Namyang-si (Law Firm LLC, Attorneys Choi Dai-hee et al., Counsel for the defendant-appellant)

Korea Rail Network Authority (Law Firm One, Attorney Kim Tae-tae, Counsel for defendant-appellant)

November 15, 2016

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s disposition of imposition of KRW 145,98,700 of indemnity against the Plaintiff on March 16, 2016 shall be revoked.

1. Details of the disposition;

A. The Namyang-si Mayor authorized an implementation plan for the urban planning facility project under the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”), as shown below. Accordingly, the Namyang-si Mayor designated as the project implementer: ① the land outside 35-1, the land outside 12, the land outside 320-30, the land outside 372-2, and the land outside 13, the land outside 353, and the land in this case (hereinafter “one land in this case”), the land in this case was all opened from the land outside 4, the land in this case; ② the land in this case was opened from the land in this case, the land in this case, the land in this case, and the land in this case, the land in this case was opened from the land in this case, the land in this case, the land in which the 353, and the land in this case, the land in this case, the land in this case, the land in this case, the land in this case, and the land in this case, the land in this case was opened from the land in this case.

On June 12, 2014, the name of the project included in the main sentence of this case, the title of the land 1-204 of this case, which is the site of the project for the public announcement of the authorization of the implementation plan, shall be 320-30, and 2 parcels (No. 2014-179, the public announcement of the public announcement of the public announcement of the land 320-30, 200, 325, 205, 205, 35, 205, 205, 35, 30,000,000,000,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000.

B. On March 16, 2016, the Defendant entrusted management affairs by the Minister of Land, Transport and Maritime Affairs, who is the managing authority of the instant land, issued a disposition imposing KRW 145,98,700 of the State Property Act (hereinafter the instant disposition) on the ground that “the Plaintiff occupied and used the instant land without permission for use, until December 31, 2015,” on the grounds that “the Plaintiff occupied and used the instant land without permission for use, from the date of public announcement of each project implementation authorization for the instant project (hereinafter

C. Meanwhile, the completion of construction on the instant project was not publicly notified.

[Ground of recognition] Facts without dispute, Gap 1, 2 (including paper numbers), Eul 1, 7, 8, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Pursuant to Article 65(1) of the National Land Planning and Utilization Act, the instant land was gratuitously reverted to the Plaintiff. Therefore, the instant disposition imposing indemnity on the premise that it is State property is unlawful.

2) The permission for use and profit-making under Article 92(1) of the National Land Planning and Utilization Act is deemed to have been granted. Therefore, the instant disposition imposing indemnity on the premise that the Plaintiff occupied the instant land without permission is unlawful.

3) Of the instant land, a total of 3,020 square meters of the instant land is a bicycle lane granted a right of free use. Therefore, the part regarding the said area among the instant disposition is unlawful.

B. Determination

1) Whether the land of this case gratuitously reverts to the Plaintiff

A) Article 65(1) of the National Land Planning and Utilization Act provides that “Where a person who has obtained permission for development (including authorization, permission, and approval, etc. which has undergone consultation legally construed as permission for development pursuant to other Acts; hereafter the same shall apply in this Article) is an administrative agency, where a person who has obtained permission for development installs new public facilities or public facilities replacing existing public facilities, notwithstanding the State Property Act and the Public Property and Commodity Management Act, the newly installed public facilities shall gratuitously revert to the management agency in charge of managing such facilities, and the existing public facilities shall gratuitously revert to the person who has obtained permission for development.” Article 65(5) of the same Act provides that “Where a person who has obtained permission for development acts is an administrative agency, the person who has obtained the permission for development shall notify the management agency of the relevant facilities of the kinds of the public facilities and detailed items of land when the completion inspection of development activities is completed.” In such cases, Article 99 of the same Act also applies mutatis mutandis to “the said provisions to the construction of new public facilities or public facilities replacing the existing public facilities under urban/Gun planning facilities” (hereinafter).

