(영문) 서울고등법원 2014.2.13.선고 2013나2012783 판결

All of the plaintiff's appeal and the claim extended in the trial court are dismissed. The costs of the lawsuit after the appeal are assessed against the plaintiff.

Purport of claim and appeal

The judgment of the first instance shall be revoked.

The defendant shall pay to the plaintiff 21.7 billion won and among them 1.3 billion won from June 23, 2008; from July 31, 2008 to 2.9 billion won; from February 2, 2009 to 3.2 billion won; from July 31, 2009 to 3.1 billion won; from November 18, 2009 to 11.2 billion won, 5% per annum from November 18, 2009 to the delivery date of an application for modification of the purport of the claim; and from the next day to the day of full payment to December 11, 2013 to the day of full payment; and 20% per annum from the next day to the day of full payment.

(Plaintiff extended the purport of the claim in the trial)

Reasons

1. Facts of recognition;

The following facts may be acknowledged, either under dispute between the parties, or under dispute between Gap and Eul, by taking into account the respective descriptions of Gap evidence or the entire purport of video and pleading as well as the entire purport of Gap evidence Nos. 1, 2, 3, 12, 13, 14, 16, 19, 31, 32 (including the number of pages; hereinafter the same shall apply), Eul evidence Nos. 1 through 4, 7, 8, 9, 10, 13, 16, 32:

(a) Expiration of the housing reconstruction rearrangement project;

(1) The Plaintiff is a housing reconstruction and rearrangement project association established for the purpose of implementing a housing reconstruction project on the 623 and 2 lots of land, which was approved by the Defendant on November 4, 2002. (2) The Defendant drafted an “Wang Do governor’s king Urban Management Plan” to the Gyeonggi-do Governor by gathering opinions from the Plaintiff’s association members and the members of the housing reconstruction and rearrangement project association (hereinafter “Treatment Member Housing Association”) that promoted housing reconstruction and rearrangement project in an area adjacent to the Plaintiff’s project district, and by gathering opinions from the Plaintiff’s association members, etc. In this regard, the Gyeonggi-do governor included the 7th Do governor’s king Urban Management Plan as No. 204-403 of the Gyeonggi-do public notice on December 23, 2004, 635,718 square meters (hereinafter “instant district unit planning zone”) from the 20th general residential area to the 3rd general residential area, and the 7th 5th Do governor’s 20% of the above ground parking zone.

(3) In 2005, the Defendant applied to the Gyeonggi-do Governor for designation of a rearrangement zone in the instant district unit planning zone for the housing reconstruction project of the king Housing Reconstruction Project Association (hereinafter referred to as the “Doking Housing Association”) and the Treatment Member Housing Association, and was decided by the Governor of the Gyeonggi-do to newly build a children’s park and underground parking lot in the front-time steel site, etc., but notified the Governor of the Gyeonggi-do of the opinion that the scheduled site for children’s park and underground parking lot should take measures against it in addition to the rearrangement zone and the rearrangement zone.

(4) Accordingly, the Plaintiff, Treatment Member’s housing association, mineral-fluoring reconstruction and improvement project association, association for party-fluoring reconstruction and improvement projects, and association for party-fluoring housing (hereinafter referred to as “Plaintiff, etc.”) submitted to the Defendant a joint agreement (hereinafter referred to as “instant joint agreement”) with the following contents written as of March 8, 2005:

I agree to install the infrastructure for rearrangement, which has been determined and publicly announced by the district unit planning regarding the reconstruction project of the Gosang City in order to install the infrastructure for rearrangement before the completion of the project at the king Urban Housing Association, the re-building maintenance project.

(5) On the basis of the instant joint agreement, the Defendant’s measures against the review opinions of the related departments of Gyeonggi-do.

The plan has been submitted to the Governor of the Gyeonggi-do, and the contents of this case are as follows:

A person shall be appointed.

