[1] In a case where Gap Housing Redevelopment Association acquired the ownership of the land on which the road was constructed while implementing the redevelopment project, and Gap association concluded a donation contract on the land above with Eul local government, and claimed that the contract was null and void, and sought restitution of unjust enrichment, the case affirming the judgment below which held that the "free reversion" of the "infrastructure newly installed by the implementation of the rearrangement project" under Article 65 (2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents is an original acquisition as a real right change under the mandatory provisions, and is distinguishable from the acquisition of ownership due to the donation, which is a kind of gift contract or donation contract, and thus, the road constructed on the above land was gratuitously reverted to Eul local government regardless of whether Gap association had a separate legal act as the "infrastructure newly installed by the implementation of the rearrangement project"

[2] In a case where the cost of installation of the newly installed infrastructure under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents exceeds the appraised value of the disused infrastructure, whether the project implementer may demand a project implementer to settle the excess amount against the authorizing office or the managing office, or to return it by unjust enrichment (negative)

[1] Article 65 (2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (wholly amended by Act No. 14567, Feb. 8, 2017) (see current Article 97 (2)) / [2] Article 60 (1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (wholly amended by Act No. 14567, Feb. 8, 2017) (see current Article 92 (1)), Article 64 (1) (see current Article 96), Article 65 (2) (see current Article 97 (2)), Article 741 of the Civil Act

[2] Supreme Court Decision 2006Du11149 Decided April 13, 2007

Nowon-jin First District Housing Redevelopment Association (Law Firm Site, Attorneys Lee Dog-sik et al., Counsel for the plaintiff-appellant)

Dongjak-gu Seoul Metropolitan Government (Seocho Law Firm, Attorneys Park Sang-chul, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2016Na2044934 decided December 22, 2016

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

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

A. The lower court rejected the Plaintiff’s claim for restitution of unjust enrichment on the following grounds.

“Free reversion” under Article 65(2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (wholly amended by Act No. 14567, Feb. 8, 2017; hereinafter “Urban Improvement Act”) is an original acquisition as a change in real rights under a mandatory provision, and is distinguishable from the acquisition of ownership by donation, which is a kind of donation contract or donation contract.

A road established on the instant land is “infrastructure newly established by the implementation of a rearrangement project” under Article 65(2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions, regardless of whether there was a separate legal act related thereto, the road was gratuitously reverted to the Defendant, a local government, who is a local government, to manage the relevant facilities when the approval of the completion was notified under Article 65(2) and (4) of the Act.

Therefore, in accordance with each of the conditions of this case, the gift contract on the land of this case was concluded between the Plaintiff and the Defendant, and accordingly, the Defendant acquired the ownership of the land of this case, but the gift contract between the Plaintiff and the Defendant became null and void as a matter of course due to the cancellation of each of the conditions of this case, the Plaintiff’s assertion that the Defendant

B. Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on the interpretation of Article 65(2)

2. As to grounds of appeal Nos. 3 and 4

Article 64(1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions (hereinafter “Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions”) provides that “The maintenance and improvement infrastructure newly installed by a project implementer, other than the head of a Si/Gun or Housing Corporation, shall gratuitously vest in the State or a local government to manage the infrastructure.” Meanwhile, the latter part of Article 65(2) provides that “The maintenance and improvement infrastructure owned by the State or a local government, the purpose of which is to be abolished due to the implementation of a rearrangement project, shall be to gratuitously be transferred to the project implementer within the extent equivalent to the installation cost of the newly installed fundamental infrastructure, and the cost incurred therein shall be borne by the project implementer in principle (Article 60(1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions).” The legislative purport of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions is to ensure that the project implementer’s ownership within the scope equivalent to the installation cost of the newly installed fundamental infrastructure shall be transferred to the project implementer without compensation within the scope of 106.

The lower court rejected the Plaintiff’s claim for the instant settlement, on the ground that the cost of installing newly installed infrastructure exceeds the value of the infrastructure subject to disuse even if excluding the value of the instant land, and it is difficult to view that there exists a settlement amount based on Article 65(2) of the Act on the Improvement of Urban Areas and Dwelling Conditions to be paid by the Plaintiff, notwithstanding the cancellation of each of the instant conditions, on the ground that the Plaintiff’s damage was not based on the Defendant’s profit but based on a sales contract with the Republic of Korea,

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s reasoning was inappropriate, but its conclusion rejecting the Plaintiff’s claim for the instant settlement amount is acceptable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the time and standard for calculating settlement amount

3. Conclusion

Therefore, the appeal is dismissed, 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 Kwon Soon-il (Presiding Justice)