[1] In a case where the cost of installing newly installed infrastructure by a project implementer under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents exceeds the value of the fundamental infrastructure owned by the State or a local government where the cost of installing newly installed infrastructure is abolished, whether the project execution authorizing agency may exclude part of the fundamental infrastructure owned by the State or

[2] In a case where a project implementer files a lawsuit seeking the cancellation of the part excluding a specific fundamental infrastructure subject to gratuitous transfer in the project implementation authorization disposition and the subsequent disposition of additional burden or modification disposition owned by the State or a local government subject to gratuitous transfer, the starting point and the method of determining the period of filing the lawsuit

[1] The maintenance infrastructure newly installed by a project implementer under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (excluding the head of a Si/Gun or the Korea Land and Housing Corporation or a local government-invested public corporation) as a result of the implementation of an improvement project (hereinafter “new infrastructure”) shall gratuitously vest in the State or a local government to manage the infrastructure (hereinafter “the State, etc.”), and the maintenance infrastructure owned by the State, etc. (hereinafter “previous infrastructure”) shall be gratuitously transferred to the project implementer to the extent equivalent to the installation cost of new infrastructure (see Article 65(2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9045, Mar. 28, 2008)). Therefore, in cases where the installation cost of new infrastructure exceeds the value of the previous infrastructure whose use is abolished, the previous infrastructure shall be entirely transferred to the project implementer, and thus, it is unlawful to exclude part of it from the project implementation authorization authorization subject to free transfer through an implementation

[2] In applying for authorization to implement a project, in light of the fact that a project implementer is required to submit an appraisal report on the protocol, drawing, and value of infrastructure for rearrangement, and a statement of installation cost of newly installed infrastructure for rearrangement, etc. [see Article 41 (2) 11 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 21679, Aug. 11, 2009)]. The subject and scope of infrastructure for rearrangement owned by the State or a local government (hereinafter “previous infrastructure”) subject to gratuitous transfer can be determined by examining the project implementation plan, etc. and adding an additional note that determines the previous infrastructure subject to gratuitous transfer and allow the purchase for consideration. However, where a separate decision is reserved after the authorization to implement a project, it may be determined differently by adding an additional charge or making a modification.

In this context, in a case where a project implementer files a lawsuit seeking the cancellation of the part excluding specific infrastructure subject to gratuitous transfer in the project implementation authorization disposition and the follow-up disposition or change disposition, the period of filing a lawsuit shall be based on the time when there is a disposition that contains an intention to exclude the administrative agency from the transfer without compensation. Moreover, the determination should be made by comprehensively taking into account all the circumstances, including whether the administrative agency’s intent is clearly expressed to the other party to the disposition through language, such as the statement of reasons for the relevant disposition,

[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. 9045 of March 28, 2008) / [2] Article 65 (2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9045 of March 28, 2008), Article 41 (2) 11 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 21679 of August 11, 2009), Article 20 (1) of the

5. Ad hoc Housing Redevelopment and Improvement Project Association (Attorney Park Il-il et al., Counsel for the plaintiff-appellant)

The head of Seongdong-gu Seoul Metropolitan Government (Law Firm Daeho, Attorney Kim Jong-tae, Counsel for defendant-appellant)

Seoul High Court Decision 2009Nu18419 decided July 20, 201

The part of the lower judgment regarding the ancillary claim is reversed, and that part of the case is remanded to the Seoul High Court. The remainder of the appeal is dismissed.

The grounds of appeal are examined.

1. The maintenance infrastructure newly installed by a project implementer under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Areas and Dwelling Conditions for Residents”) (excluding the head of a Si/Gun, the Korea Land and Housing Corporation, or a local government-invested public corporation) as a result of the implementation of an improvement project (hereinafter “new infrastructure”) shall gratuitously vest in the State or a local government (hereinafter “State, etc.”) to manage the relevant infrastructure; and the maintenance infrastructure owned by the State, etc. (hereinafter “previous infrastructure”) shall be gratuitously transferred to a project implementer to the extent equivalent to the installation cost of new infrastructure (see Article 65(2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9045, Mar. 28, 2008; hereinafter the same shall apply). Therefore, if the installation cost of new infrastructure exceeds the value of the previous infrastructure whose use is abolished, it is unlawful for an authorizing government agency to exclude part of the infrastructure from the project subject to free transfer through project implementation authorization, etc.

