Where real estate acquired through consultation for a housing site development project was designated as a residential area but the project implementer leased such real estate to construct a tourist accommodation facility, whether such real estate is deemed unnecessary for the relevant project if the construction of a tourist accommodation facility is allowed in a residential area (negative)

Under Article 19 of the Urban Planning Act, Article 32 of the Building Act (wholly amended by Act No. 4381 of May 31, 1991), and Article 66 (2) 1 [Attachment Table 5] subparagraph 4 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 12022 of December 29, 1986), the accommodation facilities shall not be constructed in principle in a residential area, but exceptionally, the accommodation facilities determined by the Minister of Construction and Transportation in consultation with the Minister of Construction and Transportation may be constructed in a residential area for the promotion of tourist business. Thus, if a third party leases the relevant real estate to a third party and obtains approval from the competent Do governor under the provisions of the Tourism Promotion Act, and a new construction of a tourist hotel is being carried out after obtaining a construction permit from the head of the competent Gun, it cannot be deemed that there is no need for the project operator to abolish or change the relevant real estate to construct a tourist hotel.

Article 9(1) of the Special Act on Compensation for Public Loss, Article 19 of the former Urban Planning Act (amended by Act No. 4427 of Dec. 14, 1991), Article 32 of the former Building Act (amended by Act No. 4381 of May 31, 1991), Article 66(2)1 of the former Building Act (amended by Presidential Decree No. 1202 of Dec. 29, 1986)

[Plaintiff-Appellant] Plaintiff 1 et al. (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Plaintiff

Hanyang-gun (Law Firm Hanwon, Attorneys Yho-ho et al., Counsel for the defendant-appellant)

Supreme Court Decision 95Da16455 Delivered on November 28, 1995

Cheongju District Court Decision 96Na311 delivered on August 14, 1997

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

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

According to the reasoning of the judgment of the court below, the non-party 2 was entitled to expropriate or use the land under Article 3 subparagraph 2 of the Land Expropriation Act. Article 3 subparagraph 8 of the Land Expropriation Act provides that the non-party 2 may expropriate or use the land under other Acts. Article 2 (1) and Article 29 of the Urban Planning Act (amended by Act No. 4427 of Dec. 14, 191) provides that the non-party 2 may expropriate or use the land as an urban planning project under Article 14 of the same Act. The non-party 1 and the non-party 1 and the non-party 2 are allowed to newly construct new tourist accommodation facilities under Article 9 of the same Act. The non-party 1 and the non-party 2 are allowed to newly construct new tourist accommodation facilities under Article 19 of the same Act. The non-party 1 and the non-party 2 are allowed to newly construct new tourist accommodation facilities under Article 14 of the same Act. The non-party 1 and the non-party 3 industrial area are allowed to construct new tourist facilities.

In light of the records, the above fact-finding and determination by the court below is just in accordance with the purport of the judgment of remanding, and it cannot be deemed that the public project of this case was abolished or modified because the defendant leased the real estate of this case designated as a residential area as a site for a tourist hotel. Therefore, there is no error of law such as misunderstanding of facts or misunderstanding of legal principles as the theory of lawsuit, etc

Therefore, the appeal is 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.

Justices Shin Sung-sung (Presiding Justice)