209Na14005 Return of the purchase price

□・◆◆아파트주택재건축정비사업조합

부산 ■■구□□동 O-O

대표자 조합장갑◆

Law Firm OOOO-Attorney Lee -

Attorney-at-Law in charge of legal affairs;

Attorney Park Do-young

Busan Metropolitan City

Representative Market

Attorney Lee Do-young

Busan District Court Decision 2008Gahap255 Decided August 19, 2009

October 6, 2010

December 22, 2010

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 7.2 billion won with 5% interest per annum from April 21, 2006 to June 24, 2009, and 20% interest per annum from the next day to the day of full payment.

2. Purport of appeal

In the judgment of the first instance court, the part against the defendant shall be revoked, and the plaintiff's claim corresponding to the above revocation shall be dismissed.

1. Basic facts

가. 원고는 2003. ○○. ○○. 부산 ■■구 □□동 ○○○-○○ 일대 66,711.3㎡를 사 업시행구역( 아래 2005. ○○. ○○.자 사업시행인가 당시 그 면적이 54,258m이었으나 2008. ○○. ○○. 부산광역시 고시 제2008-545호 정비구역 변경지정 고시로 사업시행 구역의 면적이 위와 같이 증가되었다, 이하 ' 이 사건 사업구역'이라 한다 )으로 하여 이 사건 사업구역 내의 □□①①아파트 680세대와 ①④빌라아파트 280세대(이하 '기존 아 파트'라 한다 )를 철거하고 새 아파트를 건축( 이하 '이 사건 재건축사업'이라고 한다) 하 기 위하여 설립된 도시 및 주거환경정비법(이하 '도시정비법' 이라 한다)상의 주택재건 축정비사업조합으로서, 2005. ○○. ○○. 부산광역시 ■■구청장으로부터 ' 이 사건 사 업구역 내에 편입되어 이 사건 재건축사업의 시행으로 용도폐지되는 피고 소유의 도로 에 관하여는 용도폐지 후 매수할 것' 을 조건으로 이 사건 재건축사업의 시행인가를 받 았다.

나. 이에 따라 원고는 2006. ○○. ○○. 피고와 사이에, 원고가 피고로부터 이 사건 사업구역에 편입된 토지로서 위 기존 아파트 단지 내 도로로 사용되던 부산 ■■구 미 □동 ○○○-○○ 대 4,876m {위 기존 아파트 단지의 외곽도로 및 중앙도로의 역할을 하는 위 □□동 ○○○-○○ 도로 19,823mi(이하 '이 사건 도로'라 한다)에서 2005. 이 ○. ○○. 분할되어 그 무렵 대지로 지목이 변경된 토지이다. 이하 '이 사건 토지'라 한 다 )를 72억 450만 원에 매수하기로 하는 내용의 매매계약(이하 '이 사건 매매계약'이라 한다 )을 체결하고 그 무렵 피고에게 위 매매대금을 전부 지급한 뒤, 이 사건 토지에 관 하여 원고 앞으로 소유권이전등기를 경료하였다.

C. Meanwhile, while implementing the instant reconstruction project, the Plaintiff newly installed a road of 2,088 square meters, which is an infrastructure for rearrangement under the Urban Improvement Act, with a total of KRW 7,868,355,195 on the part of a part of the land in the instant project area, as a result of the survey conducted at the completion of the said reconstruction project (However, as a result of the survey conducted at the stage of the said reconstruction project, the area increased by 13.5 square meters on the land surface, and paid the amount of 2,045 square meters on the land surface, to the Defendant.

