Plaintiff (Law Firm Sejong, Attorneys Yoon Young-hoon et al., Counsel for the plaintiff-appellant)

Korea Land and Housing Corporation and one other (Law Firm Oyn Law, Attorneys Noh So-young, Counsel for defendant-appellant)

November 28, 2013

Seoul Central District Court Decision 2012Gadan103675 Decided April 17, 2013

1. Revocation of a judgment of the first instance;

2. A. Defendant Republic of Korea: (a) the procedure for the cancellation of ownership transfer registration completed pursuant to Article 9139 of the receipt on January 19, 201, with respect to the part of 205 square meters on the ship connecting each point of the items in the attached Form 1, 11, 56, 16, 55, and 1, among the 10,781.4 square meters of the land of Yeongdeungpo-gu ( Address 2 omitted) road to the Defendant Korea Land and Housing Corporation;

B. The Defendant Korea Land and Housing Corporation shall take procedures for the registration of ownership transfer on November 22, 2013 to the Plaintiff with respect to the part 205 square meters in the place of the above order.

D. Each performance shall be made.

3. The total costs of the lawsuit shall be borne by the Defendants.

The same shall apply to the order.

1. Basic facts

A. The Defendant Korea Land and Housing Corporation (hereinafter “Defendant Corporation”) shall pay to the Plaintiff KRW 576,352,00 of the compensation for the project for the development of the so-called “instant housing site development project” under Article 4 subparag. 5 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Public Works Projects Act”). On June 3, 2005, the registration of ownership transfer was completed with respect to the expropriation of KRW 92,00,00 of the compensation for the said housing site development project, which is a public project under Article 4 subparag. 5 of the said Act (hereinafter “instant housing development project”).

B. In the process of implementing the instant housing site development project, the instant expropriated land was changed to 205 square meters among other six parcels of land (205 square meters among the roads of the Sinung-gu ( Address 2 omitted), 1230 square meters among the roads of the same 1230 square meters, 296 square meters among the roads of the same 1231, 259 square meters among the roads of the same 1232, 256 square meters among the roads of the same 1232, 12362, 1237 parks of the same 1236

C. On the other hand, on August 22, 2006, the Minister of Land, Transport and Maritime Affairs (former Ministry of Land, Transport and Maritime Affairs) approved and publicly notified an implementation plan for the second section of "Graman-Seoul Expressway (National Expressways No. 141)" as a public-private partnership project pursuant to Article 15 of the Act on Public-Private Partnerships in Infrastructure (hereinafter "Private Investment Act") by designating a project operator as a "Graman Expressway Corporation" (Public Notice No. 2006-325 of the Ministry of Construction and Transportation). On March 5, 2010, the Minister approved the modification of the implementation plan for the above project (Public Notice No. 2010-138

D. A part of the land to be expropriated was used for the instant housing site development project, which is its original purpose of expropriation, but part of the land, including the remainder, was gratuitously reverted to Defendant Republic of Korea for the construction of the said expressway, which is a public project under Article 4 subparagraph 2 of the Public Works Act (hereinafter “instant expressway construction project”), and the ownership transfer registration (hereinafter “the ownership transfer registration”) was made in the name of the Defendant Republic of Korea under the name of the Suwon District Court registration office (hereinafter “the title transfer registration”).

E. Of the land to be expropriated in the instant case, the part included in the instant expressway construction project is a part of 205 square meters on board, which connected each point of the attached Form 1, 11, 56, 16, 55, and 1, among the area of 10,781.4 square meters of the said land, which is located in the land of this case on board (hereinafter “instant incorporated land”).

F. On November 20, 2013, the Plaintiff deposited KRW 119,105,00 (=576,352,000 paid compensation x 205 square meters of the land to be incorporated x 992 square meters of the area of the land to be incorporated x 205 square meters of the area of the land to be incorporated x 992 square meters of the area of the land to be incorporated x 205 square meters of the area of the land to be incorporated x 205 square meters of the area of the instant land) with the purpose of exercising the right of repurchase on the instant incorporated land under the jurisdiction of the Suwon District Court, Sung-nam Branch Branch Office, 2013 as a depositer for the instant incorporated land, and exercised the right of repurchase on November 21, 2013 by serving the Defendant Corporation a duplicate of the application for change in the purport of the claim and the cause of the claim.

