[1] Whether it is legitimate for an implementer, who received project implementation authorization under the former Urban Redevelopment Act or the Act on the Maintenance and Improvement of Urban Areas and Residential Environments, to occupy and use the land or the ground water within the redevelopment project execution district to obtain the expropriation or use procedures as stipulated in the said Act, etc. or to implement the redevelopment project without obtaining the consent of the owner (negative)

[2] The legal relationship in a case where the owner of the land, etc. within the redevelopment project execution zone under the former Urban Redevelopment Act renounces the use of and profit from the land, etc. or consents to the use of the land, etc. before the approval and public notice of the management and disposal plan

[3] In a case where the owner who consented to the use of the land, etc. within the redevelopment project district under the former Urban Redevelopment Act has terminated the loan of use on the ground that the period sufficient for the use and profit-making of the previous project implementer has expired, the requirements for the lawful possession and use of the land, etc. and the standard for determining whether the new project implementer has expired sufficient period of time

[1] Articles 22 (see current Article 28 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Act No. 6852, Dec. 30, 2002), 31 (1) (see current Article 38 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents), 32 (see current Article 40 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents), 34 (8) (see current Article 49 (6) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents) / [2] Articles 22 (see current Article 28 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Act No. 6852, Dec. 30, 200), 34 (8) (see current Article 49 (6) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents / [3] Article 613 (2) of the Civil Act, Article 20

[1] Supreme Court en banc Decision 91Da22094 delivered on December 22, 1992 (Gong1993Sang, 540) / [2] Supreme Court Decision 2009Da2228, 235 delivered on March 26, 2009 (Gong2009Sang, 571) / [3] Supreme Court Decision 93Da36806 delivered on November 26, 1993 (Gong194Sang, 198), Supreme Court Decision 94Da56371 Delivered on March 14, 1995 (Gong195Sang, 1606) (Gong2369 delivered on July 24, 2001)

Plaintiff (Law Firm Gyeong & Yang, Attorneys Seo Gyeong-sung et al., Counsel for the plaintiff-appellant)

Defendant corporation

Seoul High Court Decision 2007Na16917 decided October 16, 2007

The part of the lower judgment against the Plaintiff regarding the claim for payment of money is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. Even if an implementer has obtained authorization to implement a redevelopment project under the former Urban Redevelopment Act (amended by Act No. 6852 of Dec. 30, 2002) or the Urban and Residential Environment Improvement Act (hereinafter “Urban Improvement Act”), it cannot be said that the implementer has directly acquired the right to use, profit from, etc. the land or the ground in the redevelopment project execution zone only before the authorization and public notice of the management and disposal plan is given (Article 34(8) of the former Urban Redevelopment Act, Article 49(6) of the Urban Redevelopment Act), and the project implementer has obtained the expropriation or use procedure, etc. on condition that the landowner compensates for, or compensates for, losses (see, e.g., Articles 31 and 32 of the former Urban Redevelopment Act, Article 38 and Article 40 of the Urban Redevelopment Act, etc.) or on condition that the land or the ground water is occupied and used for the redevelopment project without the consent of its owner, such as the land (see, e.g., Supreme Court en banc Decision 2002Da9292.).

On the other hand, if the right of use and profit belonging to the core power of ownership can be renounced in a timely and permanent manner by the owner, this is ultimately contrary to the legal principle of real rights since only the right of disposal has created a new type of ownership that remains. Therefore, barring any special circumstance, it cannot be permitted, and even if the party renounced the right of use and profit, it is reasonable to deem that the other party has renounced the other party's right of use and profit, and if that purport is to temporarily recognize the other party's use and profit, it is not different from the contractual relationship of the loan of use (see Supreme Court Decision 2009Da228, 235, Mar. 26, 2009). Such legal principle equally applies to cases where the owner of land, etc. waives the use of and profit from the land, etc. or has consented to the use of the land, etc. so that the project implementer can implement the project before

According to Article 6 of the former Urban Redevelopment Act and Article 10 of the Urban Redevelopment Act, when there is a change of the owner of the land, etc., the rights and duties relationship between the former project implementer and the former owner of the land, etc. may be deemed succeeded to the relationship with the former project implementer or the former owner of the land, etc.. Therefore, in cases where a loan for use is concluded between the former project implementer and the former project implementer in lieu of the expropriation or use procedure for the implementation of a redevelopment project, barring any special circumstance, such loan for use may be deemed succeeded to the relationship with the new project implementer or the new owner of the land, etc.: Provided, That under Article 613(2) of the Civil Act, if the term of existence is not determined for the loan for use, the borrower shall return the object when the use or profit-making of the land has been completed by the nature of the contract or the object, and even if the period sufficient for the use or profit-making has elapsed due to the said reasons, the lender may request the return of the leased object at any time, and the new land owner shall be deemed to have no more than 9.