[Ground of recognition] Facts without dispute; Gap 1, 8 through 12; Gap 14, 16, 17, 19; Eul 22; each statement of evidence; the result of the commission of appraisal to the state appraisal corporations of the court of first instance; the purport of the whole pleadings

2. Parties’ assertion

A. The plaintiff's assertion

Since the land purchased by the Plaintiff from the Defendant is "infrastructure for maintenance owned by the State or a local government, which is transferred without compensation to the project executor" under the latter part of Article 65 (2) of the Act on the Maintenance and Improvement of Urban Areas, which is a mandatory provision, the instant sales contract is null and void since it is in violation of the compulsory provision. Since the Defendant was well aware that the land in this case constitutes an infrastructure for maintenance subject to gratuitous transfer from the time of the instant sales contract, and thus, the Defendant, as a malicious beneficiary, is obligated to return the purchase price of the instant land in bad faith and the interest or delay

B. Defendant’s assertion

The instant land is not a facility established by urban planning under relevant laws, such as the National Land Planning and Utilization Act (hereinafter referred to as the “National Land Planning Act”), but it is merely a de facto road that did not take the construction procedure of roads such as recognition of routes under the Road Act, and it does not constitute an infrastructure for maintenance subject to gratuitous transfer under the latter part of Article 65(2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents. Thus

3. Determination

A. Relevant statutes

It is as shown in the attached Form.

B. Determination as to whether the fundamental infrastructure is subject to a gratuitous transfer

(1) Facts found in the instant case

(A) According to 198 of the Construction ○○○○, ○. Construction ○, 1976, the urban planning determination was publicly announced that the total area of the instant project area was 39,340 meters designated as the △ apartment zone, including the instant project area, and the cadastral approval was publicly announced on ○○, Busan, 1491, according to the said urban planning determination.

(B) On the other hand, on the other hand, the Minister of Construction: (a) divided into three districts (one district (one district in this case), 130,83 square meters in two districts, 162 square meters in three districts, 162 square meters in three districts, and 15,463 square meters in 18,936 square meters in one district and 22,452 square meters in two districts, and 16,795 square meters in two districts into a road site; and (b) approved the master plan for the development of the Cheong apartment district in which the Minister of Construction and Transportation uses 16,795 square meters in two districts as a school site, and 6,340 square meters in three districts as a park site.

(C) According to the approved apartment zone development master plan, the plan includes a rough drawing of the road of this case on the plan, the school site is a school facility, the park site is a neighboring park facility, and the road site is constructed as a road facility. The road of this case is indicated as the road of this case on the construction plan of the development remaining land.

(D) However, the Busan Metropolitan City and the Busan Metropolitan City publicly announced the basic plan for the development of the △ apartment zone, which is limited to the park as to the determination of urban planning facilities, pursuant to the provisions of Article 20 (2) of the former Housing Construction Promotion Act as 301 publicly notified by the Busan Metropolitan City and the Busan Metropolitan City.

(E) On the other hand, in accordance with the above △ apartment zone development plan, the operator of △ apartment zone development project was at the time. (4) The housing was constructed and sold in the form of the construction of the existing apartment and other apartment units, which are the subject of the reconstruction project of this case, and the 798 apartment units, in one district of △ apartment zone, and the construction of the road of this case, which is the role of the central road and the outer road of the above existing apartment complex (including part of the outer road of the other apartment complex), and the ownership transfer registration was made in the name of the defendant on the ground of the reversion of the rights of ○○ on the ground of ○ on the ground of ○○ on the ground of 1988.

( 바 ) 이 사건 도로는 크게는 기존아파트 단지의 중앙도로(왕복 2차로) 와 그 아파트 단지 전체를 둘러싼 외곽도로(왕복 3차로) 부분으로 구분되고(타워아파트 외곽도로의 일부도 포함되어 있음은 위에서 본 바와 같다) , 위 중앙도로와 외곽도로 모두 북쪽에 위치한 ■■구청 앞의 도시계획시설인 도로(중로 ○○- ○○)와 연결되어, 기존 아파트 단지의 주민 뿐 아니라, 타워아파트의 주민 역시 자유로이 중앙도로와 외곽도로를 이 용하여 ■■구청 방면으로 통행하였고, 마을버스도 다녔으며, 피고도 이 사건 도로를 도로로서 관리하여 왔는바(피고가 도로의 중앙선 및 가장자리 주정차선의 도색뿐 아니 라, 도로 보수시 아스팔트 포장도 한 것으로 보인다), 이와 같이 이 사건 도로는 이 사 건 정비구역 내에 있는 토지로서 그 현황은 도로법상의 도로이나, 도로법에 따른 노선 인정(지정)· 공고 또는 도로구역 결정 · 고시는 이루어지지 않았다.

