[1] The meaning of infrastructure to be gratuitously reverted to the State or a local government under the former part of Article 65(2) of the former Act on the Maintenance and Improvement of Urban Areas

[2] In a case where a reconstruction housing association obtained approval of a project plan for a reconstruction project pursuant to the former Housing Construction Promotion Act prior to the implementation of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the case affirming the judgment below holding that the expenses equivalent to the above expenses for installation of public reports should be excluded from the scope of expenses for installation of public reports within the scope of the local government-owned infrastructure owned by the local government, which is gratuitously transferred to the association pursuant to the latter part of Article 65 (2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, on the ground that the "maintenance infrastructure" to be gratuitously reverted to the local government pursuant to the former part of Article 65

[3] The validity of approval of a project plan under the former Housing Construction Promotion Act where a person who intends to obtain approval of a project plan submits to the relevant administrative agency documents stating matters concerning the attribution of public facilities newly installed in the project district

[4] In a case where a reconstruction association which obtained approval of a project plan pursuant to the former Housing Construction Promotion Act before the enforcement date of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents did not specify that public reports newly installed at the time of application for approval of a project plan are public facilities to be reverted to a local government, the case holding that the above public reports cannot be deemed as having been decided

[1] Article 65(2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7392, Mar. 18, 2005; hereinafter “Urban Improvement Act”) provides that “The maintenance infrastructure newly installed by a maintenance project implementer who is not the head of a Si/Gun or a housing construction project implementer in the course of implementing an improvement project shall gratuitously vest in the State or a local government which manages such infrastructure, and the maintenance infrastructure owned by the State or a local government which is ceased to be used as a result of the implementation of an improvement project shall be gratuitously transferred to the project implementer within the extent equivalent to the installation cost of the newly installed maintenance infrastructure.” Thus, the maintenance infrastructure gratuitously reverted to the State or a local government under the former part of the said Act shall be newly installed due to the implementation of an improvement project. According to Article 28(1) and Article 30 subparag. 2 of the Urban Planning and Utilization Act, if an implementation of an improvement project is to be conducted under the National Land Planning and Utilization Act, the installation plan shall be in accordance with the improvement project plan under the National Land Planning and Utilization Act, and Utilization Act.

[2] In a case where the reconstruction housing association obtained approval of a reconstruction project pursuant to the former Housing Construction Promotion Act (wholly amended by Act No. 6919 of May 29, 2003) before the enforcement of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7392 of March 18, 2005, hereinafter “Urban Improvement Act”), the case affirming the judgment below holding that the “maintenance infrastructure facilities” to be gratuitously reverted to a local government pursuant to the former part of Article 65(2) of the Urban Improvement Act is limited to the infrastructure newly established by the urban management planning decision under the former National Land Planning and Utilization Act (amended by Act No. 7470 of March 31, 2005, hereinafter “National Land Planning Act”), and thus, it cannot be deemed that there was a public report that was not donated with pedestrian recording, and that there was a decision corresponding to the installation cost of the urban planning committee and the approval of the project plan of the association under the National Land Planning Act.

[3] According to Articles 33(1), 33(4)1, 12, and (8) of the former Housing Construction Promotion Act (wholly amended by Act No. 6919 of May 29, 2003; hereinafter “State Promotion Act”), Article 32(2)6 of the former Enforcement Decree of the Housing Construction Promotion Act (wholly amended by Presidential Decree No. 18146 of Nov. 29, 2003), Article 65(2) of the former National Land Planning and Utilization Act (wholly amended by Act No. 7470 of Mar. 31, 2005; hereinafter “National Land Planning Act”), where a person who has obtained approval of a project plan under the State Promotion Act installs new public facilities within a project district, such public facilities shall be reverted to the State or a local government without compensation, and the person who has to obtain approval of a project plan shall be deemed to have accrued to the State or a local government or to have obtained approval of a project plan under the National Land Planning Act.

[4] In a case where a reconstruction association, which obtained approval of a project plan pursuant to the former Housing Construction Promotion Act (wholly amended by Act No. 6919 of May 29, 2003) before the date of implementation of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (wholly amended by Act No. 6852 of December 30, 2002), did not specify that a public report newly installed at the time of application for approval of a project plan is a public facility to be reverted to a local government, the case holding that in the approved project plan, the above public report is still included in the reconstruction project site of the association, but is expected to be a private road to be actually constructed for general traffic, and thus, it cannot be deemed that there was a decision on an urban management plan concerning infrastructure under the former National Land Planning and Utilization Act (wholly amended by Act No. 7470 of March 31, 2005)

[1] Article 28(1), Article 30 subparag. 2, and Article 65(2) of the former Enforcement Decree of the Housing Act (amended by Act No. 7392, Mar. 18, 2005); Article 1 of the Addenda (amended by Presidential Decree No. 30, Dec. 30, 2002); Article 2 subparag. 4, (d), and subparagraph 11 of the former Enforcement Decree of the Housing Act (amended by Act No. 7470, Mar. 31, 2005) / [2] Article 28(1), Article 30 subparag. 1, Article 65(2) of the former Enforcement Decree of the Housing Construction Promotion Act (amended by Act No. 7392, Mar. 18, 2005); Article 9 subparag. 1, 207 of the former Enforcement Decree of the Housing Act (amended by Act No. 970, Dec. 30, 2002)