(6) On April 11, 2005, the Governor of the Gyeonggi-do designated and publicly notified the zone for the re-building of the housing unit for the treatment member of the king (former or YY) under the Gyeonggi-do Public Notice No. 2005-87, the designation and public notice of the zone for the re-building of the housing unit for the king-do under the 2005-88 of the Gyeonggi-do Public Notice No. 2005-88 of the same day, and the designation and public notice of the zone for the re-building of the king-Japan-Pacific project as the Do Public Notice No. 200

3. Designation of the housing reconstruction rearrangement zone for the infrastructure outside the zone subject to the land utilization plan; 10. Agreement is to be made to be established in the housing association for the treatment members (e.g., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e. e., e., e. g. e., e., e., e., g., e., e., e., g., e., e., g., e., e., e., g., e., e., e., e., e., g. e., e., g.). e. e. e., e.).

(b) Authorization for authorization for project implementation and imposition of charges;

(1) The Plaintiff obtained project implementation authorization from the Defendant on May 16, 2005, and project implementation authorization on September 9, 2006, and the project implementation authorization on October 20, 2006. The Plaintiff was subject to the following burden (hereinafter “instant burden”).

2. The terms and conditions for authorization for project implementation, '2. Public property(financial department) : accounting division, 2. Of the terms and conditions for authorization for project implementation that the project implementer must purchase before the authorization for project implementation, '9.'9. Urban planning facility sector: urban planning department; 'urban planning facility sector'; 'urban planning facility sector'. 'urban planning facility sector'. 'urban planning facility sector' newly expanded infrastructure, roads, parks, buffer green belt, etc. should be gratuitously reverted after creation, and a project implementer shall be designated under the National Land Planning and Utilization Act (Article 86) and the authorization for implementation plan (Article 88) shall be obtained and created by obtaining the designation of the project implementer under the National Land Planning and Utilization Act (Article 86) and the authorization for implementation plan (Article 88) shall be conducted by attaching relevant documents under the relevant Act so that consultation can be processed by consultation pursuant to Article 32 of the Act on the Maintenance and Improvement of

(2) On the other hand, the Plaintiff, separate from the above children’s park and parking lot, etc. based on the instant burden, created two infrastructure facilities in the Plaintiff’s business area and two parking lots (see the evidence A No. 13). The process of implementing the instant burden

(1) 2,221.9m, 33m, 710-10m, 710-10m, 710-2m, 710-12m, 710-12m, 670.1m, 710-14m, 710-16m, 710-15, 710-6m, 710-15, 710-26m, 710-2, 710-2, 267m, 710-3m, and 94m, 76m, 74m, and 74m, 74m, and 76m, 74m, 74m, and 76m, 75m, and 74m, of the same site as the 5m, remaining-10-3m, 75m, and 174m, of the same site.

(2)The project zone southwest-west-west-west-west-house project zone is located both in the king-gu apartment project zone and in the king-west-west-west-west-house project zone and in the king-west-house project zone and in the north-west-west-house project zone of the treatment-based apartment project zone and in the Cheongsan apartment project zone of the treatment-based housing zone.

(3) As seen in Article 1-A(4) of the former Act, the Plaintiff and the king Urban Housing Association jointly agreed on March 8, 2005, which was around the time of the designation of the rearrangement zone, to create children’s park and its underground parking lots on the ground of infrastructure on the land owned by the instant Si land, and to expand the first-64 roads. After that, the Plaintiff, the king Urban Housing Association, the Treatment Members’ Housing Association, the Frason Housing Reconstruction Project Association, the Cheongcheon Apartment Housing Reconstruction Project Association, and the Cheongcheon Apartment Housing Reconstruction Project Association agreed on June 26, 2006; December 12, 2006; December 27, 2006; May 2, 2007; the 41.70% of the Plaintiff’s project area for the creation of infrastructure outside the instant project zone; 10.56% of the Cheongwon Housing Association’s 40% of the project cost reverted to the Defendant; 205.46% of the Cheong Housing Reconstruction Housing Association; 464.6% of the above.6% of the Cheong Housing Association.

(4) Since the instant shares are administrative property owned by the Defendant, the instant shares are the land owned by the Defendant, and thus, the instant shares are first abolished, and then sold to the Plaintiff, the Do governor-gu Housing Association, the Treatment Member Housing Association, the Rarai Housing Improvement Project Association, and the Cheongcheon Apartment Housing Improvement Project Association, and the Plaintiff, etc., after demolishing the relevant ground buildings, shall complete the construction of the children’s park and underground parking lot and the construction of the road extension and implement it by donation to the Defendant.