The Namyang-ju City Mayor was authorized to implement the instant project with the authorization of the implementation of an urban or Gun planning facility project, but the fact that the completion of construction of the instant project was not publicly announced is as seen earlier. Therefore, it cannot be deemed that the instant land was reverted to the Plaintiff. Therefore, the Plaintiff’s above assertion is without merit

B) The purport of the Plaintiff’s assertion is that the Plaintiff is in a position to acquire ownership after completion of the construction of the instant project, and thus, the Plaintiff does not constitute an unauthorized occupant entitled to indemnities. However, the provision of this case applies only to cases where a project operator, who is an administrative agency, newly acquires land necessary for the construction of public facilities under private law or public law, and completes the construction of public facilities by means of a method, etc. under a contract or public law. It does not apply to cases where a project operator installs public facilities without legitimate acquisition of land necessary for the construction of the public facilities and occupies and uses them by the State or a local government. This interpretation also applies to cases where the land necessary for the construction of the public facilities is State-owned land (see Supreme Court Decision 2011Da103069, Mar. 15, 2012). In light of the fact that, in order to implement the instant project, there is no evidence to acknowledge that the Plaintiff’s land, the land of this case, which is the site for the instant project, has been newly acquired under private law or public facilities installed under public law.

2) Whether permission for use and profit-making under Article 92(1) of the National Land Planning and Utilization Act is deemed to be granted

A) Article 92(1) of the National Land Planning and Utilization Act provides that “When the Minister of Land, Infrastructure and Transport, a Mayor/Do Governor, or a large city mayor prepares or modifies an implementation plan, or approves or modifies an implementation plan pursuant to Article 88, the following matters about authorization, permission, etc. about the implementation plan consulted with the head of the relevant administrative agency pursuant to Article 8(3) shall be deemed to have been granted authorization, permission, etc., and where an implementation plan is publicly announced pursuant to Article 91, the permission for use or profit under Article 24(2) of the State Property Act shall be deemed to have been granted.” Meanwhile, according to Article 92(3) of the National Land Planning and Utilization Act, the Minister of Land, Infrastructure and Transport, a Mayor/Do Governor, or a large city mayor prepares or modifies an implementation plan, or approves or modifies an implementation plan, if the details thereof fall under any of the subparagraphs of paragraph (1).

B) In the instant case, if the purport of the entire pleadings is added to each of the statements in the Health Team, Gap 3 through 5, 7, 8, and Eul 10 (including each number), the Plaintiff requested the Defendant to gratuitously revert to the land of this case by running the instant business, and the Defendant refused such request and continuously demanded compensation for losses. Thus, it cannot be deemed that the Plaintiff consulted with the head of the relevant administrative agency about the "permission for use or profit-making" of administrative property. Accordingly, the Plaintiff's assertion is without merit.

3) As to the bicycle lane

A) According to the statements in Gap evidence Nos. 9 and 10, the plaintiff and the defendant entered into an agreement on January 29, 2013 for the implementation of the Chuncheon bicycle path development project. The main contents are as follows. Part of the land in this case (the total of 3,020 square meters) is included in the bicycle lane and ancillary facilities created and contributed by the plaintiff.

This project included in the main sentence shall be promoted as a donation project (subject to bicycle lanes and auxiliary facilities) under Article 13 (1) of the State Property Act. After obtaining permission for use under Article 30 of the State Property Act, it shall be used, and the defendant shall be exempted from usage fees during the period calculated pursuant to Article 34 of the State Property Act

B) Article 34(1) of the State Property Act provides that usage fees may be exempted in cases where a donor, etc. is permitted to use donated property for the purpose of making it administrative property as administrative property. According to each description of evidence Nos. 4 through 6, no permission to use donated property or administrative property was granted pursuant to the above Convention. Rather, the defendant is recognized as refusing to accept the Plaintiff’s contribution in accordance with the response to the Ordinance of the Ministry of Strategy and Finance.

3. Conclusion

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

Judge Park Han-chul

1) According to Article 88(2) of the National Land Planning and Utilization Act, if an administrative agency is an implementor of an urban planning facility project, the authorization of the implementation plan is not required separately. However, the Namyang-ju City Mayor authorized the implementation plan of the urban planning facility project as the project implementer.

Note 2) appears to be a clerical error in Article 30 of the State Property Act.