Where the first public announcement of project implementation is made for a specific land as a site subject to the project implementation under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, and there is authorization to substantially change the main contents of the first project implementation authorization after the expropriation authority is granted to the project implementer as the project approval under the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor is

The approval for project implementation under 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”) has the nature of the approval for project implementation concerning the development and construction in the land subject to the project implementation plan, and granting the right to expropriate the land pursuant to paragraph (1) of the same Article. Therefore, if a project implementation plan which uses a specific land as a site subject to the first project implementation becomes void automatically or cancels by the court’s final and conclusive judgment, the deemed project approval thereby becomes void.

However, in a case where the first project implementation authorization to use a specific land as a site for the first project implementation, and the validity of the said project authorization is maintained accordingly, barring any special circumstance, the project authorization deemed granted through the first project implementation authorization shall continue to have its validity notwithstanding the authorization of modification, barring any special circumstance. Even in a case where authorization to substantially change the main contents of the first project implementation authorization by changing the project implementation plan, such as the structure and content of a building, into a large scale without any change, with respect to the site for the project implementation itself, even in a case where authorization was granted for a substantial change of the first project implementation authorization, the first project implementation authorization shall continue to exist, and may only be invalidated at the time of the authorization of change, and there is no difference between the two before and after the authorization of change, barring any special circumstance. In light of Article 24 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”), only if the land for the first project implementation authorization becomes unnecessary due to a partial change in the project implementation authorization by the method that is excluded from the first project implementation authorization (see Article 24(1).).

In light of the structure and purport of the Urban Improvement Act and the Land Compensation Act, if the project approval deemed effective by the first public notice of project implementation authorization that takes a specific land into account as a site subject to project implementation, the principle is to calculate the amount of compensation as of the date of public notice of the first public notice of project implementation authorization. If it is deemed that the base point for calculating the amount of compensation is changed each time when the first public notice of project implementation authorization is given, the land for which the need for expropriation is maintained from the time when the initial public notice of project implementation authorization is given is not only unfair because the base point for calculating the amount of compensation is changed every time due to irrelevant circumstances, and thus, it cannot be deemed reasonable for the project implementer

Articles 20(1), 22(3), 24(1) and (5), 70(1) and (4) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, Article 26 (see current Article 50), and Article 40(1) (see current Article 65(1) and (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)

Plaintiff 1 and two others (Law Firm Bemst, Attorneys Shin Young-cheon, Counsel for the plaintiff-appellant)

Large Two District Housing Redevelopment and Improvement Project Association (Law Firm-gu, Attorneys Park Jeong-hee et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2016Nu22728 decided December 23, 2016

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. (1) Articles 20(1) and 22(3) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”) stipulate that project approval shall be obtained from the Minister of Land, Infrastructure and Transport in order for a project operator to expropriate or use land, etc., and project approval shall take effect from the date of announcement. Such project approval is an administrative disposition granting the right to expropriate, and accordingly the scope of the subject matter to be expropriated is determined, and the right holder has public law rights to oppose the present and future right holder of the subject matter (see Supreme Court Decision 93Nu19375, Nov. 11, 1994).

Meanwhile, Articles 40(1) and 40(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”) provide that in the case of a rearrangement project conducted in an improvement zone under the Urban Improvement Act, the authorization of the project under the Land Compensation Act and the announcement thereof shall be deemed to have been made at the time when the authorization for the implementation of the project is publicly announced. Therefore, the association, which is the project implementer of the rearrangement project under the Urban Improvement Act, shall be

In addition, according to Article 40(1) of the Urban Improvement Act and Article 70(1) and (4) of the Land Compensation Act, in the case of expropriation for a rearrangement project, the amount of compensation is calculated on the basis of the officially announced land price as of the date of public announcement of the authorization for project implementation deemed the date of public announcement of the authorization for project implementation, which is the basic date before the date of public announcement of the authorization for project implementation deemed the date of public announcement

(2) The project implementation authorization under the Act on the Improvement of Urban Areas and Dwelling Conditions has the nature of the project approval relating to the granting of the right to expropriate land in accordance with the aforementioned section of Paragraph (1) above, while approving the development and construction in the land subject to the project implementation plan. Therefore, if a project implementation plan, which designates a certain land as the site subject to the project implementation, is automatically null and void or cancelled by the court’s final and conclusive judgment, the project

However, in a case where the first project implementation authorization, which has a specific land as a site for the first project implementation, maintains its validity, and accordingly the legal effect of the project authorization is maintained, barring any special circumstance, the project authorization deemed to have been granted through the first project implementation authorization shall continue to have its validity notwithstanding the authorization of modification, barring any special circumstance. Even in a case where authorization to substantially alter the main contents of the first project implementation authorization is granted by changing the contents of the project implementation plan, such as the structure and content of a building, without any change, with respect to the site for the project implementation itself, even if the first project implementation authorization is valid, and the first project implementation authorization may continue to exist, and the future is only invalidated from the time of authorization of modification, and there is no difference between the necessity for expropriation of the site for the project implementation, unless there are any special circumstances. In light of Article 24 of the Land Compensation Act, in a case where the expropriation of a part of the land for the first project implementation becomes unnecessary due to the partial change of the project, only a part of the land for the first project implementation authorization becomes void (see Articles 24(1) and 5).