Meanwhile, when a project implementer grants an application for authorization to implement a project, it shall submit an appraisal report on the protocol, drawing, and value of infrastructure for rearrangement, and a statement of expenses incurred in installing newly installed infrastructure for rearrangement, etc. [see Article 41 (2) 11 of the former Enforcement Decree of the Act (amended by Presidential Decree No. 21679, Aug. 11, 2009)]. In light of the fact that the subject and scope of the previous infrastructure subject to transfer without consideration is ordinarily determined by the authorizing government agency after examining the project implementation plan, etc., to determine the previous infrastructure subject to transfer without consideration, and to add the additional burden to allow the purchase at consideration of the previous infrastructure that is not subject to transfer without consideration. However, if a separate decision is reserved after the project implementation authorization is made, it may be determined differently by adding or modifying the additional burden later.

In this context, where a project implementer files a lawsuit seeking the cancellation of the part excluding a specific infrastructure subject to gratuitous transfer in the project implementation authorization disposition and the subsequent additional or modified disposition, the period for filing a lawsuit shall be based on the time of a disposition that contains a conclusive intention of an administrative agency regarding the object subject to gratuitous transfer. In addition, the determination should be made by comprehensively taking into account all the circumstances, including whether the administrative agency’s intent is clearly expressed to the other party to the disposition through the language and text, such as the statement of reasons for the relevant disposition, and as a result

2. Review of the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following facts.

(1) Within the rearrangement zone in this case, the infrastructure determined and installed by the urban management planning under the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) and determined to be disused due to the implementation of the rearrangement project in the rearrangement plan shall have a public parking lot located in roads and Seongdong-gu Seoul ( Address 1 omitted) and ( Address 2 omitted) of Seongdong-gu (hereinafter “instant parking lot”).

② However, the Plaintiff omitted the instant parking lot in the course of consultation on the object of free transfer in order to apply for authorization for the project implementation, and accordingly, the Defendant also reserved an ex post change in the burden by stating only the part of the instant parking lot, excluding the instant parking lot, on August 10, 2007, in the “maintenance Infrastructure to be abolished” in the letter of authorization for the project implementation of the instant project, only that part of the instant parking lot is transferred free of charge, and without any indication as to whether the instant parking lot is subject to free transfer, and by providing for re-consultation on the object of free transfer and its value among the rearrangement infrastructure to be disused.

③ On August 6, 2008, the Defendant reflected the result of the survey appraisal to the Plaintiff, and furthermore, excluded the amount of the appraised value (37,357,625,353 won) under the pretext of compensation, etc. for raising the floor area ratio while granting authorization for the instant rearrangement project, and subsequently, notified the Plaintiff of the decision that the portion of the road should be transferred without compensation, and that the portion of the road should be transferred without compensation, and that the remaining portion of the road shall be sold with compensation for the amount of 12,631.18 square meters (hereinafter “the first decision”).

④ However, the first instance judgment of this case revoked the first instance judgment on the ground that the deduction of the amount to be compensated for the floor area ratio in the first instance decision violates the latter part of Article 65(2) of the former Act and thus was illegal.

⑤ On November 11, 2010, when the instant lawsuit was pending in the lower judgment, the Defendant again included the deduction amount of compensation for the floor area ratio as the deduction amount of the said floor area ratio, and decided to additionally include the existing fundamental infrastructure, public roads (the portion directly used for public purposes through the announcement of recognition, etc.) for free transfer (hereinafter “instant second decision”), and did not explicitly indicate that the instant parking lot is included in the objects of free transfer or is included in the objects of free sale.

3. Based on the above factual basis, the lower court determined as follows.

With respect to the main claim seeking revocation of a disposition on the part of 12,631.18 square meters of an infrastructure for maintenance, which was excluded from the transfer without compensation pursuant to the instant decision, the part of 4,604.8 square meters of an existing road, which is included in the transfer without compensation, is dismissed by deeming that there is no benefit in the lawsuit following a change in the disposal of 4,604.8 square meters of the existing road, and the remaining part of 8,026 square meters of the existing road, is not an infrastructure for maintenance subject to transfer without compensation, on the ground that there is no evidence to recognize that the remaining part of 8,026 square meters of the existing road was installed by the urban management plan under the National Land Planning Act.

In addition, with respect to the preliminary claim that deemed that the instant parking lot was excluded from the gratuitous transfer subject to the instant decision, and sought the revocation of the said part (the instant secondary claim was made by adding part of the road to the object of free transfer and selling the remaining part of the road at a cost, and without specifying the instant parking lot portion, but the Plaintiff filed a claim that the instant parking lot was excluded from the object of free transfer, and the Plaintiff filed a claim that the instant parking lot was excluded from the object of free transfer.) The instant preliminary claim was unlawful since the instant preliminary claim was filed on February 7, 2011, since the period of filing a lawsuit against the instant preliminary claim for the approval of the project implementation, including the instant parking lot, was from the date of the instant preliminary claim for the approval of the project implementation, which was filed on February 7, 2011, against the exclusion of the instant parking lot from the object of free transfer, and the instant preliminary claim for project implementation, which was filed after the filing date of the lawsuit under Article 20 (1) of the Administrative Litigation Act.

