Plaintiff 1 and six others (Law Firm Identity, Attorneys Park Yong-sik, Counsel for the plaintiff-appellant)

Seodaemun-gu Seoul Metropolitan Government (Attorney Park Jung-sik, Counsel for the defendant-appellant)

March 15, 2018

Seoul Western District Court Decision 2017Kadan206512 Decided October 13, 2017

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

Defendant:

A. The amount of 40,093,878 won and the amount of 5% interest per annum from October 1, 2015 to the date of the first instance judgment and 15% per annum from the next day to the date of full payment;

B. As to KRW 12,537,442, and KRW 10,515,685, respectively, for KRW 12,515,685, respectively, and KRW 2,021,757 from September 21, 2015; and KRW 5% per annum from October 7, 2015 to the date each judgment of first instance is rendered; and KRW 15% per annum from the following day to the date of full payment;

C. The amount calculated by applying the respective ratio of KRW 5,496,299 and KRW 4,629,832 to Plaintiff 4 from September 10, 2015; KRW 866,467 from October 7, 2015 to the rendering of each judgment of first instance; and KRW 5% per annum from the next day to the date of full payment; and KRW 15% per annum from the next day to the date of full payment;

D. The amount of money calculated on September 10, 2015 for each of the KRW 3,664,200 and KRW 3,086,55 for each of the KRW 3,086,55 for Plaintiffs 5 and 6, and KRW 577,645 for each of the KRW 57,645 from October 7, 2015 to the date of each judgment of first instance, and KRW 15% per annum for each of the following to the date of full payment;

E. The Plaintiff 7 pays 51,106,917 won and 15% interest per annum to Plaintiff 7 from June 18, 2013 to the date of the first instance judgment, and each of them pays 5% interest per annum from the next day to the date of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiffs' claims are dismissed.

1. Quotation of the first instance judgment

The reasoning for the court's reasoning on this case is as follows, the "Public Works Act" of the fifth 12th 5th 12th of the judgment of the court of first instance is "Public Works Act (amended by Act No. 10239, Apr. 5, 2010; hereinafter "former Public Works Act"). The "Public Works Act of the sixth 11th, fourteenth 14th and fifteenth 15th "each "Public Works Act," and the part claimed additionally by the court is stated in the reasoning of the judgment of the court of first instance, except for the addition of "new determination on the assertion" as follows. Thus, this is cited as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Determination on new arguments

A. First, the Defendant asserts to the effect that each of the instant lands constitutes the infrastructure to be transferred to the implementer of the Housing Redevelopment Improvement Project for North Asia 1-3 Urban Renewal Zones (hereinafter “instant project”) 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 (amended by Act No. 11293, Feb. 1, 2012; hereinafter “former Urban Improvement Act”), and that the Plaintiffs did not have the right of repurchase for each of the instant lands from the beginning, and therefore, the Plaintiffs did not incur losses due to the loss of the right of repurchase.

In full view of the overall purport of the statements and arguments by evidence Nos. 4 and 6, each of the instant lands can be acknowledged as a redevelopment project among urban renewal projects implemented pursuant to the Special Act on the Promotion of Urban Renewal (hereinafter “Urban Renewal Act”), which is newly established pursuant to Article 3(2) of the Urban Renewal Act and Article 65(2) of the former Act, since the Defendant acquired through consultation from the Plaintiffs and used as a parking lot, which is an urban planning facility, and ceased to be used due to the instant project. The contents of the management and disposal plan regarding the instant project include the abolition of the use of existing infrastructure, such as a road, park, public vacant lot, and public office building. In addition, each of the instant lands can be seen as falling under the infrastructure to be gratuitously transferred to the instant project executor within the scope of the expenses for the installation of public office buildings.

However, Article 91(5) of the former Public Works Act provides that “The repurchase right may be contested against a third party when the acquisition through consultation or the expropriation of the land required for the public works has been registered under the conditions as prescribed by the Registration of Real Estate Act.” This means that even if the object of acquisition through consultation or expropriation is transferred to a third party, if the acquisition through consultation or expropriation is registered, the status of the repurchase right holder may be maintained and the repurchase right holder may exercise the repurchase right and claim it against the third party (see Supreme Court Decision 2015Da238963, Mar. 15, 2017).