In light of the structure and purport of the Urban Improvement Act and the Land Compensation Act, if the project authorization deemed effective by the first public notice of project implementation authorization that takes a specific land into account as a site subject to project implementation, it is the principle to calculate the amount of compensation as of the date of the first public notice of project implementation authorization. If it is deemed that the base point for calculating the amount of compensation is changed each time when the first public notice of project implementation authorization is given, the land for which the need for expropriation is maintained at the time when the initial public notice of project implementation authorization is given is not only unfair because the base point for calculating the amount of compensation is changed every time due to irrelevant circumstances, and thus, it cannot be deemed reasonable for the project implementer to arbitrarily change

2. Review of the reasoning of the lower judgment, the evidence duly admitted, and the relevant legal doctrine reveals the following circumstances.

(1) In a lawsuit seeking confirmation of invalidity of the Defendant’s initial project implementation plan, the Busan District Court (2009Guhap6071) rendered a judgment against the Defendant on May 13, 201, on the ground that “The consent for the implementation of the project proposed before and after the approval of the Promotion Committee cannot be deemed to have been submitted before and after the implementation plan was prepared, and the consent cannot be deemed to have been legitimate. Even if the consent is deemed to have been effective, since the project contents were essentially changed even if the consent was deemed to have been changed, it is necessary to obtain separate consent.” The Busan High Court (201Nu2040) dismissed the Defendant’s appeal against it on November 9, 201, and the Defendant appealed.

(2) During the period of the final appeal, the Defendant held an extraordinary general meeting and passed a resolution to establish a project implementation plan with a change in the number of buildings, the number of buildings, the number of households, the building-to-land ratio, the building volume ratio, the volume ratio, the total floor area, etc., and the approval and announcement of the change of the project implementation plan was made.

(3) On November 28, 2013, the Supreme Court (2011Du30199) reversed the case on the ground that “if the main part of the first project implementation plan is substantially modified, and the first project implementation plan does not affect the rights and obligations of union members, there is no legal interest in seeking nullification thereof, so it may be deemed that the lawsuit in this case was unlawful. Accordingly, the Busan High Court (2013Nu3238) reversed the case and remanded the case to the court below. On June 11, 2014, the revised project implementation plan falls under a new project implementation plan as the substantial modification of the main part of the first project implementation plan, and it constitutes a new project implementation plan, and the Defendant’s first project implementation plan is not affected the rights and obligations of union members, and thus there is no legal interest in seeking nullification of the first project implementation plan.” This decision became final and conclusive as it is.

(4) At the time of approval of the initial project implementation plan, the cost of rearrangement project was increased than what was scheduled at the time of approval of the initial project implementation plan, and even if the outline of building design was changed, if the consent was prepared before the contents of the project implementation plan became final and conclusive, it cannot be deemed that the approval of the project implementation plan and the initial project implementation plan were unlawful merely because the consent was changed after the approval was made. Meanwhile, in the event that the project implementation plan was changed after the approval, the association has a duty to notify its members that it can withdraw the existing consent along with the modified project implementation plan. However, in this case, it is reasonable to deem that the defendant was delegated to the defendant as to the change of the project implementation plan because it stated that the consent was changed after the approval of the initial project implementation plan, and therefore, even if the defendant did not notify its members of the fact that the previous consent can be withdrawn in addition to the modified project implementation plan before the approval of the initial project implementation plan, it is serious and obvious that such change was not null and void (see Supreme Court Decision 2011Du25173, Feb.

3. Examining the above circumstances in light of the legal principles as seen earlier, it is reasonable to view that the compensation should be calculated on the basis of the date of first public notice of project implementation authorization even if the main parts of the first project implementation plan in this case were substantially modified

(1) The first project implementation plan of this case cannot be deemed to be null and void as a matter of course, and is not cancelled by the court's final and conclusive judgment. Accordingly, the project approval deemed to be valid by the public notice as to the project implementation plan, and the right to accept the project approval granted to the

(2) Even if the main part of the project implementation plan was substantially modified, it is mainly about the construction of buildings, and there is little difference between the implementation area and the site area, and the scope of the object to be expropriated in the initial project implementation plan is rarely changed.

(3) There is no reason to deem that the acceptance of the first project approval due to the approval of the project implementation plan has become unnecessary due to the approval of the project implementation plan, or otherwise there is no reason to deem that the right to expropriation granted to the defendant has expired.

4. Therefore, the lower court’s judgment to the same effect is justifiable as it is based on the legal doctrine as seen earlier. In so doing, it did not err by misapprehending the legal doctrine on the meaning of “business authorization” under Article 70(4) of the Land Compensation

5. Therefore, all appeals are 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 Min You-sook (Presiding Justice)