Suwon District Urban Development Project Association and three others (Law Firm Changwon, Attorneys Jeong Jong-ju, Counsel for the plaintiff-appellant)

Defendant (Attorney Sun-young, Counsel for the defendant-appellant)

September 5, 2013

Changwon District Court Decision 201Gahap4919 Decided December 26, 2012

1. The plaintiffs' appeal and the appellate court's supplementary claims are all dismissed.

2. The costs of the lawsuit after the appeal are assessed against the plaintiffs.

제1심판결을 취소한다. 주위적으로, 피고는 ① 원고 3, 원고 삼어지구도시개발사업조합(이하 ‘원고 조합’이라 한다)에게, 김해시 (주소 1 생략) 별지1 도면 표시 54, 55, 56, 66, 54의 각 점을 순차로 연결한 선내 (나1) 부분 지상 농막(방) 6㎡, 김해시 (주소 2 생략) 같은 도면 표시 112, 113, 118, 109, 110, 112의 각 점을 순차로 연결한 선내 (차2) 부분 지상 농막(화장실) 11㎡, 같은 도면 표시 114, 115, 116, 108, 109, 118, 117, 114의 각 점을 순차로 연결한 선내 (타2) 부분 지상 농막(주방, 거실) 33㎡, 같은 도면 표시 115, 105, 106, 116, 115의 각 점을 순차로 연결한 선내 (파2) 부분 지상 농막(방) 10㎡, 같은 도면 표시 116, 106, 107, 108, 116의 각 점을 순차로 연결한 선내 (하2) 부분 지상 농막(세면장) 9㎡를, ② 원고 2, 원고 조합에게 김해시 (주소 2 생략) 별지1 도면 표시 57, 58, 59, 69, 68, 57의 각 점을 순차로 연결한 (아1) 부분 지상 비닐하우스 17㎡, 같은 도면 표시 66, 56, 57, 68, 67, 66의 각 점을 순차로 연결한 (자1) 부분 지상 농막(방) 28㎡, 같은 도면 표시 67, 68, 69, 70, 67의 각 점을 순차로 연결한 (차1) 부분 지상 농막(창고) 시설 10㎡를, ③ 원고 조합에게 김해시 (주소 3 생략) 별지1 도면 표시 53, 54, 66, 67, 65, 53의 각 점을 순차로 연결한 선내 (카1) 부분 지상 농막(방) 시설 8㎡, 같은 도면 표시 65, 67, 70, 63, 64, 65의 각 점을 순차로 연결한 선내 (타1) 부분 지상 농막(창고) 8㎡, 같은 도면 표시 99, 100, 112, 110, 111, 99의 각 점을 순차로 연결한 선내 (자2) 부분 지상 농막(화장실) 4㎡를, ④ 원고 4, 원고 조합에게 김해시 (주소 4 생략) 별지1 도면 표시 70, 69, 61, 62, 63, 70의 각 점을 순차로 연결한 선내 (파1) 부분 지상 농막(창고) 20㎡, 같은 도면 표시 69, 59, 60, 61, 69의 각 점을 순차로 연결한 선내 (하1) 부분 지상 비닐하우스 11㎡, 같은 도면 표시 100, 101, 113, 112, 100의 각 점을 순차로 연결한 선내 (마2) 부분 지상 농막(화장실) 1㎡, 같은 도면 표시 101, 102, 114, 113, 101의 각 점을 순차로 연결한 선내 (바2) 부분 지상 농막(방) 3㎡, 같은 도면 표시 102, 103, 115, 114, 102의 각 점을 순차로 연결한 선내 (사2) 부분 지상 농막(주방 및 거실) 2㎡, 같은 도면 표시 103, 104, 105, 115, 103의 각 점을 순차로 연결한 선내 (아2) 부분 지상 농막(방) 2㎡를 각 철거하고, 위 각 토지를 인도하라(위 각 토지 위에 설치된 비닐하우스 등을 이하 ‘이 사건 각 지장물’이라 한다). 예비적으로, 피고는 원고 조합에게 위 각 지장물을 인도하라(당심에서 원고들은 청구취지를 감축하였고, 원고 조합은 예비적 청구를 추가하였다).

1. Basic facts

A. The Plaintiff Union is an association organized by landowners for the purpose of the urban development project (hereinafter “instant urban development project”) for the land located in the Dong-dong and Dong-dong (hereinafter “Seoul-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong land”).