2. According to the reasoning of the judgment below and the records, 254.6 shares in the land of this case 1, and 24.85 shares in the land of this case 2, which were owned by the Plaintiff at the time of 2,000, to the Defendant for the alteration of the land of this case 1 and 2, to the Defendant for the alteration of the land of this case 2, including the Plaintiff’s construction project operator, within the 1,000 square meters after delivery of the land of this case to the Defendant for the alteration of the land of this case 1 and 3, and the alteration of the land of this case to the 9,000 square meters within the 1,000 square meters of the land of this case to the Defendant for the alteration of the 9,000 square meters of the land of this case to the 2,000,000 square meters of this case to the 1,000,0000 square meters of the land of this case to the 1,1993.

In light of the above legal principles and the above facts, the Plaintiff, a co-owner of the land Nos. 1 and 2 of this case, consented to the use and profit-making of the land Nos. 1 and 2 of this case without fixing a period for executing construction for the implementation of the redevelopment project. However, such circumstance alone does not lead to the Plaintiff’s refusal of the use and profit-making right to the land Nos. 1 and 2 of this case to the extent that ○○ Development, a project developer, waivers the right to use and profit-making right to the land Nos. 1 and 2 of this case, or grants the right to use and profit-making right to use and profit-making right to the land for the smooth implementation of the redevelopment project. It is reasonable to view that the legal nature of the land, etc. is a loan for use under the general civil law without fixing a period, unless there are special circumstances such as the Plaintiff’

However, it is reasonable to view that ○○ Construction, upon the authorization of the project operator on February 25, 1993, passed since ○○○ Development and the Plaintiff succeeded to the loan of use with the Plaintiff, etc., without properly implementing the redevelopment project, and the trust relationship with the Plaintiff, including the Plaintiff had been broken up for a long period of time. Moreover, if the instant redevelopment project had been implemented normally on July 1999, it can be deemed that the period of time has already elapsed for using and gaining profits from the land, etc. if the instant redevelopment project had been implemented normally. Thus, the loan of use for the first, second, etc. between the Plaintiff, etc. and ○○ General Development between the Plaintiff, etc. was decided to establish the redevelopment association and replace the project operator by removing the trust relationship with the Plaintiff, at least the construction of ○○○○ Construction with the capacity to implement the redevelopment project, and that the Plaintiff’s application for the authorization of modification was terminated by the competent government agency on July 21, 199.

Therefore, the Plaintiff is a co-owner of the instant land Nos. 1 and 2 from September 26, 2003 to the authorization and public notice of the management and disposal plan concerning the instant redevelopment project from September 26, 2003, and the Plaintiff has the right to directly use and profit from the instant land Nos. 1 and 2. Even if the Defendant received the instant construction site from Daewoo Construction around April 19, 2005 and obtained the authorization of the project operator around July 28, 2005, there is no relationship between the Plaintiff and the Plaintiff entitled to receive the succession from the ○○ General Construction or Daewoo Construction. Thus, the Plaintiff’s illegal possession that infringes the Plaintiff’s right to use and profit from the instant land, such as obtaining the procedure for expropriation or use of the instant land Nos. 1 and 2 or obtaining the new consent from the Plaintiff.

Nevertheless, the lower court determined to the effect that even if the Plaintiff, a co-owner of the instant land Nos. 1 and 2, voluntarily renounced the right to use and benefit from the instant land Nos. 1 and 2 for the implementation of the redevelopment project on or around December 18, 191, and barring special circumstances, such as the revocation of the authorization for the instant redevelopment project and the authorization for the modification of the project implementation, etc., the execution of the instant redevelopment project is delayed, or the Plaintiff notified Daewoo Construction around September 15, 2003 as the owner of the instant land, etc., he cannot seek compensation or return of unjust enrichment from the possession and use of the instant land Nos. 1 and 2. In so doing, the lower court erred by misapprehending the legal doctrine on the waiver of the landowner’s right to use and benefit from the redevelopment project, which affected the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

3. Therefore, the part of the judgment below against the plaintiff regarding the claim for payment of money is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)