In cases where the State or a local government has installed, occupied, or used public facilities without lawful acquisition of land necessary for public facilities, whether the previous public facilities are gratuitously reverted to the implementer of the housing site development project who has installed new public facilities or public facilities replacing existing public facilities pursuant to Article 65(1) of the former National Land Planning and Utilization Act applied mutatis mutandis under Article 25(1) of the former Housing Site Development Promotion Act (negative)

Article 25(1) of the former Housing Site Development Promotion Act (amended by Act No. 11690, Mar. 23, 2013) provides that Article 65 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) shall apply mutatis mutandis to the attribution of public facilities following the implementation of a housing site development project, and that the implementer of the housing site development project shall be deemed an administrative agency that has obtained permission for development activities under the National Land Planning and Utilization Act. In addition, Article 65(1) of the former National Land Planning and Utilization Act (amended by Act No. 10599, Apr. 14, 201) provides that “Where a person who has obtained permission for development activities as an administrative agency installs new public facilities or installs public facilities replacing existing public facilities, the existing public facilities shall gratuitously belong to the person who has obtained such permission for development activities.” This provision does not apply only to cases where the State or a local government acquires the ownership of land necessary for existing public facilities, and it does not apply to cases where the State or a local government installed public facilities without lawful acquisition thereof and occupied and used them

Article 25(1) of the former Housing Site Development Promotion Act (Amended by Act No. 11690, Mar. 23, 2013); Article 65(1) of the former National Land Planning and Utilization Act (Amended by Act No. 10599, Apr. 14, 201)

Supreme Court Decision 2011Da103069 Decided March 15, 2012 (Gong2011Du22419 Decided June 27, 2013) Supreme Court Decision 2011Du23358 Decided July 10, 2014 (Gong2014Ha, 1599)

Plaintiff 1 and five others (Attorney Yu Young-young, Counsel for the plaintiff-appellant)

Gyeonggi-do City Corporation (Attorney Lee Jong-soo, Counsel for defendant-appellant)

Suwon District Court Decision 2012Na36767 decided April 17, 2013

The part of the judgment of the court below on Defendant Gyeonggi-do Corporation shall be reversed, and that part of the case shall be remanded to the Suwon District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

Article 25(1) of the former Housing Site Development Promotion Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter the same) provides that Article 65 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) shall apply mutatis mutandis to the reversion of public facilities following the implementation of the housing site development project shall be appointed to an administrative agency that has obtained permission for development activities under the National Land Planning and Utilization Act from the implementer of the housing site development project. In addition, Article 65(1) of the former National Land Planning and Utilization Act (amended by Act No. 10599, Apr. 14, 201; hereinafter the same shall apply) provides that “Where a person who has obtained permission for development activities as an administrative agency installs new public facilities or installs public facilities replacing the existing public facilities, the existing public facilities shall revert to the person who has obtained such permission for development activities without compensation.” This provision applies only to the case where the State or a local government acquires the ownership of land required for the existing public facilities, and it shall not apply to the State or a local government without lawful acquisition thereof.

According to the reasoning of the judgment below, Defendant Gyeonggi-do Corporation was designated by the Minister of Land, Transport and Maritime Affairs as a project implementer for the development of the Mine District Housing Site Development Project (hereinafter “instant project”) on the objection road in Young-gu, Suwon-si, including each of the instant land, from the Minister of Land, Transport and Maritime Affairs, and the Minister of Land, Transport and Maritime Affairs approved and publicly notified the modification of the housing site development plan (8th) and the modification of the implementation plan (7th) on October 27, 2011, with the Ministry of Land, Transport and Maritime Affairs announced on October 27, 2011. Defendant Gyeonggi-do Corporation commenced the instant project on December 30, 205 and completed February 3, 2012. Each of the instant land incorporated into the instant project area was previously used as a road, and the joint defendant at the time of the original trial was notified by the Minister of Construction and Transportation of each of the instant land, etc. as a public facility to gratuitously revert it.

According to such factual basis, Article 65(1) of the former National Land Planning and Utilization Promotion Act shall apply mutatis mutandis to the reversion of public facilities according to the instant project pursuant to Article 25(1) of the former Housing Site Development Promotion Act. However, even after examining the record, there is no evidence to acknowledge that the current market price of the original co-defendants of the lower court, which completed registration of preservation of ownership of each of the instant land, as the previous public facilities, acquired the ownership of each of the instant land in accordance with the contract under private law or public law procedures. In light of the aforementioned legal principles, in light of the aforementioned legal principles, it cannot be deemed that Defendant Do Corporation acquired the ownership

Nevertheless, the lower court, on the grounds indicated in its reasoning, determined that the Plaintiffs’ ownership of each of the instant lands was extinguished and at the same time Defendant Gyeonggi-do Corporation acquired ownership as the land was gratuitously reverted to Defendant Gyeonggi-do Corporation, which is the executor of the housing site development project. In so doing, the lower court erred by misapprehending the legal doctrine on attribution of public facilities under Article 65(1) of the former National Land Planning and Utilization Act, thereby adversely affecting the conclusion of the judgment.

Therefore, the part of the judgment of the court below regarding Defendant Gyeonggi-do Construction shall be reversed, and that part of the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jo Hee-de (Presiding Justice)