2019Da212044, damages, etc.

1. A;

2. B

3. C.

4. D;

[Defendant-Appellant] Defendant 1

Attorney Park Jong-il, Park Jong-il, Park Jong-chul,

Seodaemun-gu Seoul Metropolitan Government

Attorney Yu-sik, Counsel for the defendant-appellant

Seoul High Court Decision 2018Na2051899 Decided January 18, 2019

November 14, 2019

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. A. Article 91(1) of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Act No. 11017, Aug. 4, 201; hereinafter “former Act on the Acquisition of Land, etc.”) provides, “Where all or part of the acquired land becomes unnecessary due to the discontinuation, alteration or other causes of the relevant project within 10 years from the date of acquisition of land through consultation or expropriation, the landowner at the time of the acquisition date or his/her general successor may repurchase the land by paying to the project operator an amount equivalent to the compensation paid for the relevant land, within one year from the date the whole or part of the relevant land becomes unnecessary, or within 10 years from the date the land is acquired through consultation or expropriation.” The term “relevant project” stipulated in the above provision refers to a specific specific project purpose for the acquisition of the land through consultation or expropriation, and the whole or part of the acquired land becomes unnecessary” means a case where the project operator becomes unnecessary to use the relevant land for the purpose of acquisition through consultation or expropriation, and the objective purpose and scope of the relevant land.

B. Meanwhile, Article 96(6) of the former Public Works Act, which provides for "the conversion of public works to which the exercise of the right of repurchase is restricted, is amended and implemented by Act No. 10239 on April 5, 2010, provides for "the construction of housing or the creation of housing sites for the purpose of lease or transfer" subject to "the conversion of public works" under Article 4 subparagraph 5 of the former Public Works Act.

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. The Plaintiffs were the owners of each of the instant lands located in Seodaemun-gu Seoul Metropolitan Government.

B. On May 20, 2002, the head of the Defendant publicly announced the authorization of the implementation plan of the instant urban planning facilities (road) project. around 2003, the Defendant paid compensation to the Plaintiffs regarding each of the instant land included in the instant road site, and completed the registration of ownership transfer on the ground of a consultation on the land for public use. The head of the Defendant is the head of the Gu, on June 25, 2004, to implement the project of urban planning facilities (road parking lot) project (hereinafter referred to as the “instant parking lot project”) as a V of Seodaemun-gu public notice for the purpose of providing parking convenience and improving the residential environment by resolving the parking shortage caused by the multi-household housing concentration area, and to implement the instant parking lot project (hereinafter referred to as the “instant parking lot project”). The Defendant thereafter publicly announced the authorization of the implementation plan of the instant parking lot project as L on May 12, 2005. The Defendant, including each of the instant land used as a road site thereafter, constructed the instant public parking lot.

D. On October 19, 2006, the Mayor of Seodaemun-gu Seoul Special Metropolitan City designated the Seodaemun-gu 0 Seoul Special Metropolitan City, including each of the instant land, as an urban renewal acceleration district on October 19, 2006, and on February 5, 2008, on the same public announcement P, publicly announced the alteration designation of the urban renewal acceleration district and the urban renewal acceleration plan (hereinafter “instant urban renewal acceleration plan”).

E. On March 31, 2009, the defendant head of the Gu publicly notified the approval of the project implementation of the housing redevelopment project (hereinafter referred to as the "redevelopment project of this case") in the SUB as R, and publicly notified the approval of the management and disposal plan of this case on March 3, 2010.

F. Meanwhile, the Plaintiffs asserted that after March 3, 2010, the notice of the instant administrative disposition plan was given, the Housing Redevelopment Improvement Project Association of the SUD removed the instant public parking lot (the complaint filed on September 11, 2017).

3. A. Examining the above facts in light of the legal principles as seen earlier, even if the renewal acceleration plan of the instant case, including the details to abolish the instant public parking lot, was publicly announced or the authorization to implement the redevelopment project of the instant land, etc. was publicly announced, it cannot be deemed that the utility as a parking lot or the need for public interest has been practically extinguished during the period when the instant public parking lot still is used for the previous parking lot. Therefore, it is difficult to conclude that each of the instant land does not become objectively unnecessary for the instant parking lot project only by the public announcement of the urban renewal acceleration plan of the instant case or the public announcement of the authorization to implement the redevelopment project of the instant case. Furthermore, the redevelopment project of the instant case, which is a public project under Article 4 subparagraph 5 of the former Public Works Act, constituted the “project concerning the construction of housing, or the formation of housing sites, implemented by a person designated by the local government” for the purpose of lease or transfer, there is room for the Plaintiffs to exercise the right of repurchase as to each of the instant public projects under Article 91(6) of the amended Public Works Act.

Therefore, the lower court should have examined and confirmed at any time when each land of the instant case becomes unnecessary for the instant parking lot business due to the removal of the said parking lot after having decided to abolish the instant public parking lot as above, and examined the application of Article 91(6) of the former Public Works Act amended and implemented on April 5, 2010 and the Plaintiffs’ exercise of the right to repurchase.

B. Nevertheless, on February 5, 2008, the lower court upheld the first instance judgment accepting the Plaintiffs’ claim on the premise that each of the instant land became unnecessary for the instant parking lot business, and around that time, the Plaintiffs could exercise a redemptive right to each of the instant land. In so doing, the lower court erred by failing to exhaust all necessary deliberations or by misapprehending the legal doctrine on Article 91(1) of the former Public Works Act, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, 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.

Supreme Court Decision 200

Justices Park Sang-ok

Justices Noh Jeong-hee

Justices Kim Jae-hwan in charge