B. On December 13, 2007, the Gyeongnam-do Governor designated the land of 213,890 square meters as an urban development zone, and on January 18, 201, the Kimhae-do Mayor authorized the land substitution plan for the above area on January 18, 201. On February 16, 2011, he designated the land substitution plan as of February 16, 201. The land substitution plan for each land listed in the attached Table 2, which is owned by Plaintiffs 2, 3, 4, and the State (hereinafter “former land”) was designated as indicated in the following table (hereinafter “land substitution plan for replotting”).

On the other hand, the previous land of this case and the reserved land for replotting are completely different from its location and area.

Plaintiff 1-2 (Person Entitled to Benefit from Use), Plaintiff 2 (Land Number 1 omitted), Plaintiff 2, Plaintiff 2, Plaintiff 2, Plaintiff 2, Plaintiff 2, Plaintiff 3 (Land Number 2 omitted), Plaintiff 2, Plaintiff 2, Plaintiff 3 (Land Number 2 omitted), Plaintiff 3 (Land Number 3 omitted), Plaintiff 4, Plaintiff 4 (Land Number 4 omitted), Plaintiff 702BL 332, Plaintiff 4, Plaintiff 5, Plaintiff 4, Plaintiff 5 (Land Number 5 omitted), and Plaintiff 2, Plaintiff 3, Plaintiff 2, Plaintiff 2, Plaintiff 333, Plaintiff 4962, Plaintiff 33 (Land Number 3 omitted), and Plaintiff 1,062, Plaintiff 4 (Land Number 4 omitted), Plaintiff 702BL 332.9, Plaintiff 4, Plaintiff 5, Plaintiff 5, respectively.

C. On the previous land of this case, the Defendant installed and owned each obstacles of this case, and the Plaintiff Union applied for permission to remove obstacles on November 2, 201 in order to remove the buildings, obstacles, etc. located in the land scheduled for substitution of land of this case, including each obstacles of this case, following the implementation of an urban development project. Accordingly, on November 7, 2011, Kimhae-si shall endeavor to compensate the owner of the objects prior to the removal of obstacles for consultation, and (2) if it is difficult to resolve smoothly, the procedure for filing an objection against the losses prior to the removal of obstacles should be sufficiently informed in advance, and (3) in connection with the removal of obstacles, the Plaintiff Union permitted the removal of obstacles by attaching such conditions as prior to the procedures under relevant Acts and subordinate statutes to prevent safety accidents from occurring at the time of removal.

D. The Plaintiff Union attempted to pay KRW 146,511,960 to the Defendant with obstacles as compensation in accordance with the adjudication of compensation for damages rendered by the Gyeongnam-do Regional Land Tribunal on May 1, 2012. However, the Defendant refused to receive the compensation and deposited the said compensation on June 22, 2012.

E. Meanwhile, the Defendant, who is dissatisfied with the above judgment of compensation for loss, filed a lawsuit seeking the increase of the acquisition cost compensation or the compensation for transfer by Changwon District Court 2012Guhap1721. On May 7, 2013, the said court rendered a judgment ordering the increase of the compensation for trees and facilities KRW 3,233,620, and the Plaintiff Union deposited the increased compensation for loss on May 24, 2013, but the said judgment is still pending in the appellate court.

[Ground of Recognition] A without dispute; Gap evidence 6 through 9, evidence 2-6 through 3, evidence 4-1, 2, 5-6 through 8, 6, 8, evidence 9-2, and evidence 14 through 16; the result of the appraisal commission to the first instance court for the intellectual work; the purport of the whole pleadings

2. Determination on this safety defense

In order to implement the instant urban development project, the Defendant asserted that the Plaintiff Union did not have the standing to file the instant lawsuit, since the Plaintiff Union suspended the use and profit-making of the instant reserved land for replotting and had the contractor perform the construction work, and thus, the Plaintiff Union did not have the standing to file the instant lawsuit.

However, in a lawsuit for performance, since a person asserts that he/she is the person entitled to sue, whether he/she is qualified to sue in his/her own assertion, and it does not require that the plaintiff is the person entitled to demand performance (see Supreme Court Decision 94Da14797 delivered on June 14, 1994, etc.). The defendant's defense on the principal safety cannot be accepted.

3. Judgment on the main claim

A. Determination as to the claim by Plaintiffs 2, 3, and 4 based on the ownership of the previous land of this case

1) Summary of the assertion

Plaintiff 3 terminated the lease contract with the Defendant on Plaintiff 3’s previous land, on the ground that the Defendant was in arrears to pay rent on a yearly basis from January 2010. Moreover, the Defendant used Plaintiff 2 and 4’s previous land without any title.