Therefore, as long as each of the lands of this case is no longer necessary for the original public works, it is reasonable to deem that the plaintiffs have a redemptive right to each of the lands of this case, and that the situation where each of the lands of this case is transferred to the operator of the business of this case without compensation does not affect the establishment or extinction of the redemptive right. Furthermore, in full view of the overall purport of the entries and arguments in subparagraph 1-1-3 of this case and each of the lands of this case, it can be recognized that the registration of transfer of ownership based on each of the lands of this case was completed by agreement in the name of the defendant. Thus, the plaintiffs can exercise the redemptive right to each of the lands of this case against the operator of the business of this case within the exercise period of the redemptive right, but the defendant did not notify the plaintiffs of the redemptive right, and

Therefore, this part of the defendant's argument cannot be accepted.

B. Next, the Defendant asserts to the effect that each of the instant lands is administrative property under Article 5 (2) 2 of the former Public Property and Commodity Management Act (amended by Act No. 9174 of Dec. 16, 2008; hereinafter “former Public Property Act”). Article 19 (1) of the former Public Property Act prohibits the sale of administrative property. As such, the Plaintiffs from the beginning do not have the right of repurchase for each of the instant lands, and therefore, the Plaintiffs did not incur any loss due to the loss of the right of repurchase.

Even if each of the instant lands was administrative property prescribed by the former Public Property Act, each of the instant lands is used as a parking lot, which is an urban planning facility, after the Defendant acquired consultation from the Plaintiffs, and the use of each of the instant lands was discontinued due to the instant project as seen earlier. Thus, each of the instant lands becomes general property by losing its nature as administrative property, and thus, its restriction under the former Public Property Act shall be extinguished (see Supreme Court Decision 2012Du6612, Feb. 26, 2015).

Therefore, this part of the Defendant’s assertion cannot be accepted on a different premise.

C. Finally, the defendant asserts that since the parking lot project of this case was changed from each road, park, public vacant land, and public office building project as stipulated in Article 4 subparagraph 2 to 4 of the former Public Works Act, the period for exercising the plaintiffs' right to repurchase was calculated from March 31, 2009 (the date of the public notice on the approval of the implementation of the project of this case) which is the date of the new public notice on the change of the project pursuant to Article 91 (6) of the former Public Works Act, and therefore, even if the defendant did not notify the plaintiffs of the right to repurchase, the plaintiffs still are able to exercise the right to repurchase of each of the land of this case, and therefore the plaintiffs did not incur losses due to the loss of the right to repurchase (the defendant asserted that the right to repurchase of this case does not occur until the expiration of 10 years from March 31, 2009). However, according to Article 91 (1) and (6) of the former Public Works Act, the landowner of this case can exercise the right to repurchase within 10 years as above).

However, according to Article 2 subparag. 7 and Article 14 of the Urban Renewal Act, Article 2 subparag. 6 of the National Land Planning and Utilization Act, Article 2 subparag. 6 of the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 22128, Apr. 20, 2010) and Article 2(1) of the former Enforcement Decree of the National Land Planning and Utilization Act, all roads, parks, public vacant lots, public vacant lots, and public buildings constitute infrastructure prescribed by the Urban Renewal Act, and the general executor of the urban renewal acceleration project includes roads, parks, public vacant lots, and public buildings. Thus, even if each project is included in the urban renewal acceleration project, it constitutes one urban renewal acceleration project along with the remaining part of the project. Thus, each project can not be deemed as falling under Article 2 subparag. 31 through 490 of the former Act (amended by Presidential Decree No. 22128, Apr. 20, 201).

Therefore, the first defendant's assertion cannot be accepted on the premise that each road, park, public vacant land, and public office building project, which are one of the contents of the project in this case, falls under each public project stipulated in Article 4 (2) through (4) of the former Public Works Act.

3. Conclusion

Therefore, the plaintiffs' claims shall be accepted with due reasons, and the judgment of the court of first instance is justified with the conclusion, and the defendant's appeal is dismissed. It is so decided as per Disposition.

Judges Shin Young-chul (Presiding Judge)