Whether “the conversion of public works” under Article 91(6) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor is recognized as a “public institution prescribed by Presidential Decree among the public institutions under Article 4 of the Act on the Management of State, Local Governments, or Public Institutions” by an operator of the changed public works (negative)

The main sentence of Article 91(6) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”) is to restrict the exercise of a redemptive right by recognizing the conversion of the so-called “public works” in order to ensure that the original public works are changed to another public works with a high level of public interest and that the continued use of the land is necessary for such other public works, after recognizing the exercise of a redemptive right, and further to acquire the land through consultation, acquisition, expropriation, etc., the latter part of Article 91(6) of the Land Compensation Act is not inconsistent with a literal interpretation to interpret that the provisions on the subject of the implementation of the project in the preceding part are applied to the latter part, even though there is no separate provision on the project operator, even though there is no provision on the latter part of Article 91(6) of the Land Compensation Act.

The legislative intent and language of Article 91(6) of the Land Compensation Act, and the amendment of the former Land Expropriation Act (repealed by Article 2 of the Addenda to the Land Compensation Act, enacted by Act No. 6656 of February 4, 2002) on December 31, 1981, when the land expropriated for public works needs to be diverted for other public works due to changes in circumstances thereafter, the former focus was on avoiding the repetition of the expropriation procedure by restricting the repurchase right, and there was no significant meaning as to the project undertaker of the changed public works. In light of the fact that the private enterprise is very high in the public interest in the construction of roads, railroads, ports, airports, etc., conducted with permission, authorization, approval, designation, etc. under the relevant Acts, the purpose of the conversion of the public works is to prevent the use of the changed public works, and if the project implementer does not recognize the change of the changed public works only on the ground that it is a private enterprise, the purpose of the change of the changed public works system should be limited to the change of the public works.

Article 91(6) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects; Article 71(7) of the former Land Expropriation Act (repealed by Article 2 of Addenda to the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Act No. 6656 of Feb. 4, 2002) (see current Article 91(6) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Dong-young et al., Counsel for plaintiff-appellant)

Plaintiff (Law Firm Yangyang, Attorneys Kim Mine-hun et al., Counsel for the plaintiff-appellant)

The Korea Land and Housing Corporation and one other (Law Firm Oyn, Attorneys Final Ap et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2013Na23593 Decided December 17, 2013

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

1. The judgment of the court below

(1) The lower court: (a) paid KRW 576,352,00 to the Plaintiff for the instant housing site development project (hereinafter “instant housing site development project”) under Article 4 subparag. 5 of the Act on Acquisition of and Compensation for Land, etc. for Public Works (hereinafter “Land Compensation Act”); and (b) completed the registration of ownership transfer for the instant housing site development project on June 3, 2005 (hereinafter “land to be expropriated”); (c) the number of the instant land to be expropriated was changed to 6 lots in the process of implementing the instant housing site development project; and (d) the portion of the instant housing site development project, which was incorporated into the instant 10 square meters into the Republic of Korea and 10 square meters for the purpose of using the same as 10 square meters; and (e) the portion of the instant housing site development project, which was incorporated into 20 square meters for the purpose of using the instant housing site development project, shall be deemed as 10 square meters for the purpose of using the same as 15 square meters for the instant housing site development project.

B. Furthermore, the lower court determined that, inasmuch as the instant land incorporated for the instant housing site development project is not used for the original purpose of the instant housing site development project, and at least the housing site development project was abolished or altered, the Plaintiff is entitled to exercise the right to repurchase the instant land incorporated for the Defendant Corporation, which is the implementer of the housing site development project, pursuant to Article 91(1) and (5) of the Land Compensation Act, and that Defendant Republic of Korea, who is the third purchaser, may oppose the right to repurchase by means of the right to repurchase. As such, Defendant Republic of Korea is liable to implement the procedure for cancellation of ownership transfer registration of this case to Defendant Corporation, and the procedure for ownership transfer registration of the instant land incorporated for the instant housing site development project on November 22, 2013, as the land incorporated for the instant housing site development project is used for the instant housing site development project, which is the initial purpose of the relevant housing site development project, the Plaintiff’s new land incorporated for the instant housing site development project, which is a public works project operator’s new public works project or the changed public project operator’s new public works project.

2. The judgment of this Court

A. Article 91(6) of the Land Compensation Act provides that “If the State, a local government, or a public institution acquires or expropriates land necessary for a public project with the approval of a project, and then the public project is changed to any other public project provided for in subparagraphs 1 through 5 of Article 4, the period for exercising the right to repurchase pursuant to paragraphs (1) and (2) shall be calculated from the date when the change of the public project is publicly announced in the Official Gazette.” This is to recognize the exercise of the right to repurchase, and to restrict the exercise of the right to repurchase by recognizing the so-called “the change of the land to be acquired” of the new public project to prevent the use of the new public project by consultation or expropriation, if the new public project is deemed to have been changed to a high level of public interest, and the new public project is not subject to Article 91(6) of the Land Compensation Act (see Supreme Court Decision 91Da2927, Apr. 28, 192).

B. In addition, the Supreme Court Decision 2010Da30782 Decided September 30, 2010, which was decided by the court below, is the case where the existing project operator should acquire the ownership of the relevant land again in order to implement the changed public project by disposing of the relevant land to a third party. However, this case is a case where the existing project operator, the Defendant Corporation, at the time of the project approval of the instant expressway construction project, transferred the ownership of the land to the Defendant who was scheduled to be the owner of the instant land to be incorporated into the Republic of Korea at the time the project approval was granted, and the land owner of the instant land should not obtain the ownership of the instant land again for the implementation of the instant expressway construction project, and the above Supreme Court Decision 201Da30782 decided on September 30, 2010, which held that the operator of the changed public project should own the land site. Therefore, the legislative purport of the public project conversion system cannot be applied to this case as it is in conformity with the legislative purport of the aforementioned change system.

C. Nevertheless, the lower court determined that the instant housing site development project and the instant expressway construction project do not constitute the conversion of public works as stipulated in Article 91(6) of the Land Compensation Act, on the grounds that the project implementer is a private company, and is the private company, and the private company and the private company do not own the land incorporated into the instant highway. In so doing, the lower court erred by misapprehending the legal doctrine on the conversion of public works, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, 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.

Justices Min Il-young (Presiding Justice)