(G) Accordingly, upon the Plaintiff’s request to formulate a district unit plan for the implementation of the instant reconstruction project, the Defendant designated the project zone whole area as a Class 1 district unit zone zone zone zone zone zone zone zone zone zone zone zone zone zone zone zone zone under the National Land Planning Act pursuant to Article 2004-311 of the Busan Metropolitan City Notice No. 2004-289, 004, 000, Busan Metropolitan City Notice No. 2004-23, 2005, as well, to secure the floor area ratio necessary for the implementation of the instant reconstruction project, the Defendant determined the urban management plan and the approval of topographic drawings stating that all of the roads of this case are abolished (the revised notice was made to abolish not all the roads of this case but only 7,790 out of the above roads as the purpose of excluding 7,790 among the above roads) and the Seoul Metropolitan City Notice No. 205-23, 2005.

(아 ) 이어 앞서 본 2005. ○○. ○○.자 부산광역시 ■ ■ 구청장의 이 사건 재건축 사업의 시행인가 이후 2005. 00. OO. 이 사건 토지(4,876m)가 이 사건 도로(19,823 m²)에서 분할되어 그 무렵 대지로 지목이 변경되었고, 이 사건 토지가 이 사건 재건축 사업의 시행으로 인하여 용도 폐지되는 정비기반시설인 도로라고 되어있는 원고의 관 리처분계획이 2005. ○○. ○○. 부산광역시 ■■구 고시 제2005-42호로 인가 · 고시되 었다.

( 자 ) 한편, 이 사건 재건축 사업으로 인하여 원고가 이 사건 재건축사업 단지 내의 대지들(□□동 ○○○-○○ 대 등 )의 일부에 새로이 외곽도로를 확장( 이하 '이 사건 외 곽도로 확장 부분' 이라 한다)하여 설치하였는바, 원고가 새로이 확장하여 설치한 이 사 건 외곽도로 확장 부분은 ■■구 고시 제2009-2호로 정비기반시설로 고시되었고, 이어 2009. ○○. ○○. ■■구 고시 제2009- 10호로 이 사건 정비사업의 시행으로 인하여 새로이 설치한 정비기반시설인 도로를 무상귀속한다는 내용이 고시되었는데, 이 사건 외곽도로 확장 부분의 경우에도 정비기반시설조서는 작성되었으나 도로법에 의한 노선 의 인정(지정) · 공고 등의 절차를 거치지는 아니하였다.

[Ground of recognition] 12 to 37 evidence, Eul 1 to 51 evidence (including each number), and the purport of the whole theory of change

(2) Determination

(A) In light of the relevant provisions, legal principles and facts, etc. as seen below, it is reasonable to deem that the instant road constitutes an infrastructure subject to free transfer under Article 65(2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, as well as infrastructure owned by the State or a local government.

In other words, in accordance with Article 22(1) of the former Housing Construction Promotion Act and Article 5(7) of the former Urban Redevelopment Act, when a master plan for development of an apartment zone is publicly announced pursuant to Article 20(2) of the former Housing Construction Promotion Act, matters to be determined by the former Urban Planning Act among the details of such public notification shall be deemed to have been determined by an urban planning decision pursuant to the former Urban Planning Act. Since a road within an urban planning zone may be constructed only by an urban planning facility pursuant to Article 2(1)1(b), 3, or 16 of the former Urban Planning Act, a road within an apartment zone may be constructed by an urban planning facility pursuant to Article 2(1)1(b), 3, or 16 of the former Urban Planning Act, if the master plan for development of an apartment zone is publicly announced, it shall be deemed that there was a decision on urban planning with a road within an apartment zone, which is an urban planning

