(영문) 부산지방법원 2009.1.22.선고 2007구합3153 판결

On January 31, 2007, the part of the authorization conditions stated in attached Form (1) among the authorization conditions for the implementation of a housing redevelopment project for the plaintiff on January 31, 2007 is revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff is an urban environment rearrangement project association established for the purpose of implementing a housing redevelopment project by setting a total of 95,269 square meters of 568 square meters in the Dong-dong, Busan Metropolitan City as a rearrangement zone.

B. On January 31, 2007, the defendant approved the implementation of the housing redevelopment improvement project in the P Zone (hereinafter "the improvement project in this case") as follows pursuant to Article 28 (1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter "Urban Improvement Act"). Ten project titles: The plaintiff

0 Location and size: Business size 00 square meters of square meters of 568, 568, 569, 00, 568, 568, 000,000: 4 stories underground, 26 stories above ground, 22 Dong-dong, 1,462 households, total floor area, 289,336.262m20: Multi-family housing and ancillary welfare facilities. On the other hand, the disposition to authorize the execution of the rearrangement project of this case is attached to the conditions of authorization (hereinafter referred to as "the conditions of authorization of this case"), including the conditions of authorization (hereinafter referred to as "the conditions of authorization of this case") listed in attached Form 1, among the lands within the rearrangement project zone (and adjacent land).

【Reasons for Recognition】

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) The instant land is an infrastructure for rearrangement (road) owned by Busan Metropolitan City, the purpose of which is ceased to exist due to the implementation of the instant rearrangement project, and is subject to free transfer under Article 65(2) of the Urban Improvement Act, but the Defendant attached the instant authorization condition with the purport to purchase the instant land while authorizing the implementation of the instant rearrangement project. It is unlawful as it violates Article 65(2) of the Urban Improvement Act and is unlawful.

(2) In light of the fact that all of the instant land is an urban planning road or a naturally occurring road prior to the implementation of the instant improvement project, which has already been used as a road, and that the Plaintiff, as a result of the implementation of the instant improvement project, should bear about 10 billion won to build a new fundamental infrastructure and gratuitously transfer the land to the Defendant or Busan Metropolitan City. However, imposing conditions for authorization for the purchase of the instant land presumed to have been at least 3.2 billion won at the market price violates the principle of proportionality and equity, and that the instant improvement project is a project for the public interest, which is the improvement of the residential environment of tax residents. In light of the fact that the instant improvement project is a project for the improvement of the residential environment of tax residents, adding the authorization conditions of this case with the purport to purchase the instant land at the time of

B. Relevant statutes

Attached Form (2) is as listed in Annex 2.

C. Facts of recognition

(1) Of the instant land, the land under the jurisdiction of the Busan Metropolitan City Construction Administration Division (Construction Safety Division after the reorganization) (one of the instant authorization conditions) is the administrative property owned by Busan Metropolitan City (Provided, That the land in the Dongsan is a miscellaneous property from the time of acquisition, and its competent authority was changed to the defendant around July 5, 2007) and the land under the jurisdiction of the Busan Metropolitan City Accounting Office (7,8 of the instant authorization conditions) is the miscellaneous property owned by Busan Metropolitan City.

(2) The instant authorization terms include the portion of the possession of the market-owned administrative property included in the project area and the portion to be incorporated into the site of the zone before the commencement of the construction. The current status of the land which is the market-owned administrative property is as follows.

A person shall be appointed.

(3) The instant authorization terms include the content that the land should be purchased prior to the commencement of construction works, which is included in the rearrangement project zone or located adjacent to the zone among the instant land. The current status of the land which is the miscellaneous property of the city is as follows.

A person shall be appointed.

(4) Meanwhile, the standard floor area ratio of the instant rearrangement project zone under relevant statutes, such as the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”), etc., was 220%; however, the Defendant applied the said standard floor area ratio to 240.54%, which somewhat mitigated considering the current state of free provision of sites for public facilities, such as fundamental infrastructure newly installed by the Plaintiff while granting authorization for the implementation of the instant rearrangement project.