(5) In order to meet the instant burden, the Plaintiff entered into a sales contract with the Defendant, ① on June 2, 2008, ② the first sales contract on March 31, 2009, ② the amount of the property subject to sale (miscellaneous property) immediately determined on March 31, 2009, ③ the sales contract for Samsung Child Care Center on April 6, 201, ④ the sales contract for Samsung Child Care Center on August 17, 201, ④ each of the administrative property on August 17, 201, concluded each of the instant sales contracts for the 21,952,843,920 won. Ultimately, the Plaintiff purchased the entire land of the instant case as above, and paid the Defendant a total of KRW 21,952,843,920 as indicated below, and the Defendant was installed on the land of this case, and the Defendant bears a total of KRW 208,375,784,705,785,740,7,757.

A person shall be appointed.

(6) As to the Plaintiff’s share (which differs from each other on the land or about 41.7%) among the land in the instant case, the Plaintiff completed each registration of ownership transfer based on each of the instant sales contracts on November 23, 2009, April 29, 2010, and September 15, 2011. The Defendant completed the registration of ownership transfer based on each of the instant sales contracts.

D. Progression of administrative litigation against the instant burden

(1) On November 26, 2007, the Plaintiff and the Dogman Housing Association filed a lawsuit seeking nullification of the part of the disposition on authorization for the implementation of a project, etc. alleging that the defect in the violation is grave and obvious and thus invalid, it violated the principle of proportionality, the principle of prohibition of unfair decision-making, and the principle of prohibition of unfair decision-making, and filed a lawsuit seeking nullification of the disposition on the approval for the implementation of a project, etc., by asserting that the defect in the violation is null and void.

(2) On July 16, 2009, the Suwon District Court violated the principle of prohibition of unfair decision-making and the principle of proportionality, but it is difficult to deem such defect to be null and void as it is significant and apparent. On the ground that the claim of the Plaintiff and the king Doang Housing Association was dismissed, and the appeal and appeal by the Plaintiff et al. against this part were dismissed (Seoul High Court Decisions 200924384, Oct. 13, 2010; 2010Du24951, Aug. 30, 2012).

(3) Meanwhile, after the center for senior citizens, senior citizens' welfare center, city library, and child-care center built on the land of this case were removed for the purpose of building a parking lot and park, the defendant newly constructed a public office building of about 26.1 billion won on the ground of the underground floor by inserting a budget of about 26.1 billion won in order to replace the above facilities, and then operates the center for senior citizens' welfare center, senior citizens' welfare center, city library, child-care center, and 2 knife offices in the city of this case, and provides public services to local residents.

2. Summary of the plaintiff's assertion

A. Claim for damages under the State Compensation Act

(1) It is unlawful to conclude a sale contract on the land of this case with the Plaintiff under Article 29(3) of the former Enforcement Decree of the Public Property and Commodity Management Act (amended by Presidential Decree No. 1927, Dec. 30, 2006; hereinafter the contents of the relevant Act are as follows: (1) the Defendant’s imposition of the burden on the land of this case under Article 18 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 1065, Aug. 4, 2005; 2) the Defendant’s imposition of the burden on the land of this case under Article 16 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 1060, Jan. 1, 2006; 3) for the purpose of protecting the public property of this case under Article 36(1) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents.

(2) As the above public official’s unlawful performance of official duties, the Plaintiff entered into a sales contract for the instant land, and paid a total of KRW 21,952,843,920 to the Defendant for the purchase price, thereby incurring loss equivalent to the amount.

(3) Therefore, the Defendant, a local government, is obligated to pay the above amount to the Plaintiff as compensation for damages pursuant to Article 2 of the State Compensation Act. As such, the Defendant, as a part of a claim, seek the payment of KRW 21.7 billion, such as the purport of the claim, and damages for delay thereof (for six installments, claim the total sum of less than KRW 100 million out of each

B. Alternatively, the assertion for return of unjust enrichment arising from the invalidity of each of the instant sales contracts

(1) Since the instant burden imposes an obligation to pay money equivalent to the purchase price on the Plaintiff after purchasing the instant land again, it can be deemed that the said money was donated or donated for money irrelevant to the performance of official duties such as authorization for project implementation and authorization for modification, and each of the instant sales contracts concluded with the execution of the instant burden is invalid as it is in violation of Article 103 of the Civil Act.