[Reasons for Recognition] The facts without dispute, Gap evidence 1 through 7, 10 evidence, Eul evidence 1 through 6 (including each number), the result of the survey and appraisal conducted by the non-party of the first instance trial, the purport of the whole pleadings

2. Relevant provisions;

[The Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Amended by Act No. 11690, Mar. 23, 2013)]

Article 4 (Public Works Projects) Any project for which land, etc. may be acquired or used pursuant to this Act shall be any of the following projects:

1. Projects for national defense and military affairs;

2. Projects concerning railroads, roads, airports, harbors, parking lots, public truck depotss, cargo terminals, tracks, rivers, dams, dams, water systems, sewage systems, terminal treatment facilities, wastewater treatment facilities, erosion control, fire prevention, tide control, tide control, reservoirs, water supply systems, oil reservation, oil supply, waste disposal, electricity, telecommunications, broadcasting, gas, and meteorological observations conducted for the purpose of public interest by obtaining permission, authorization, approval, designation, etc. under the relevant Acts;

3.-4. (Omission)

5. Projects for the construction of housing or the creation of housing sites conducted by the State, local governments, public institutions under Article 4 of the Act on the Management of Public Institutions, local public enterprises under the Local Public Enterprises Act, or persons designated by the State or local governments for the purpose of lease or transfer;

6. to 8. (Omission)

Article 91 (Redemptive Right)

(1) Where all or part of acquired land becomes unnecessary due to the discontinuation or alteration of the relevant project or for any other reason within ten years from the date the land is acquired under consultation or the date the expropriation of land commences (hereafter referred to as "acquisition date" in this Article), the landowner at the time of the acquisition date or his/her general successor (hereinafter referred to as "re-holder") may repurchase such land by paying to the project operator the amount equivalent to the indemnity paid for such land, within one year from the date all or part of the relevant land becomes unnecessary, or within ten years from the acquisition date

(2) through (4)

(5) Repurchase rights under paragraphs (1) through (3) may be asserted against any third party when acquisition through consultation or expropriation of the land required for the public works has been registered, as prescribed by the Registration of Real Estate Act.

(6) Where any public institution prescribed by Presidential Decree among the public institutions under Article 4 of the Act on the Management of Public Institutions acquires land necessary for public works after obtaining project approval through consultation or expropriates such land, and then the relevant public works are changed to any other public works provided for in subparagraphs 1 through 5 of Article 4, the period for exercising the right to repurchase under paragraphs (1) and (2) shall begin from the date the change of the relevant public works is publicly notified in the Official Gazette. In such cases, the period for exercising the right to repurchase under paragraphs (1) and (2) shall begin from the date the State, a local government, or a public institution under Article 4

3. Judgment on the ground of the plaintiff's claim

A. Relevant legal principles

The term "project in question" under Article 91 (1) of the Public Works Act means a specific public project that is an object of expropriation or acquisition of land through consultation, and it shall be deemed that a specific public project specifically specified in the above provision at the time of obtaining authorization for the implementation plan of the project falls under the project in question, and the term "scale or alteration of the project in question" means the discontinuation or alteration of the project in question, and the whole or part of the acquired land means a case where the project operator becomes unnecessary for the purpose of acquisition of the land in question. Whether the land acquired through consultation or expropriated is no longer necessary shall be determined objectively and reasonably in light of all the circumstances, such as the purpose and contents of the project in question, the details and scope of the acquisition through consultation, the relationship between the land in question and the purpose of use (see Supreme Court Decision 2010Da30782, Sept. 30, 2010, etc.).