이 사건의 경우, 구 주택건설촉진법 제20조 제2항, 동 시행령 제23조 제3항에 의 하여 1985. ○○. ○○. 부산직할시 고시 제301호로 이 사건 사업구역이 포함된 □□아 파트지구개발기본계획이 고시되고 위 기본계획에 따라 위 □□아파트지구 내에 이 사 건 도로가 설치되어 □□아파트지구의 북쪽에 위치한 ■■구청 앞의 도시계획시설인 도로에 연결됨으로서 , 주민들이 널리 이용하는 기반시설에 해당하는 교통시설로서의 역할과 기능을 하였을 뿐 아니라, 지금도 외곽도로 부분은 여전히 기반시설에 해당하 는 교통시설로서의 역할과 기능을 하고 있으며, 피고도 이 사건 도로에 차선 도색과 포장을 하는 등으로 교통시설로서의 도로로 관리하는 등, 이 사건 도로에 관하여는 구 주택건설촉진법 제20조 제2항, 제22조 제1항, 구 도시재개발법 제5조 제7항, 구 도시계 획법 제2조 제1항 제1호 ( 나 )목 , 제3호, 제16조의 각 규정에 의하여 구 도시계획법상 도시계획결정이 있었던 것으로 보아야 하고, 국토계획법(2002. 2. 4. 법률 제6655호로 제정되어 2003. 1. 1.부터 시행된 것 ) 부칙 제15조 제1항은 " 이 법 시행 당시 종전의 도시계획법에 의한 도시계획시설은 이 법에 의한 도시계획시설로 본다" 고 규정하고 있 으므로, 이 사건 도로는 도시계획시설이라고 보아야 할 것이다.

(B) Even if the instant road is not an urban planning facility determined by an urban management plan, in light of the following circumstances, it is reasonable to deem that the instant road constitutes an infrastructure subject to gratuitous transfer under Article 65(2) of the Urban Improvement Act.

① 피고 산하 ■■구청장은 2005. OO. OO. 부산광역시 ■■구 고시 제 2005-42호 (갑 12호증의 1)로 이 사건 재건축사업의 시행과 관련하여 『신설 또는 폐지 하는 정비기반시설의 명세』 항목 하에, 『신설공원 : 면적 ~ 2 ,045㎡ , 용도폐지 도로

면적 ~ 4 ,876 』 라는 내용이 포함된 원고의 관리처분계획을 인가하고 고시하였는 바 , 피고 산하 ■■구청장에 의하여 인가·고시된 위 관리처분계획에도 이 사건 토지는 정비기반시설로 되어 있다.

② 이 사건 도로는 개설 당시 시행자의 신청누락 등으로 도시계획시설결정조서가 작성되지 아니한 점은 있으나, 당시 건설부 장관이 승인한 아파트지구개발기본계 획의 계획도에 이 사건 도로에 대한 도면이 나와 있었고, 용도규제계획에 도로용지는 '도로시설'로 건축한다는 내용이 포함되어 있었으며, 개발잔여지 건축계획의 건축계획 도에도 이 사건 도로가 도로로 표시되어 있었고, 실제로 크게는 기존아파트 단지의 중 앙도로(왕복 2차로) 부분과 그 아파트단지 전체를 둘러싼 외곽도로(왕복 3차로) 부분 (타워아파트 외곽도로의 일부도 포함되어 있음)으로 되어 있고, 위 중앙도로와 외곽도 로 모두 북쪽에 위치한 ■■구청 앞의 도시계획시설인 도로(중로 ○○-○○)와 연결되 어, 기존 아파트단지의 주민 뿐 아니라, 타워아파트의 주민 역시 이 사건 도로를 이용 하여 ■■구청 방면으로 통행하고 마을버스가 다니는 등 기반시설에 해당하는 교통시 설로서의 역할과 기능을 하였다.

③ Furthermore, the Defendant was also in charge of the instant road, such as painting and packaging, and the remaining part of the instant road except the instant land, serves as a transportation facility corresponding to infrastructure by combining the outer extension part of the instant road publicly notified by the Defendant as an infrastructure for maintenance at present.