(2) For the same reasons as seen in Article 2-2-A-3(1)-2(3), each of the instant sales contracts is invalid as it violates the mandatory provisions of the former National Land Utilization Act, etc.

(3) Therefore, the Defendant is obligated to return unjust enrichment equivalent to the purchase price of land in the instant case, which was received from the Plaintiff as a result of the implementation of each of the above sales contracts, to the Plaintiff. As such, the Defendant, as a part of a claim, seek payment

3. Determination on the claim for damages

A. Illegality of imposing the instant burden

(1) Whether the principle of prohibition of unfair decision-making and the principle of proportionality are violated

A beneficial administrative act may impose a burden as an associate officer, even if there is no specific provision on the law, but such a burden shall not be in violation of the principle of proportionality and the principle of prohibition of unfair decision-making (see Supreme Court Decision 96Da49650, Mar. 11, 1997).

In this case, the following facts can be revealed. ① The implementer of the housing reconstruction project, such as the Plaintiff, is obligated to build infrastructure in the rearrangement zone (Article 64(1) of the former Urban Improvement Act), but the park and parking lots and the land owned by the Plaintiff, which are the site, are located outside the rearrangement zone of the Plaintiff, and the Plaintiff is not obligated to build the infrastructure in principle. ② However, the implementer of the housing reconstruction project within the rearrangement zone including the Plaintiff, notified the Defendant of his opinion to devise measures for the instant land located outside the rearrangement zone of each project, which is located outside the rearrangement zone of the Plaintiff, submitted the instant joint agreement to the Defendant, which states that the rebuilding rearrangement project implementer within the rearrangement zone of this case, including the Plaintiff, installed the infrastructure infrastructure of this case and without compensation to the Defendant. (3) Although the Defendant did not lend the land owned by the Plaintiff without compensation, the Plaintiff cannot be deemed to have abused its discretionary power, the Plaintiff did not bear any burden on the Plaintiff’s construction of the instant land in the rearrangement zone and its purchase of the parking zone of this case.

In full view of the circumstances and contents of the instant burden, it is reasonable to deem that the instant burden violates the principle of prohibition of unfair decision-making and the principle of proportionality, as it is based on the content that the Plaintiff is not obligated to bear or should bear.

(2) Whether the former Public Property Act was violated

First of all, according to Article 29(3) of the former Enforcement Decree of the Public Property Act, "a loan may be made free of charge where the general property falls under any of the following subparagraphs," and "a case where a person who intends to construct and make a donation of a building, etc. under subparagraph 3 of the same paragraph uses the site during the new construction period." According to the above provision, whether to grant a free lease of public property belongs to the administrative agency's discretion, and thus, the defendant did not lend the land of this case to the plaintiff without compensation. It cannot be deemed that the above Act violated the

On the other hand, Article 29 of the former Public Property Act provides that "a contract for the lease or sale of miscellaneous property shall be made by competitive bidding after public announcement thereof: Provided, That in cases prescribed by Presidential Decree, it may be made by designated competitive bidding or by a private contract," and Article 36 provides that "a contract for the sale of miscellaneous property may be made only in cases falling under any of the following subparagraphs" under subparagraph 2 and Article 29 (1) 1 through 29 of the former Enforcement Decree of the Public Property Act, which provides that "a contract for the sale of miscellaneous property shall be made by free contract as prescribed by Presidential Decree." Accordingly, there is no case in this case under Article 38 (1) 1 through 29 of the former Enforcement Decree of the Public Property Act, which provides that "a contract for the sale of miscellaneous property may be made by free contract." In addition, even in addition to the provisions of the former Act on the Utilization and Management of National Territory cited by the Plaintiff,

Therefore, it can be deemed that the Defendant’s selling the instant land to the Plaintiff by means of a negotiated contract violates Article 36(1) of the former Public Property Act.