Even if the designation of a reserved land for replotting takes effect, since the ownership of the previous land still exists in the above plaintiffs, the defendant is obligated to remove each obstacle of this case and deliver the previous land owned by the above plaintiffs among the previous land of this case.

2) Determination

The above plaintiffs' assertion is based on the premise that the exercise of the right to use and benefit from the previous land of this case by the defendant was hindered by the defendant. However, the Urban Development Act provides that if the previous land is designated as a reserved land for replotting, the owner of the previous land shall not use or benefit from the previous land (Article 36 (1) of the Urban Development Act). Therefore, in the case of the above plaintiffs, the above plaintiffs cannot claim for benefit from the previous

Therefore, the above arguments of plaintiffs 2, 3, and 4, which differing from these premises, are without merit to further examine the remainder.

B. Determination as to the claim part of the Plaintiff Union based on the project operator status

1) Summary of the assertion

As the Plaintiff Cooperative is a project implementer of the instant urban development project, and has the right to remove obstacles, such as buildings, etc. pursuant to Article 38 of the Urban Development Act, the Defendant is obligated to remove each obstacle of this case and deliver the previous land to the Plaintiff Cooperative.

2) Determination

In light of the legislative purport of Article 38(1) of the Urban Development Act (hereinafter “instant provision”) that the said provision does not directly impose the duty of removal or removal on the owner or occupant of buildings, obstacles, etc. (hereinafter “the instant provision”) and the said provision does not provide that the project implementer may remove or remove buildings, etc. located within the land scheduled for replotting if necessary to achieve the purpose of the project, but does not provide that the project implementer may order the owner or occupant of buildings, etc. to relocate or remove such buildings, obstacles, etc.; and (3) the purpose of the instant provision is not to actively realize the state necessary to achieve the purpose of the project, rather than to rectify the illegal state that impedes the implementation of the project, and the expenses incurred in the removal or removal of buildings, obstacles, etc. are to be borne by the project implementer as expenses incurred in the project.

In light of the above, the instant provision is merely a provision that grants a project implementer the right to directly remove or remove a building, etc., and cannot be said to be a provision that grants a project implementer the right to order the project implementer to relocate or remove the building, etc.

4. Judgment on the conjunctive claim

A. Summary of the assertion

The Plaintiff Union acquired ownership of each of the obstacles of this case by paying compensation at acquisition price for each of the obstacles of this case in accordance with the adjudication of the local Land Tribunal of Gyeongnam-do. Accordingly, the Defendant is obligated to order the Plaintiff Union, who is the owner, to remove each obstacles of this case.

B. Determination

According to the evidence Nos. 12, 14, 15, and 16, it is recognized that the Gyeongnam-do Regional Land Tribunal made a judgment of compensation for losses, and the fact that the plaintiff union deposited compensation for losses to the defendant based on the acquisition price of each obstacle of this case according to the above judgment.

However, in light of the purport of expropriation compensation for obstacles under the relevant Acts and subordinate statutes, such as Article 75(1)2 and (6) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Act”), Articles 33(4) and 36(1) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, and the principle of reasonable compensation or reasonable compensation, even in cases where a project operator compensates for obstacles that interfere with the implementation of a project pursuant to the proviso of Article 75(1)2 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Act”), if the project operator compensates for such obstacles at the price of the relevant goods pursuant to subparagraph 3 of the proviso of Article 75(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (see Supreme Court Decision 2010Da94960, Apr. 13, 2012, etc.).

Therefore, there is no evidence to acknowledge that the Plaintiff acquired ownership of the obstacles of this case through the procedure of expropriation, and thus, the aforementioned preliminary claim is not accepted (However, a project operator may not demand the owner of the obstacles to remove the obstacles at his/her own expense and remove them directly at his/her own expense unless there are special circumstances, such as that the owner of the obstacles would remove them at his/her own expense pursuant to the proviso of Article 33(4) of the above Enforcement Rule, and in such a case, as long as the owner of the obstacles does not have the above obstacles or their components within a considerable period of time that does not transfer them, it is interpreted that the project operator is in the position to remove the obstacles of this case and lose the value of the goods generated in that process.

5. Conclusion

Therefore, all of the plaintiffs' claims in this case are dismissed without merit, and the judgment of the court of first instance which dismissed the plaintiffs' primary claims is just in conclusion. Accordingly, the plaintiffs' appeal and the preliminary claims of the plaintiff union added in the court of first instance are dismissed as all of them are without merit. It is so decided as per Disposition.

[Attachment]

Judges Kim Kim (Presiding Judge)