【Reasons for Recognition】

D. Determination

(1) Whether the land of this case is subject to free transfer under Article 65 (2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for the land of this case (A) The land of this case, which is an administrative property of the city of this case, is classified into a road. According to Article 2 (4) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for the land of this case, the road of this case is included in the maintenance infrastructure. Thus, first, it can be viewed that the land of this case falls under the "infrastructure for the maintenance of local government, the purpose of which is abolished due to the implementation of the rearrangement

Article 65(2) and Article 65(2) of the National Land Planning and Utilization Act provides that an infrastructure for rearrangement newly installed by a person, other than the head of a Si/Gun or a housing construction, who implements an urban planning project, shall gratuitously vest in the State or a local government to manage the infrastructure, and an infrastructure for rearrangement owned by the State or a local government, which is ceased to be used due to the implementation of an improvement project, shall be gratuitously transferred to the project implementer within the extent equivalent to the installation cost of the infrastructure newly installed. Meanwhile, according to subparagraphs 4(c) and (d) of Article 2 of the National Land Planning and Utilization Act and subparagraph 11 of Article 2 of the same Act, an infrastructure for rearrangement under the National Land Planning and Utilization Act and a plan for installation, rearrangement or improvement of infrastructure under the National Land Planning and Utilization Act constitute an urban management plan under the same Act and the urban planning project for the implementation of an urban planning project and a rearrangement project under the Urban Planning and Utilization Act are included in an urban planning facility project for the implementation of an urban planning project and a rearrangement project under the National Land Planning and Utilization Act.

Therefore, it cannot be deemed that all land, the land category of which is a road, falls under the "infrastructure to be disused due to the implementation of the maintenance project", and it can be deemed as the "road, which is the infrastructure stipulated in the National Land Planning and Utilization Act" under the latter part of Article 65 (2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions, and in the case of the above 3-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-owned-owned-owned-owned-owned-owned-owned infrastructure. However, there

(B) The land of the same 3rd dong (excluding the above 3rd dong 1 from among the marketable administrative property under the authorization conditions of this case)

Next, as seen earlier, each of the lands, which are administrative property under the conditions of the authorization of this case, except for the above Tridong 1, among the lands which are administrative property under the conditions of the authorization of this case, is merely a current state road, and its land category is also a forest land. In light of the above legal principles, each of the above lands does not constitute a "maintenance Infrastructure" which is disused due to the implementation of a rearrangement project under Article 65 (2) of the Act on the Maintenance and Improvement of Urban Areas. (C) The land which is a miscellaneous property of the city and the same Tridong san land among the land in this case.

Finally, there is no room to regard all the above land as land in the state of miscellaneous property prior to the implementation of the rearrangement project in this case, and as land in the state of miscellaneous property prior to the implementation of the rearrangement project in this case, the purpose of use is to be abolished due to the implementation of the rearrangement project.

(D) Sub-determination

Therefore, the land in this case constitutes "infrastructure to be ceased to be used as a result of the implementation of the maintenance project" under Article 65 (2) of the Act on the Maintenance and Improvement of Urban Areas.

Therefore, this part of the Plaintiff’s assertion on a different premise is without merit.

(2) Whether the discretionary authority is deviates or abused or not

The following circumstances revealed by the above facts and relevant laws, i.e., the land in this case is used as some status. However, it is not a road or urban planning road under the Road Act, but merely merely a naturally occurring alley road, etc., and thus cannot be deemed as a fundamental infrastructure under Article 65(2) of the Urban Improvement Act. As such, the land in this case does not constitute a fundamental infrastructure to be transferred free of charge by the defendant. Thus, even if there is a big difference between the costs incurred in newly installing the fundamental infrastructure and the purchase cost for the land in this case, the condition of the authorization in this case does not go against the principle of proportionality or the principle of equity. The plaintiff is not obliged to pay for the improvement project in principle under the Urban Improvement Act, considering the fact that the land in this case has already been used as a basic facility such as the fundamental infrastructure in this case, and the cost of the improvement project under the Urban Improvement Act bears no duty to pay for the construction cost of the plaintiff to improve the residential environment in this case.

Therefore, the plaintiff's assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.