(영문) 대법원 2016.12.15.선고 2016다214339 판결

Of the judgment below, the part of the claim for cancellation of registration of preservation of ownership against the Defendant Heung Construction Corporation is reversed, and that part of the case is remanded to the Daegu High Court.

The appeal against the land partition rearrangement association of the defendant Yang Young-gu and the remaining appeal against the defendant Jung Jung Construction Co., Ltd. shall be dismissed.

The costs of appeal between the Plaintiff and the Defendant Gyeyang District Land Partition Association shall be borne by the Plaintiff.

Reasons

1. The grounds of appeal are examined.

A. According to the former Land Readjustment Projects Act (amended by Act No. 6252 of Jan. 28, 200, but the provisions of the Act prior to the abolition shall apply to a land readjustment and rearrangement project which meets the requirements of Article 2 of the Addenda; hereinafter referred to as the "Act prior to the repeal"), the "land readjustment and rearrangement project" in this Act (hereinafter referred to as the "divided and rearrangement project") means the "project for the exchange, division, or other alteration of land to be conducted under the provisions of this Act for the enhancement of utility as a site and the maintenance of public facilities" (Article 2 (1) 1); the "public facilities" means roads (limited to those that can enhance the utility of a site), parks, squares, rivers, elementary schools, middle and high schools, or other facilities for public use as prescribed by the Presidential Decree; the "national land readjustment and rearrangement project" in this Act means the land belonging to the State or the local government for which the State or the manager of the public facilities belongs to the land substitution and rearrangement project (Article 2 (1) 2); the State or the land ownership of the public facilities necessary due to be publicly announced.

The project implementer is obligated to pay the price for the acquisition of school sites to the project implementer. The reasons are as follows.

(1) At the time of the enactment of the Act, Article 2 of the Act does not include school sites in public facilities, while Article 63 was limited to the gratuitous reversion of the site for public facilities to the State, etc. However, as a result of an increase in the demand for school attendance accompanied by the division and rearrangement project, securing school sites necessary for compulsory education has emerged as an important task, it became a legislation to revise the originally bill to include the school site necessary for compulsory education in public facilities under Article 2, thereby allowing the State, etc. to secure the site, and to acquire it with compensation in addition to the proviso to

(2) Article 63 of the Act provides that the title of the public facility site belongs to “the ownership of the public facility site” and the main text of Article 63 provides for the subject and timing of the ownership ownership ownership of the public facility site, and does not limit the application to the public facility site that the State, etc. acquired without compensation, or does not exclude the school site. Thus, this ought to be deemed as being applied to the public facility site without

It is natural to view that the proviso of Article 63 of the Act provides that school intersections or market sites shall be paid for, in light of the method of composition of the provision, that the public facility site has provided exceptions to the general gratuitous reversion.

(3) The State has a duty to secure school sites appropriate for guaranteeing the fundamental rights of citizens to receive education and implementing compulsory education. Accordingly, the former Urban Planning and Utilization Act (wholly amended by Act No. 6655 of Jan. 1, 200, Jan. 28, 200) provides that a plan to establish schools, etc. within an urban planning zone shall be determined by urban planning (Article 2(1)1 (b)), and the Act provides that “The plan for the rearrangement project shall be appropriate for the plan for the public facilities and other facilities determined by urban planning and shall be determined in consideration of ensuring school sites necessary for the education of elementary schools and middle and high schools.” In addition to Article 63 of the Act on Ownership of the above public land, in the case of the rearrangement project, it shall be determined by taking into account the purport that the establishment of school sites within the rearrangement project zone shall vest in the right to manage and ownership at the time of a land substitution disposition, thereby causing interference with the State’s duty to dispose of the land to third parties after the implementation of a replotting disposition, etc.

(4) Article 54 (1) of the Act provides that "The developer may appropriate the expenses for the compartmentalization and rearrangement project or determine them as the land secured by the authorities in recompense of development outlay or the reserved land for the purposes set forth in the regulations, articles of incorporation, implementation rules, or business plan for the purposes set forth in the replotting plan, without designating a certain land as the substitute land in the replotting plan," and Article 62 (6) provides that "the developer shall acquire the ownership of the land secured by the authorities in recompense of development outlay under Article 54 (excluding the one already disposed under Article 57 (4)), the reserved land

Here, reserved land includes land not designated as substitute land for the purpose of the regulations, articles of incorporation, implementation rules, or business plan other than business expenses (see, e.g., Supreme Court Decision 2005Du333, Sept. 14, 2006). However, school bridge land is an urban planning facility and public facility. Thus, land designated as school site in a replotting plan is only reserved land and cannot be deemed as land secured by the project implementer’s acquisition of ownership on the following day of the public announcement of a replotting plan. Therefore, it is reasonable to view school site as having acquired ownership by the State, etc. as stipulated in a replotting plan, just as other reserved land.

