2018Da289788 Compensation for damages

A

Law Firm LLC (LLC)

Attorney Park Jong-il, Park Jong-il, Park Jong-chul,

Seodaemun-gu Seoul Metropolitan Government

Attorney Yu-sik, Counsel for the defendant-appellant

Seoul Western District Court Decision 2018Na34906 Decided October 26, 2018

November 14, 2019:

The judgment below is reversed, and the case is remanded to the Seoul Western District Court.

The grounds of appeal are examined.

1. A. Article 91(1) of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Act No. 11017, Aug. 4, 201; hereinafter “former Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor”) provides that “where all or part of the land acquired by a project operator becomes unnecessary due to the discontinuation or alteration of the relevant project or other causes within 10 years from the date of acquisition through consultation or expropriation of the relevant land, the landowner at the time of the date of acquisition or his/her general successor may repurchase the land by paying to the project operator an amount equivalent to the compensation paid for the relevant land, within one year from the date all or part of the relevant land becomes unnecessary, or within 10 years from the date of acquisition through consultation or expropriation of the relevant land.” The term “relevant project” as stipulated in the above provision refers to a specific specific project that has become the purpose of the acquisition through consultation or expropriation of the relevant land, and whether all or part of the acquired land becomes unnecessary” means the purpose and scope of the relevant land rationally acquired.

B. Meanwhile, Article 96(6) of the former Public Works Act, which provides for "the conversion of public works to which the exercise of the right of repurchase is restricted, is amended and implemented by Act No. 10239 on April 5, 2010, stipulated "the conversion of public works" under Article 4 subparag. 5 of the former Public Works Act, which provides for "the construction of housing or the creation of housing sites for the purpose of lease or transfer" as an object of "the conversion of public works."

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. The Plaintiff owned the instant land in Seodaemun-gu Seoul Pdong around 2005.

B. On June 25, 2004, the defendant head of the Gu announced that the project of urban planning facilities (parking lot) project of Seodaemun-gu publicly announced C (hereinafter referred to as the "instant parking lot project") was implemented for the purpose of providing parking convenience and improving the residential environment by resolving parking problems caused by multi-household residential concentration areas. The defendant announced the approval of the implementation plan of the instant parking lot project as D on May 12, 2005. The defendant acquired the consultation on the instant land included in the instant parking lot project site on September 13, 2005, and installed the instant public parking lot on October 31, 2006.

D. On October 19, 2006, the Mayor of Seodaemun-gu Seoul Special Metropolitan City (hereinafter “Seoul Special Metropolitan City Mayor”) designated the Seodaemun-gu G G belt including the land in this case as an urban renewal acceleration district, and on February 5, 2008, on the same public announcementJ announced the alteration of the urban renewal acceleration district and the urban renewal acceleration plan (hereinafter “instant urban renewal acceleration plan”) including the details of the disuse of the public parking lot in this case, including the land in this case.

E. On March 31, 2009, the defendant head of the Gu publicly notified the approval for the implementation of the L/C redevelopment project in the L/C housing redevelopment project (hereinafter referred to as the “instant redevelopment project”) by means of the Seodaemun-gu public announcement on March 31, 2009, and publicly notified the approval for the management and disposal plan of the instant case as N. on March 3, 2010.

F. Meanwhile, the Plaintiff asserted that the Housing Redevelopment Project Association removed the instant public parking lot after March 3, 2010, which was notified of the instant administrative disposition plan.

Mar. 22, 2017

3. A. Examining the foregoing facts in light of the legal principles as seen earlier, even if the instant renewal acceleration plan, including the details to abolish the instant public parking lot, is publicly announced, it is difficult to conclude that the instant public parking lot is objectively unnecessary for the instant parking lot project only by the public announcement of the urban renewal acceleration plan, since the utility as a parking lot or public interest is still used for the previous parking lot. Furthermore, it is difficult to conclude that the instant land was objectively unnecessary for the instant parking lot project. Furthermore, the instant redevelopment project can be deemed as falling under the “project for the construction of housing or the formation of housing sites, implemented by a person designated by a local government, as a public project under Article 4 subparag. 5 of the former Public Works Act, for the purpose of lease or transfer, and there is room for the Plaintiff to exercise the Plaintiff’s right to repurchase on the instant land only after March 3, 2010, by applying Article 91(6) of the former Public Works Act amended and implemented on April 5, 2010.

Therefore, the lower court should have deliberated and confirmed at any time when the land of this case was no longer needed for the instant parking lot business due to the removal of the above public parking lot after the intended to abolish the public parking lot of this case. After examining the application of Article 91(6) of the former Public Works Act, which amended and enforced April 5, 2010 with respect to the Plaintiff’s exercise of the Plaintiff’s right to repurchase.

B. Nevertheless, the lower court determined that the instant land was unnecessary for the instant parking lot business solely based on the announcement of the instant renewal acceleration plan publicly notified on February 5, 2008, and around that time, determined that the Plaintiff could exercise a redemptive right to the instant land, and maintained the first instance judgment that accepted the Plaintiff’s claim on the premise that the Plaintiff could exercise a redemptive right to the instant land. In so determining, the lower court erred by failing to exhaust all necessary deliberations or by misapprehending the legal doctrine on Article 91(1) of the former Public Works Act, thereby adversely affecting the conclusion of the judgment. The Defendant’s allegation

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Supreme Court Decision 200

Sang-ok

Justices Noh Jeong-hee

Justices Kim Jae-hwan in charge