(3) Whether the former Urban Improvement Act was violated

Article 64(1) of the former Act on the Maintenance and Improvement of Urban Areas provides that a project implementer shall impose a duty to build a foundation for rearrangement in an improvement zone, and that a project implementer shall gratuitously vest the infrastructure for rearrangement newly installed by the project implementer in the State or a local government. Article 65(1) of the same Act provides that a project implementer shall gratuitously vest in the infrastructure for rearrangement, the use of which is abolished within the scope of the cost for installation of infrastructure for rearrangement, in which case the project implementer shall gratuitously vest in the project implementer, thereby promoting equity and balance between the project implementer and the State or a local government regarding the cost-bearing and attribution of profits arising from the implementation of a rearrangement project. In addition, Article 29(3)3 of the former Enforcement Decree of the Act on the Public Property provides that a local government may lease a site for a new construction of a building

However, according to the above facts, the following circumstances are revealed. ① The area in which the Defendant imposed the obligation to install the maintenance infrastructure on the Plaintiff, a project implementer, is outside of the Plaintiff’s rearrangement zone.

② The Plaintiff prepared and submitted the instant joint agreement with the Defendant that he would bear the duty of installation along with other rebuilding improvement project implementers, such as the Daewoo Member’s Housing Association, but there is no content on the purchase of the instant re-owned land, which is the site for the rearrangement infrastructure. ③ Nevertheless, the Defendant imposed the instant burden on the Plaintiff to purchase the instant re-owned land under the conditions for project implementation authorization, and to gratuitously vest the Defendant after installing the rearrangement infrastructure under the conditions for project implementation authorization, and upon the performance of the burden, he completed the registration of ownership transfer under the name of the Defendant on the date of donation. On the other hand, there is no evidence on whether there is any part of the rearrangement infrastructure owned by the Defendant, which is reverted to the Plaintiff due to the abolition of its usage.

In light of the above circumstances, the Defendant’s obligation to install infrastructure for maintaining parks and parking lots, etc. on the land of this case to the Plaintiff, which did not exist in the contents of the joint agreement of this case, was to purchase the land of this case and to gratuitously vest the land in the land of this case. The Defendant’s charge of this case was unlawful since it had the Plaintiff purchase the land of this case without any grounds under the Act on the Maintenance of Urban Areas and other relevant Acts

B. Whether a public official's intention or negligence is recognized

(1) Even if a certain administrative disposition was revoked in an appeal lawsuit or received judgment as illegal in a lawsuit seeking nullification of the administrative disposition after the appeal lawsuit, it cannot be readily concluded that the pertinent administrative disposition was caused by a public official’s intentional or negligent act and constitutes a tort. It is reasonable to deem that the public official in charge of the pertinent administrative disposition satisfied the requirements for State liability under Article 2 of the State Compensation Act in a case where the pertinent administrative disposition is deemed to have lost objective legitimacy by failing to perform an objective duty of care when considering the public official’s standard. Whether the administrative disposition has lost objective legitimacy should be determined by taking into account all the circumstances, such as the type and nature of the infringed benefit, the form and reason of the administrative disposition being infringed, the degree of the administrative disposition being infringed, the victim’s involvement in the exercise of the administrative disposition, and the degree of damage, etc.