4. However, the above determination by the court below is just as to the primary claim, but it is not acceptable as to the conjunctive claim.

A. First, we examine the main claim.

The allegation in the grounds of appeal is with the purport that the lower court erred by misapprehending that the instant parking lot was part of the road, although the instant parking lot was included in the land of 12,631.18 square meters, which was decided as the object of the commercial sale in the instant first decision, or that in light of the aforementioned factual basis, the lower court’s fact-finding cannot be deemed as exceeding the bounds

In addition, examining the above facts in light of the legal principles as seen earlier, inasmuch as the Defendant reserved an ex post change by making a re-consultation on the object and value of gratuitous transfer among the rearrangement infrastructure whose use is abolished while granting authorization for the project implementation, and accordingly made a decision of this case first and then made a disposition to change the object of gratuitous transfer by again making the decision of this case second, it shall not be concluded that the Defendant did not make any decision on whether to gratuitously transfer the instant parking lot in the first decision, and that it did not mean that the instant parking lot was excluded from the object of gratuitous transfer.

Therefore, it is justified in the conclusion that the court below did not separately determine the instant parking lot on the premise that the instant parking lot is not included in the land determined to be sold, which is excluded from the land subject to free transfer in the first decision of this case. The ground of appeal on this part is without merit

B. We examine the following ancillary claims:

(1) First of all, in light of the following circumstances, the Defendant’s disposition to exclude the instant parking lot from the objects of free transfer and include it in the objects of sale is deemed to have existed at the time of the instant second decision.

① The instant parking lot, which is naturally disused, is subject to determination as to whether the Defendant has transferred without compensation within the scope of installation costs of new fundamental infrastructure at the time of project implementation authorization pursuant to Article 65(2) of the former Act.

② However, the Defendant did not clearly state that the instant parking lot is excluded from the transfer without compensation in the project implementation authorization letter, and did not present any grounds or reasons related thereto. Therefore, it is difficult to deem that the Defendant was a disposition that contained the intent to exclude the instant parking lot from the transfer without compensation. Therefore, the instant parking lot should also be deemed as included in the subject for which the decision on whether to transfer without compensation is reserved at the time of project implementation authorization.

③ The first decision of this case imposes a post-payment reserved pursuant to the authorization terms of this case, and its main purpose is to limit the scope of installation costs itself by reflecting the amount of compensation for the floor area ratio, and it does not intend to exclude the instant parking lot from the transfer without compensation. Thus, it is difficult to deem that the first decision of this case constitutes a disposition that contains an intent to exclude the instant parking lot from the transfer without compensation.

④ Although the amount of installation cost of new fundamental infrastructure, which did not apply to the amount of compensation for the floor area ratio when the second decision of this case was made, the Defendant set only part of the roads as the object of free transfer, and did not include the instant parking lot, etc. in the object of free transfer. Thus, notwithstanding the latter part of Article 65(2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions, the Defendant can be deemed to have finally and finally expressed his intention to exclude the instant parking lot from the object of free transfer.

(2) However, according to the records, the Plaintiff received a written disposition around November 1, 2010, which was the date of the instant decision No. 2, and added a preliminary claim on February 7, 201, for which the 90-day filing period has not elapsed, to the effect that the Plaintiff sought revocation of the decision on selling the remainder of the State-owned and public land including the instant parking lot, among the instant decision No. 2, on April 12, 2011, the Plaintiff sought revocation of the instant parking lot part among the instant decision No. 2, and subsequently amended the purport of the claim to seek revocation of only the instant parking lot part, and thus, the instant preliminary claim did not exceed the filing period.

Therefore, the court below should have determined the illegality of the second decision of this case based on the result of the following: (a) insofar as the instant parking lot falls under the maintenance infrastructure whose disuse is abolished under the latter part of Article 65(2) of the former Act; and (b) further, the current status of the instant project implementation authorization disposition and the instant parking lot determined to be transferred free of charge in accordance with the first decision; and (c) whether the aggregate value of the fundamental infrastructure to be disused, such as the instant parking lot,

Nevertheless, the lower court dismissed the instant preliminary claim on the ground that the period for filing the instant preliminary claim was excessive, and thus, it erred by misapprehending the legal doctrine on the timing of determining the sale of the instant parking lot, thereby adversely affecting the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

5. Conclusion

Therefore, the part of the judgment below regarding the conjunctive claim is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining grounds of appeal are dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Chang-suk (Presiding Justice)