2018Da285953 Compensation for damages

A

Law Firm (LLC) LLC, Attorney Park Jong-il, Counsel for the plaintiff-appellant-appellant

Quasi-Decree, Park Jong-min

Seodaemun-gu Seoul Metropolitan Government

Attorney Yu-sik, Counsel for the defendant-appellant

Seoul Western District Court Decision 2018Na36681 Decided October 25, 2018

November 14, 2019:

The judgment below is reversed, and the case is remanded to the Seoul Western District Court.

The grounds of appeal are examined.

1. A. Article 91(1) of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (amended by Act No. 11017, Aug. 4, 201; hereinafter “Land Compensation Act”) provides, “Where all or part of the acquired land becomes unnecessary due to the discontinuation or alteration of the relevant project within 10 years from the date of acquisition of land through consultation or expropriation, or other causes, the owner of the land at the time of the acquisition date or his/her general successor may repurchase the land by paying to the project operator an amount equivalent to the compensation paid for the relevant land, within one year from the date the whole or part of the relevant land becomes unnecessary, or within 10 years from the date the land is acquired through consultation or expropriation.” The term “relevant project” as stipulated in the foregoing provision refers to a specific specific project that has become the purpose of the acquisition through consultation or expropriation of the land, and “when the whole or part of the acquired land becomes unnecessary” means a case where the project operator no longer needs to use the land for the purpose of acquisition through consultation or expropriation.

B. Meanwhile, Article 91(6) of the Land Compensation Act, which provides for "the conversion of public works to which the exercise of the right of repurchase is restricted," was amended and implemented by Act No. 10239 on April 5, 2010, includes "the project on the construction of housing or the creation of housing sites conducted by the State, local governments, government-invested institutions, local public enterprises, or persons designated by the State or local government for the purpose of lease or transfer" as the object of "the conversion of public works."

2. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

A. On June 25, 2004 and May 12, 2005, the defendant head of the Gu announced the implementation plan of the urban planning facility project (parking lot) project to resolve the parking shortage in the area where multi-household housing is concentrated (Seomun-gu Notice B), and publicly announced the authorization of the implementation plan of the urban planning facility project (Seodae-gu Notice C).

B. On September 9, 2005, the Defendant obtained a consultation on the instant land owned by the Plaintiff, which was incorporated into the said project site, and on October 31, 2006, set up a public parking lot E in the instant land, etc. E (hereinafter “instant public parking lot”). On October 19, 2006, the Mayor of the Seoul Special Metropolitan City designated the Seodaemun-gu G G class, including the instant land, as an urban renewal acceleration district (the Seoul Special Metropolitan City notificationF), and publicly announced the “I alteration of the alteration of the urban renewal acceleration district and urban renewal acceleration plan” as to the relevant area including the instant land on February 5, 2008 (the Seoul Special Metropolitan City public notification H; hereinafter “instant renewal acceleration plan”). The promotion plan of the instant parking lot included details that abolish the instant parking lot.

D. On March 31, 2009, the defendant head of the Gu publicly notified the approval of the project implementation of the Housing Redevelopment Improvement Project (hereinafter referred to as the "Redevelopment Project in this case") of the "K Urban Renewal Promotion Zone" (hereinafter referred to as the "Redevelopment Project in this case"), and on March 3, 2010, publicly notified the approval plan for the management and disposal of the K Renewal Promotion Zone (Seomun-gu L).

E. After that, K Urban Renewal Promotion Zone removed the instant parking lot around the end of 2013. At present, the instant land is being utilized as a vacant lot with a public sports organization, etc. as part of apartment complex.

3. A. Examining the foregoing facts in light of the legal principles as seen earlier, even if the renewal acceleration plan of the instant case, including the details of the closure of the instant public parking lot, or the authorization to implement the redevelopment project of the instant land was publicly announced, it is difficult to readily conclude that the public parking lot head of the instant public parking lot actually ceased to exist until the end of April 5, 2013, and rather, there is sufficient room to regard the objective time when the instant land becomes unnecessary for the parking lot project as urban planning facilities, as the end of 2013, when the public parking lot of the instant case was actually demolished. Furthermore, if the Plaintiff’s repurchase right was created as of the end of April 5, 2010 when the public parking lot of the instant public parking lot was actually demolished, it may be deemed that the redevelopment project of the instant case falls under the “project on the construction of housing, or the formation of housing sites, implemented by the person designated by the local government,” and there is room to limit the Plaintiff’s repurchase right pursuant to Article 91(6) of the Land Expropriation Act.

B. Nevertheless, the lower court upheld the first instance judgment that accepted the Plaintiff’s claim on the premise that the instant land was no longer necessary for the parking lot business, and around that time, the instant renewal promotion plan, including the closure of the instant public parking lot. In so doing, the lower court erred by failing to exhaust all necessary deliberations, or by misapprehending the legal doctrine on the possibility of applying Article 91(6) of the Land Compensation Act, which affected the conclusion of the judgment, on April 5, 2010, concerning the time when the instant land became unnecessary for the parking lot business, when a repurchase right was created, when the instant land became unnecessary for the parking lot business, when the repurchase right was created, whether the instant redevelopment business constitutes a public project under Article 4 subparag. 5 of the Land Compensation Act, whether the redevelopment project constitutes a redevelopment right under Article 91(1) of the Land Compensation Act, which was amended

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok

Justices Noh Jeong-chul

Chief Justice Noh Jeong-hee

Justices Kim In-bok