(2) 이 사건에서 보건대 앞서 본 사실관계 등에 의하면 다음과 같은 사정을 알 수 있다. 즉 1 경기도지사가 피고의 정비구역지정 신청에 대하여 이 사건 시유토지 지상 기반시설의 설치방법을 강구하라는 검토의견을 통보하자, 원고 등은 2005년 3월경 위 기반시설의 설치문제를 해결하고 주택재건축사업의 신속한 추진을 위하여 이 사건 부담의 부과가 있기 전에 자발적으로 정비구역 외 정비기반시설을 신축하여 기부채납하겠다는 취지의 이 사건 공동합의서를 작성하여 피고에게 제출하였다. ② 피고는 이 사건 공동합의서를 기초로 한 조치계획서를 경기도지사에게 제출하였고, 이에 경기도지사는 2005년 4월경 바로 정비구역을 지정하였는데, 만일 위와 같은 공동합의서의 제출과 이에 따른 피고의 조치계획이 경기도지사에게 제출되지 않았다면 정비구역지정의 지연으로 2002년경에 이미 설립인가를 받은 원고로서는 사업지연 등으로 인하여 상당한 재산상 손해를 보는 등 재건축사업 진행에 어려움을 겪었을 것으로 보인다. ③ 원고 등은 피고 소유인 이 사건 시유토지 지상에 위와 같이 정비기반시설을 신축하기 위해서 피고로부터 위 토지를 사용할 권한을 취득할 필요가 있었는데, 피고가 이를 무상으로 대부할지 여부는 앞서 본 바와 같이 구 공유재산법 등에 의하더라도 피고의 재량행위에 해당한다. ④ 문제는 무상 대부 여부가 재량행위라 하더라도 피고가 무상 대부를 선택하지 않고 굳이 구 도시정비법상 근거가 없음에도 원고를 포함한 재건축사업시 행자들로 하여금 이 사건 시유토지를 매수하도록 한 점에 대한 평가이다. 원고의 정비구역은 이 사건 시유토지로부터 어느 정도 거리를 두고 있지만(대우사원주택조합과는 6m의 도로를 사이에 두고 있다), 이 사건 시유토지는 원고의 정비구역을 포함한 이 사건 지구단위계획구역의 중심에 위치하고 있어 피고로서는 어느 한 정비구역만을 고려하지 않고 이 사건 지구단위계획구역 전체를 위한 공공시설이나 정비기반시설의 설치.를 통해 재건축 후의 주거단지에 걸맞고 증가된 인구를 위한 공공편의를 확보하고자 그 시설의 설치를 중앙에 밀집 · 배치하는 것을 고려했던 것으로 보인다. 즉, 이 사건 시유토지 위에는 당초 경로당, 노인복지회관, 시립도서관, 어린이집, 테니스장 및 내손2동 사무소가 위치하여 있었는데, 이를 철거하여 그 곳에 주차장과 공원을 조성하고 나면, 위 공공시설을 대체할 공용청사가 필요하였다. 그래서 피고는 이 사건 지구단위계획구역 중심부이자 이 사건 시유토지 인근에 위 공공시설을 대체할 공용 청사 건립계획을 추진하였고, 이 사건 시유토지의 매매대금 중 261억 원을 투입하여 그 공용청사를 완공한 다음 운영중에 있으며, 테니스장 부지확보를 위해 노력하고 있다(을 제13, 16, 32호증), 0) 이 사건 지구단위계획은 그 계획구역 내의 재건축으로 인하여 증가될 인구와 이로 인한 토지이용의 합리화 및 기능증진 등을 반영하여 마련된 것인데, 위와 같은 고려가 없다면, 이 사건 지구단위계획구역 내의 각 정비구역별로 필요한 공공편의시설을 설치하도록 지구단위계획이나 각 정비사업조합의 각 사업시행계획이 변경되어야 하고, 그러한 변경은 난개발을 방지하고자 하는 지구단위계획구역 지정 취지에도 어긋날 뿐만 아니라 그로 인한 갈등과 사업지연 및 그에 따른 원고 등의 경제적 손실 내지는 불편 등은 대단히 컸을 것으로 보인다. 원고 등이 이 사건 부담이 부과된 이후 바로 그 취소를 구하는 항고소송을 제기하지 않다가, 그로부터 1년이 경과한 이후 앞서 본 무효확인의 항고소송을 제기하였고, 그 항고소송 계속 중에도 피고와 이 사건 각 매매계약을 체결하고 매매대금을 지급한 것을 보면, 원고 등도 위와 같은 손실과 불편을 능히 예상하였을 것으로 보인다. 물론 이 사건 각 매매계약 제15조에 위 항고소송의 결과에 따라 이 사건 각 매매계약의 효력을 좌우할 수 있는 내용(원고 등이 승소할 경우 매매대금의 반환 등)의 특약을 두기는 하였지만(갑 제15조), 원고가 당시 이 사건 부담의 위법성을 확신하지는 않았던 것으로 보인다(만일 확신하였다면 이 사건 소는 소멸시효기간이 경과한 후 제기된 결과가 된다). ⑥ 지방자치단체가 일반재산을 매각할 경우 원칙적으로 입찰에 부치도록 하고 시행령에 열거된 경우에만 수의계약을 체결할 수 있다고 규정한 구 공유재산법 제29조 제1항, 제36조 제1항은 지방자치단체가 가지는 공적인 기능에 주목하여 계약담당자들의 부정·비리의 소지를 차단하고, 더 많은 경제주체들에게 공평한 경제활동의 기회를 부여하는 데 그 뜻이 있는 것으로서, 이를 위반한 계약담당공무원, 계약상대자에 대하여 형사처벌이나 별도의 행정처분을 그 안에 규정하고 있지 않을 뿐 아니라, 이를 위반하여 체결된 계약의 효력에 관하여도 아무런정함이 없으므로 이는 임의규정으로 볼 수 있는바, 이 사건의 경우 피고가 이 사건 시유토지에 관하여 원고와 수의계약을 체결한 것이 위와 같은 공유재산법 규정의 목적을 해하였다고 보기 어렵다. ⑤ 이 사건 사업구역 외 기반시설 조성에 대하여 원고가 41.70%, 이 사건 시유토지에 인접한 대우사원주택조합이 40.48%의 비율로 사업비를 분담하기로 하였는데, 그 둘 사이의 부담비율만 비교하면 원고가 50.74%[=41.70 / (41.70 + 40.48)]이고, 대우사원주택조합이 49.26%[=40.48 / (41.70 + 40,48)]이다. 