④ 이 사건 외곽도로 확장 부분이 ■■구 고시 제2009-2호로 정비기반시설로 고 시되었고, 이어 2009. ○○. ○○. ■■구 고시 제2009- 10호로 정비사업시행으로 인하 여 새로이 설치할 정비기반시설인 도로를 무상귀속한다는 내용이 고시되었는데, 이 사 건 외곽도로 확장 부분과 일체를 이루는 기존의 외곽도로( 이 사건 도로 중 이 사건 토 지 부분을 제외한 부분)도 도시계획시설조서나 정비기반시설조서가 작성되지는 않았지 만 정비기반시설에 해당한다고 봄이 상당하다. 즉, 형상과 구조 및 기능상 일체를 이루 는 도로 중 정비기반시설조서가 작성된 이 사건 외곽도로 확장 부분만 정비기반시설에 해당하고, 나머지 도로 부분은 도시계획시설조서나 정비기반시설조서가 작성되지 않았 다는 것만으로 정비기반시설이 아니라는 것은 대단히 부자연스럽다.

⑤ In the case of the extension of the outer road of this case, the Defendant was designated and publicly notified as the fundamental infrastructure under the Urban Improvement Act without going through the procedures such as the recognition (designation) and public announcement of the routes under the Road Act.

(6) Meanwhile, according to Article 10-2 of the former Enforcement Decree of the Road Act (amended by Presidential Decree No. 11780 of Oct. 16, 1985), a road zone is deemed to be determined and publicly announced under the National Land Planning and Utilization Act, which is a necessary procedure following the determination and public announcement of the road zone (Article 25(1)7 of the Road Act), but the Do Road Act (amended by Presidential Decree No. 4175 of Dec. 30, 1989), which is the Act and subordinate statutes at the time of the construction of the road in this case, was publicly announced, and Article 10-2 of the former Enforcement Decree of the Road Act (amended by Presidential Decree No. 11780 of Oct. 16, 1985), a road under an urban planning project was excluded from the application of the road zone regulations, road zone regulations, road ledger, etc., and there was no provision related to the construction and public announcement of the road under the former Rules (amended by Ordinance No. 1980 of Apr. 26, 198, 198, 198).

1. No. 1 No. 7,868,355, and 195 won, which the Plaintiff received from the Plaintiff, the extension of the outer road of this case and the donation of children’s parks under the Urban Improvement Act, which are costs equivalent to KRW 7,868,35, and KRW 195, the Defendant’s transfer of the road of this case, the ownership of which was acquired by being paid by the Plaintiff, to the Plaintiff at a cost, not free transfer of the apartment complex, is extremely contrary to equity.

8. The State Property Act refers to the property that the State directly determines to use for public purposes or directly determines to use for public purposes (Article 4(2)2 of the former State Property Act before the amendment by Act No. 9401 of Jan. 30, 2009). If an artificial property such as a road is determined to be used for public purposes or as an administrative disposition, or if the State actually uses it for public purposes without such designation or decision. In this case, it is not deemed that the maintenance of the road in question was designated as a road or as an administrative disposition pursuant to the Act and subordinate statutes. However, it is not deemed that a non-permanent housing company has decided to use it for public purposes (Article 4(2)2 of the former State Property Act before the amendment by Act No. 9401 of Jan. 30, 2009).

(9) On the other hand, while the Act on the Maintenance and Improvement of Urban Areas define the meaning of the fundamental infrastructure and define it as one of the fundamental infrastructure, there is no provision on the above "road" in the Act on the Maintenance and Improvement of Urban Areas and its Enforcement Decree, and there is no provision on the limit of the fundamental infrastructure subject to free transfer to the urban planning facilities determined by the urban management plan as stipulated in subparagraph 7 of Article 2 of the National Land Planning and Utilization Act. In interpreting the "basic infrastructure subject to free transfer" as stipulated in subparagraph 4 of Article 2 of the Act on the Maintenance and Improvement of Urban Areas, if it falls under the fundamental infrastructure subject to free transfer as stipulated in subparagraph 4 of Article 2 of the Act on the Maintenance and Improvement of Urban Areas, it shall be deemed as the fundamental infrastructure subject to free transfer as stipulated in subparagraph 2 of Article 65 of the Act on the Maintenance and Improvement of Urban Areas, and there is no reason to interpret the concept of the fundamental infrastructure as limited to the "infrastructure established