B. Determination

In accordance with the aforementioned legal principles, it is reasonable to view that the aforementioned housing site development project was abolished or modified with respect to the incorporated land of this case, as seen earlier, as seen earlier. Therefore, barring any special circumstance, the Plaintiff, the original owner of the incorporated land of this case, is entitled to exercise the right to repurchase the incorporated land of this case against the Defendant Corporation, which is the implementer of the said housing site development project, pursuant to Article 91(1) and (5) of the Public Works Act, and this can be asserted against the Republic of Korea against the Defendant, the third purchaser of the incorporated land of this case. As such, the Defendant Republic of Korea is entitled to exercise the right to repurchase the ownership transfer registration of this case with respect to the incorporated land of this case against the Defendant Corporation, and the Defendant Corporation is liable to implement the ownership transfer registration procedure due to repurchase registration on November 21, 2013, which is the date of delivery of a copy of the claim and the request for change of the incorporated land of this case to the Plaintiff.

4. Judgment on the defendants' assertion

A. The defendants' assertion

The defendants asserted that the incorporated land of this case, which was originally expropriated for the housing site development project of this case, was used for the housing site construction project of this case, which is a public project other than the purpose of expropriation. This constitutes the conversion of the public project under Article 91 (6) of the Public Works Act, and thus, the plaintiff cannot exercise the right of repurchase as long as it fails to meet the requirements for the exercise of the right of repurchase based on the newly modified public project.

B. Determination

(1) Relevant legal principles

Article 91(6) of the Act on the Management of Public Institutions provides that “Where a public institution prescribed by Presidential Decree, among public institutions under Article 4 of the Act on the Management of the State, a local government, or a public institution, acquires land necessary for a public project after obtaining project approval, or expropriates it, and the relevant 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 under the provisions of paragraphs (1) and (2) recognizes the conversion of public works by stipulating that “the period for exercising the right to repurchase under the provisions of paragraphs (1) and (2) shall be reckoned from the date when the change of the relevant public project is publicly announced in the Official Gazette.” The exercise of the right to expropriate land, etc. originally restricting the citizens’ property rights should be limited to the minimum necessary period for the implementation of a specific public project, as the whole or part of the land acquired for the public project becomes unnecessary due to the change of circumstances, it is necessary to return the land acquired for a new public project to the right to repurchase under Article 97(97).

(2) Determination

As seen earlier, the Defendant’s construction work, which falls under the public agency under Article 91(6) of the Public Works Act, has expropriated the instant expropriated land for the instant housing site development project, which is a public project. The part of the incorporated land was used for the instant expressway construction project corresponding to other public projects provided for in Article 4 subparag. 2 of the said Act. The present incorporated land is currently incorporated into the site for the said expressway construction project approved and publicly notified by the former Minister of Construction and Transportation through lawful procedures.

However, in light of the following circumstances, i.e., the owner of the expressway, which is not the owner of the relevant public works and the purport of the entire pleading on the basis of the facts, (i) the former part of Article 91(6) of the Act on the Management of Public Institutions does not stipulate the change of the owner of the expressway as “the State, a local government, or a public institution prescribed by Presidential Decree” (hereinafter “the State, a certain public institution”) but can be seen as applicable to the changed owner of the existing public works because the former is composed of one door; (ii) Article 91(6) of the Act limits the owner of the new public works to the State, a local government, or a certain public institution for the new public works to the extent that the new public works are not carried out for the purpose of the new public works; and (iii) the change of the ownership of the new public works to the extent that the new public works are not carried out by the owner of the expressway, such change of the ownership of the new public works to the extent that the new public works are not carried out.

5. Conclusion

Therefore, the plaintiff's claim of this case is accepted in its reasoning, and the judgment of the court of first instance is unfair in conclusion, and the plaintiff's appeal is accepted in entirety, and with respect to the defendant Republic of Korea, the procedure for the registration of cancellation of ownership transfer of this case with respect to the land incorporated into the defendant Corporation and the execution of the above procedure for registration of ownership transfer with respect to the land incorporated into the plaintiff

[Attachment]

Judges Kim Il-tae (Presiding Judge)