When a land readjustment project operator has set up a defense that he/she has the right to incorporate and use the road site, the purport thereof.

It is not legally permissible for a land readjustment project operator to designate the land in the urban planning or the land in the land readjustment project district separately from the urban planning project district as a substitute lot to persons other than the trade owners in the land, and thus, it can be deemed that the land readjustment project operator included the above purport in the defense that there is a right to use the land as a road site.

Articles 31 and 36 of the former Urban Planning Act, Articles 46 and 61 of the Land Readjustment Projects Act

Plaintiff 1 and four others, Counsel for the defendant-appellant

Attorney Lee Jae-ok, Counsel for the plaintiff-appellant

Seoul High Court Decision 78Na976 delivered on July 21, 1978

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The defendant's attorney's grounds of appeal are examined.

With respect to No. 1:

In short, the issue is that the defendant's possession of the land owned by the plaintiffs by the road construction project and the use of the land owned by the plaintiffs was required to return unjust enrichment acknowledged by the court below as requested by the plaintiffs if the possession was not followed by the plaintiffs' consent to use the land or the procedure under the Land Expropriation Act. However, during the defense that the defendant's title to use the land as a road site has the right to use the land as a road site, it also includes the purport that the agreement has been reached to designate the substitute land in the urban planning or the land readjustment project to be implemented by the city planning or the land readjustment project to pay the compensation under the Road Act. Thus, the court below erred by misapprehending the fact that the defendant's right to use the land was not followed by legitimate procedures, such as land expropriation through the public notice of the tax items under Article 12 of the former Urban Planning Act.

As the former Urban Planning Act (Act No. 983, Jan. 20, 1962) was enacted on Aug. 3, 1966, the land substitution plan shall be established in order to take a land substitution disposition for the whole land within the project site area after the completion of construction work, and there is no land substitution plan under the Urban Planning Act after the removal of the overlapping land rearrangement provisions under the amended Urban Planning Act on Mar. 14, 1967, and no project operator shall implement a project through consultation or land expropriation. Under the above provisions of the former Urban Planning Act, Articles 31, 36, 46 (Land substitution Plan), and 61 (Land Substitution Disposition), etc. of the current Urban Planning Act, the land substitution plan shall be established in order to take a land substitution disposition for the whole land within the project site. Thus, the defense that the defendant has the right to use this land as a road site is not only the road expansion project under the Urban Planning Act, but also the purport that the land owner has purchased land by consultation or expropriated within the urban planning zone.

With respect to the second ground:

It is acknowledged by the court below that the purpose of Paragraph 2 of the Addenda to the Enforcement Decree of the Urban Planning Act of December 30, 1972 and Paragraph 2 of the Addenda to the Enforcement Decree of the Road Act of March 21, 1973 should be regarded as legitimate as the "decision of urban planning" and "construction of roads", and it does not regard the defendant's possession of the land for which no legitimate expropriation procedure has been taken as legitimate possession, but it should be decided by the Supreme Court. However, the court below rejected the defendant's claim for damages under the premise that the defendant's claim for damages should be rejected under the premise that Article 79 of the former Enforcement Decree of the Road Act of the Road Act of December 21, 199, as well as the public notice under Article 12 of the former Urban Planning Act of December 30, 1972 and Article 9 Paragraph 1 of the former Enforcement Decree of the Road Act of the same Act of the same Act of March 21, 197.

However, the answer to the fact-finding inquiry is a case under Articles 4 and 7 of the former Urban Planning Act, and it is a reply to the contents of the basic plan decision and the date and time of incorporation into the road of this case. It is not about the public notice of tax items under Article 12 of the same Act or the public notice of the applicable mutatis mutandis road under Article 9 (1) of the former Enforcement Decree of the Road Act, and there is no data to recognize that the consultation with the owners of this case about compensation for losses under the Road Act was made on the record. Thus, there is

Therefore, the appeal is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ju (Presiding Justice)