① Furthermore, the legislative intent of Article 65(2) of the Urban Improvement Act is to make sure that a private project implementer gratuitously transfers the infrastructure for rearrangement, such as the State, whose purpose is to be abolished by the implementation of a rearrangement project, to the project implementer within the extent equivalent to the installation cost of the newly installed infrastructure, taking into account the project implementer’s property losses, taking into account the project implementer’s property losses incurred in the construction cost of the newly installed infrastructure for rearrangement, and compensates the project implementer for such financial losses within reasonable limits. The above provision should be considered as a mandatory provision compelling a transfer of the infrastructure for rearrangement, which will be abolished without compensation, within the extent equivalent to the installation cost of the newly installed infrastructure by the private project implementer (Supreme Court Decision 2007Du6663, Jul. 12, 2007). In light of the above legislative intent, there is no need to interpret the infrastructure for rearrangement under the Urban Planning Act as an urban planning facility in the form of urban planning facility under the National Land Planning Act, and there is no need to interpret it as an urban planning facility.

① Meanwhile, in a case where it is deemed that the rearrangement basis facilities were determined and installed by the urban management planning under the National Land Planning and Utilization Act, the term “urban management planning or urban planning” is stipulated by the National Land Planning and Utilization Act or by the enactment of the Urban Planning Act. As such, there is a problem that a road, etc., which existed before the enactment of the National Land Planning and Utilization Act or the enactment of the Urban Planning Act, is not an infrastructure established by the urban management planning or urban planning, and is not entirely included

② The Act on the Maintenance and Improvement of Urban Areas limits the scope of infrastructure for rearrangement, which is the object of free transfer, to the scope of “within the scope equivalent to the installation cost of newly installed infrastructure by a project executor.” Since whether a road falls under a road can be reasonably determined according to the actual conditions of the use of the road, the period of use, the wide area, the packaging of the road, the color of the tea line, etc. Therefore, even if a road, which is not an urban planning facility, is included in the rearrangement infrastructure under the Act on the Maintenance and Improvement

③ In principle, construction and maintenance of public property, such as roads, is the inherent work of the State and local autonomous body. Although it is reasonable that the pertinent road should have been designated as urban planning facilities according to its current state and should have been systematically maintained and managed by the competent administrative agency, it is merely a fact that the competent administrative agency did not designate it as urban planning facilities due to administrative error, etc.

(3) Sub-determination

Therefore, since the implementation of the reconstruction project of this case was made out of the land of this case incorporated into the basin of the project of this case due to the implementation of the reconstruction project of this case, the land of this case constitutes "infrastructure for maintenance owned by the State or a local government, which has ceased to be used due to the implementation of the rearrangement project" under the latter part of Article 65 (2) of the Act.

C. Whether the sales contract of this case is null and void

(1) As seen earlier, the latter part of Article 65(2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions is a mandatory provision compelling a private project operator to transfer without compensation the infrastructure to be disused within the extent equivalent to the installation cost of the infrastructure to be newly installed. The sales contract, etc. concluded between a project operator and the State or a local government in violation of the latter part of the said Act is null and void (see Supreme Court Decision 2006Da18174, Jun. 25, 2009).

