Where a project plan is modified, the standard time for calculating the number of consenters under Article 14 (4) of the former Urban Redevelopment Act

Article 14(4) of the former Urban Redevelopment Act (amended by Act No. 5116 of Dec. 29, 1995) provides that the requirements for application for authorization for project implementation shall be met easily, and that the person who intends to apply for authorization for project implementation shall be prepared to facilitate the acquisition of the land necessary for the project implementation. The purpose of the provision is to ensure that the project plan is not modified, and that it is reasonable to apply the above provision as of the date of decision of the original project plan even in cases where the project plan is modified (in cases where the plan is modified, the above provision is applied as of the time of change), if most consenters have already sold the land to the implementer, and the remaining persons are not able to apply for authorization for project implementation, or are very difficult to meet the requirements for application for authorization for project implementation, and thus contrary to the purport of the above provision).

Article 14(4) of the former Urban Redevelopment Act (amended by Act No. 5116 of Dec. 29, 1995)

Dongbu Construction Co., Ltd. (Attorney Hun-tae, Counsel for the defendant-appellant)

Head of Central Tax Office

Supreme Court Decision 93Nu548 delivered on April 26, 1994

Seoul High Court Decision 94Gu13673 delivered on February 7, 1995

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

We examine the grounds of appeal.

(1) On the first ground for appeal

The purpose of Article 2 subparag. 2 of the Urban Redevelopment Act is to carry out redevelopment projects under the conditions as prescribed by the Urban Redevelopment Act, including the rearrangement of buildings and their sites, the creation of sites and the maintenance of public facilities, and the projects incidental thereto. The purport of the judgment of remanding the land provided for the redevelopment project in question cannot be concluded as constituting non-business real estate, unless there are special circumstances to deem that the corporation intentionally neglected or delayed the execution of the redevelopment project, in view of the characteristics of the project, such as the combination of complex interests between the parties concerned, such as the land owners within the redevelopment project area, and the planning, preparation, and construction of the project, etc., and the corporation has continued to carry out the redevelopment project after obtaining authorization for the implementation of the redevelopment project under the Urban Redevelopment Act, and has continued to carry out the preparation project, such a series of preparation and consultation on the purchase of the land necessary for the implementation of the redevelopment project, or to obtain the landowner’s consent.

According to the reasoning of the judgment below, the court below held that the plaintiff has used the land of this case directly for its business in this case where the plaintiff did not neglect or delay the implementation of the redevelopment project in accordance with the changed redevelopment project plan, since the plaintiff had obtained the approval of the implementation of the redevelopment project and completed the removal work and suspension work of the above ground buildings and requested the traffic impact assessment, and the plaintiff has continuously endeavored to purchase the land from the land owners or obtain the approval of the alteration of the project implementation plan in accordance with the changed redevelopment project plan, and there is no other circumstance to deem that the plaintiff intentionally neglected or delayed the implementation of the redevelopment project. Such judgment of the court below is just in accordance with the purport of the judgment of the aforementioned remand, and there is no error of law such as the theory of lawsuit, and it is not possible to conclude that there was an error of law such as the incomplete hearing, etc.

(2) On the second ground for appeal

The court below held that it is reasonable to consider that the owner's consent is granted only to the land acquired by the project implementer after applying Article 14 (4) 2 of the Urban Redevelopment Act as of the time when the decision of the project plan was changed when the decision of the project plan was changed. However, in light of the decision of the change of the project plan, the plaintiff did not obtain the consent of more than 2/3 of the land owners required under Article 14 (1) of the above Act since the plaintiff did not obtain only the consent of 2/5 of the land owners, and it did not obtain the consent of more than 1/2 of the number of land owners requesting a decision in lieu of consent under Article 14 (2). Thus, the court below held that the change of the project plan was delayed due to the change of the project plan.

Article 14(1) of the Urban Redevelopment Act provides that "a person who applies for authorization for implementation under Article 12 shall obtain the consent of at least 2/3 of the land size in the redevelopment area and the consent of at least 2/3 of the total number of landowners and building owners, respectively." Paragraph (4) of the same Article provides that "in calculating the number of consenters under paragraph (1), a person who intends to apply for authorization for implementation after the date of determination of the project plan shall be deemed to have obtained the consent of the previous owner." This provision provides that "The person who intends to apply for authorization for implementation shall meet the requirements for application for authorization for project implementation shall be deemed to have obtained the consent of the previous owner." This provision provides that it is reasonable to apply the above provision to a person who intends to apply for authorization for implementation in order to facilitate the acquisition of land necessary for the project after the project plan was modified, because the purpose of the provision is not to change and thus, it is reasonable to apply the above provision as of the date of determination of the original project plan even if the project plan was revised (if amended, most consenters already sold land to the implementer, and most of the remaining person shall be deemed to be unable to apply.

However, according to the records, after the Seoul market modification decision, the plaintiff did not meet the requirement that the project implementation plan can be applied for because the plaintiff did not secure only 2/3 of the total land size within the redevelopment area of this case and 54.8% of the land owner's consent. Meanwhile, according to Article 14 (2) of the Urban Redevelopment Act, if the land owner et al. did not obtain the consent without justifiable cause and the landowner et al. did not comply with the consent, it can file a request for a decision in lieu of the consent with the competent Do governor with the consent of more than 1/2 of the total number of the land owners. However, the decision in lieu of the consent can be attributed to the expropriation procedure for compulsory acquisition of the land, and it is difficult to criticize that the project operator neglected the redevelopment project on the ground that he continued to make efforts to obtain consultation or consent without using force prescribed by the law, barring any special circumstances, in light of the present social situation, such as the possession of civil petitions. Therefore, this error does not affect the conclusion of the judgment.

We cannot accept the issue guidance pointing this out.

(3) On the third ground for appeal

It is not always required to sell or request sale of the land within the area by failing to implement the redevelopment project, and in addition, the plaintiff is not confirmed to not implement the redevelopment project in this case, and there is no reason to discuss this point.

(4) Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Don-hee (Presiding Justice)