned to the Defendant, the latter part of Article 65(2) of the Act on Special Cases Concerning the Maintenance and Improvement of Urban Areas provides that the State or a local government’s fundamental infrastructure, which is ceased to be used 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. The Plaintiff’s total installation cost of roads and parks, which are fundamental infrastructure under the Act on the Maintenance and Improvement of Urban Areas, when implementing a reconstruction project of this case, is equivalent to KRW 7,868,35,195, and the Plaintiff’s payment to the Defendant of KRW 7,204,50,00 with the purchase price of the instant land subject to transfer under the Act on Special Cases Concerning the Maintenance and Improvement of Urban Areas, as seen above. It is difficult to view that the Plaintiff’s new installation cost of the instant fundamental infrastructure exceeds the purchase price of the instant land under the Act on Special Cases Concerning Construction and Improvement of Urban Areas from 00 to 30%.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.