The acquisition of school sites by the State, etc. cannot be deemed different from the acquisition of the school sites is for consideration. If the acquisition of school sites is for consideration and it is treated as the land secured by the authorities in recompense for development outlay, it can be arbitrarily disposed of by the project implementer, which is a public facility site, in order to meet the project cost, and may be contrary to the purpose and purpose designated as a land substitution plan for public purposes in the land substitution plan. In addition, it is not consistent with the purport of the law that intended to clearly and clearly define the ownership ownership by changing the original acquisitor depending on whether

(5) The alteration of a right by means of a land substitution disposition, which takes place through a land substitution disposition, is not effective in a land substitution disposition, but pursuant to the provisions of law (see Supreme Court Decision 90Meu22575, Jun. 14, 1991). It is clear that the State, etc. acquires the ownership of a school site by means of a change in real rights under Article 63

B. The reasoning of the lower judgment reveals the following facts.

(1) The Defendant Gyeyang-gu Land Partition Association (hereinafter referred to as the “Defendant Association”) was authorized to implement the land readjustment project of 199, 6, and 8. An association established for the implementation of the land readjustment project of Gyeyang-gu, Seoul (hereinafter referred to as the “instant project”).

(2) On October 8, 199, the Defendant Union authorized the substitution plan designated by the competent authorities for the land substitution plan designated as school sites (prolonged to be established in Gyeyang-dong, Chungcheongnam-dong, Chungcheongnam-dong, North Korea), and registered the land as the owner of the land above the Defendant Union in the land secured by the authorities in recompense for development outlay.

(3) On March 14, 2008, the Defendant Association sold the above land to the Defendant Heavy Construction Co., Ltd. (hereinafter “Defendant Company”) and registered the Defendant Company as its owner on the same day in the register of land allotted by the authorities in recompense for development outlay on the same day.

(4) On January 12, 2011, the Defendant Union obtained authorization for change of a land substitution plan including the change of the planned site for establishment of Yangyang Middle School into 2027,510 meters (hereinafter “instant land”) from the north-dong-dong 2027, Gyeyang-dong at the port and publicly announced the land substitution plan on January 25, 201.

(5) On February 28, 2013, Defendant Company completed registration of ownership preservation in its name on the instant land.

C. Examining the above facts in light of the legal principles as seen earlier, since the instant land was designated as a school site necessary for the education of elementary schools, middle schools, and high schools in the instant land substitution plan, it constitutes “land for use of public facilities” as referred to in the main sentence of Article 63 of the Act. Therefore, barring any other special circumstance, the Plaintiff should be deemed to have acquired the instant land at once on the following day of the public notice of land substitution disposition. Therefore, the registration of ownership preservation in the name of the Defendant Company as to the instant land

Nevertheless, the lower court rejected the Plaintiff’s claim for cancellation of registration of initial ownership of the Defendant Company on the erroneous premise that even if land is designated as a school site in a land substitution plan, the State, etc. fails to make reasonable compensation until the public announcement date of a land substitution disposition, the Plaintiff cannot acquire ownership of the land. In so doing, the lower court erred by misapprehending the legal doctrine on reversion of ownership of the land designated as a school site

Meanwhile, in addition to the claim for cancellation of registration of preservation of ownership of the Defendant Company, the Plaintiff sought against the Defendants the cancellation of the owner’s name recorded on the register of land allotted by the authorities in recompense for development outlay. However, as long as the Plaintiff had already been publicly announced and the ownership of the instant land was originally acquired, it cannot be said that there is no benefit to seek cancellation of registration in the register of land allotted by the authorities in recompense for development outlay

2. Although the Plaintiff filed an appeal as to the claim for confirmation of existence of ownership, the Plaintiff did not indicate the grounds of appeal as to the petition of appeal and the grounds of appeal.

3. Therefore, of the judgment below, the part of the claim for cancellation of registration of ownership preservation against the defendant company is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiff's appeal against the defendant union and the remaining appeal against the defendant company are dismissed, and the costs of appeal arising between the plaintiff and the defendant union are assessed against the losing party. It is so decided as per