Allied Rebuilding Housing Association (1, 3 complexes) (Law Firm Bochip, Attorneys Clinical Hun-Ga et al., Counsel for the defendant-appellant)

Yangcheon-gu Seoul Metropolitan Government (Bae, Kim & Lee LLC, Attorneys Jeong Ho-young et al., Counsel for the defendant-appellant)

Supreme Court Decision 2008Da20751 Decided June 11, 2009

Seoul High Court Decision 2009Na51952 decided November 12, 2009

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined (to the extent of supplement for supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

Article 65(2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7392, Mar. 18, 2005; hereinafter “Urban Improvement Act”) provides that “The maintenance infrastructure newly installed by a project implementer who is not the head of a Si/Gun or a housing project implementer to implement an improvement project shall gratuitously vest in the State or a local government to manage such infrastructure, and the maintenance infrastructure owned by the State or a local government, which is ceased to be used as a result of the implementation of an improvement project, shall be transferred gratuitously to the project implementer to the extent equivalent to the installation cost of the newly installed maintenance infrastructure.” Thus, under the former part of Article 28(1) and Article 30 subparag. 2 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7392, Mar. 18, 2005; hereinafter “Urban Improvement Act”) which gratuitously belongs to the State or a local government under the National Land Planning and Utilization Act (amended by Act No. 20371, Apr. 71, etc.).

According to the reasoning of the judgment below, the court below determined that in the reconstruction project of this case where the approval of the project plan was approved pursuant to the former Housing Construction Promotion Act (wholly amended by Act No. 6916 of May 29, 2003, hereinafter "the Housing Promotion Act"), the "maintenance infrastructure" to be gratuitously reverted to the defendant under the former part of Article 65 (2) of the Urban Planning Act is limited to the infrastructure newly installed by the determination of the urban planning plan under the National Land Planning and Utilization Act, it cannot be deemed that there was a decision of the urban planning committee's deliberation on the public report of this case where the public report of this case was not donated only with pedestrian record and the approval of the project plan of the defendant did not constitute the infrastructure designated and installed by the determination of the urban planning plan under the National Land Planning and Utilization Act, since there was no other evidence to view that the public report of this case constitutes the infrastructure designated and installed by the urban planning plan under the National Land Planning Act, the part corresponding to the cost of the public report of this case should be excluded.

In light of the above legal principles, the above judgment of the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to gratuitous transfer or attribution of infrastructure under the Act on the Maintenance of Urban Areas and Dwelling Conditions for Residents, or in violation

2. Regarding ground of appeal No. 2

According to Article 33(1), (4)1, 12, and (8) of the Jeju Promotion Act, Article 32(2)6 of the Enforcement Decree of the same Act (wholly amended by Presidential Decree No. 18146, Nov. 29, 2003); and Article 65(2) of the National Land Planning and Utilization Act, where a person who has obtained approval of a project plan pursuant to the Jeju Promotion Act installs new public facilities in a project district, such public facilities are reverted to the State or a local government without compensation. Thus, a person who intends to obtain such approval of a project plan shall submit a document stating matters concerning the reversion of public facilities to the relevant administrative agency, and if he/she obtains approval of a project plan, he/she shall be deemed to have made a decision under the National Land Planning and Utilization Act only on infrastructure, or to have obtained permission to open a private road pursuant to Article 4 of the Private Road Act

However, according to the records, at the time when the plaintiff obtained approval of a project plan on June 30, 2003 pursuant to the State Promotion Act, which was before the date of the enforcement of the Urban Improvement Act, it cannot be found that the plaintiff applied for approval of a project plan by specifying that the public report of this case is a public facility to be reverted to the defendant, and rather, when examining the approved project plan, the public report of this case is still included in the plaintiff's reconstruction project site, but it can be found that the public report of this case was an actual private road to be offered for the general traffic, and thus, it cannot be deemed that there was an urban management plan decision on the public report of this case. Accordingly, even if the court below omitted its decision, it cannot be deemed that there was a decision on the urban planning

3. As to the third ground for appeal

The judgment of remand of this case is to apply the provisions of the former part of Article 65 (2) of the National Land Planning and Utilization Act (amended by Act No. 65 (2) of the National Land Planning and Utilization Act), rather than the provisions of the latter part of Article 65 (2) of the National Land Planning and Utilization Act (amended by Act No. 65 (2) of the National Land Planning and Utilization Act), that "public facilities whose purpose is abolished may be transferred gratuitously to a project operator within the extent equivalent to the installation cost of a new road constructed by a project operator, within the extent equivalent to the installation cost of a new road constructed by a new project operator." Thus, it is not to be deemed that the original decision of the court below should be invalidated to the effect that the new construction cost of a new road within the scope equivalent to the installation cost of a new road constructed by a project operator pursuant to the latter part of Article 65 (2) of the Urban Planning and Utilization Act should not be deemed to have been transferred without compensation to the project operator within the extent equivalent to the new installation cost of a new road installed by the Plaintiff under the latter part of Article 65 (2) of the Act.

4. Conclusion

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

Justices Kim Nung-hwan (Presiding Justice)