그런데 재건축규모로 비교하면 원고가 2,520가구이고 대우 사원주택조합이 2,245가구여서, 둘 사이만 비교하면 원고가 52.88%[=2,520 / (2,520 + 2,245)]이고, 대우사원주택조합이 47.12%[=2,245 / (2,520 + 2,245)]이므로, 원고가 대우사원주택조합에 비하여 그 규모가 큼에도 부담비율이 다소 작아 원고 등 사이에서 그 부담비율을 정할 때, 이 사건 시유 토지와의 거리 및 새로 생긴 기반시설과의 접근성 등이 고려된 것으로 보인다. 또한 원고의 주택재건축사업 총사업비는 8,650억 원 상당인데 반하여, 원고가 이 사건 시유 토지의 매수와 기반시설의 설치를 위하여 투입한 사업비가 약 300억 원 상당인 점 등에 비추어 보면 그 차지하는 비중이 적지 아니하나, 사업지연 등으로 인하 손실과 원고 등의 노력과 부담으로 정비된 기반시설 및 공공청사 등으로 인한 경제적, 편의 적효과를 두루 고려하면, 반드시 위 300억 전부가 원고의 손실이라고 볼 수도 없다. (3) 위와 같은 사정을 위 법리에 비추어 보면, 비록 앞서 본 바와 같이 이 사건 부담의 부과 및 그에 따라 이 사건 시유토지에 관하여 체결한 일련의 매매계약에 위법이 있었다 하더라도, 손해배상제도의 이념에 비추어 실체상으로 그로 인하여 원고가 입은 손해를 피고가 전보하여야 할 정도로 객관적 정당성을 상실하였다고 인정될 정도에 이르렀다거나 그 직무를 수행하는 보통 일반의 공무원을 표준으로 하여 볼 때 이 사건 부담의 부과 및 위 매매계약 체결의 담당공무원에게 객관적 주의의무를 결한 직무집행상의 과실이 있다고 보기 어렵고, 달리 이 점을 인정할 만한 증거가 없다.다. 소결

Therefore, we cannot accept this part of the plaintiff's assertion based on the defendant's intention or negligence.

4. Determination as to the claim for return of unjust enrichment

A. Violation of Article 103 of the Civil Act

Although each sales contract for the land of this case, which was entered into as the execution of the instant burden, becomes the Plaintiff to bear the expenses therefrom, it cannot be deemed that the Defendant requested a donation or donation of money in the relationship between the authorization for project implementation and the authorization for modification, as alleged by the Plaintiff, as otherwise alleged by the Plaintiff, and according to the circumstances examined in Article 3-B-2(2) above, it is difficult to see that the instant burden is in violation of the good faith principle, and therefore,

B. The violation of mandatory regulations, such as the former Act on the Improvement of Urban Areas

Although the illegality of the instant burden is partially recognized as seen in the above 3-A-B-2(2), according to the circumstances examined in the above 3-B-2(2), the Plaintiff’s assertion on this part cannot be accepted, since it is not to be deemed null and void.

5. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the appeal of the plaintiff against the judgment of the court of first instance and the expanded claim in the trial.