(2) Therefore, the sales contract of this case is invalid in violation of the latter part of Article 65(2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for the Plaintiff to purchase the land of this case, which is an infrastructure for maintenance for which the transfer without compensation is enforced under the latter part of Article 65(2) of the Act on the Maintenance

(3) As to this, the Defendant asserted that the instant sales contract was concluded under the conditions added to the authorization of the implementation of the instant reconstruction project on ○○○○, supra, and that the foregoing conditions of the authorization, which is an administrative disposition, do not constitute a case of invalidity on the grounds of significant and apparent defects, and that there was no legitimate revocation by any other competent authority, and thus, the instant sales contract, which was made as part of the implementation of the above conditions of authorization, has become null and void on the grounds that it was not definitely cancelled. However, although the father-child, who was attached to an administrative disposition, has become final and conclusive with the limit of the filing period, if there had already been a conflict of interest, it cannot be denied its validity, except for the cases where the defect was significant and apparent, but since the legal act, such as sale and purchase, etc., which was made as the implementation of the burden, was separate from the administrative disposition imposing a burden, the issue of non-performance of the burden is not in violation of social order or social order, and the Defendant’s allegation that it is valid and void.

D. Scope of return of unjust enrichment

(1) As to the scope of unjust enrichment to be returned to the Defendant, Article 65(2) latter part of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for the State or a local government-owned infrastructure, which is ceased to be used due to the implementation of a rearrangement project, shall be transferred to the project implementer without compensation within the extent equivalent to the installation cost of the newly installed infrastructure by the project implementer. As seen earlier, the Plaintiff paid KRW 7,868,35,195 to the Defendant the purchase price of the instant land subject to transfer without compensation under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for the purpose of implementing the reconstruction project.

(2) Therefore, since the costs incurred in installing newly installed infrastructure in implementing the instant reconstruction project exceed the purchase price of the instant land that the Plaintiff paid to the Defendant, the Defendant is obligated to return the said purchase price of KRW 7.24.5 million that the Plaintiff received from the Plaintiff based on the instant sales contract null and void to the Plaintiff.

(3) On the other hand, there is no evidence to acknowledge the Plaintiff’s head of malicious beneficiary, who had been well aware that the instant land falls under the maintenance infrastructure subject to gratuitous cultivation under the Urban Improvement Act from the time of the instant sales contract, and there is no evidence to conclude that the Defendant was aware of it from that thereafter before the instant lawsuit was filed. Rather, in light of the series of processes before and after the instant reconstruction project, the Defendant’s conclusion between the Plaintiff and the Plaintiff of the instant sales contract on the instant land subject to gratuitous cultivation is attributable to erroneous interpretation of relevant Acts and subordinate statutes, and it is difficult to view that the Defendant was well aware that the instant land falls under the object of free transfer under the Urban Improvement Act from the time of the instant sales contract as alleged by the Plaintiff, and thus, it is difficult to view that the Defendant was well aware that it falls under the object of free transfer under the Urban Improvement Act as the Plaintiff’s assertion.

(4) Ultimately, the defendant is obligated to pay to the plaintiff 7.24.5 billion won, and to pay damages for delay calculated at a rate of 5% per annum under the Civil Act and 20% per annum per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day to the date of delivery of a copy of the complaint of this case from January 10, 2008, which is the date of delivery of the application for modification of the purport of this case to June 24, 2009.

4. Conclusion

If so, the plaintiff's claim is accepted within the above scope of recognition, and the remaining claims are dismissed as they are not reasonable, and the judgment of the court of first instance is just. Thus, the defendant's appeal is without merit, and it is so decided as per Disposition.

Han Jin (Presiding Judge)

Dud iron iron

Kim Jong-soo

Related statutes

Urban Improvement Act

Article 2 (Definitions)

The definitions of terms used in this Act shall be as follows:

1. The term "maintenance zone" means the old zone designated and publicly notified under Article 4 in order to implement a planned rearrangement project;

2. The term "maintenance project" means any of the following projects, which rearranges infrastructure for rearrangement and improves or constructs structures, such as housing, within a rearrangement zone to restore urban functions pursuant to the procedures stipulated in this Act: Provided, That in the case of item (c), housing reconstruction projects implemented in a zone other than a rearrangement zone

(c) Housing reconstruction projects: Projects implemented to improve residential environments in the areas where infrastructure for rearrangement is good, but where worn-out and inferior structures are concentrated;

4. The term "maintenance infrastructure" means roads, water supply and sewerage systems, parks, public parking lots, common parking lots, common utility tunnels (referring to the common utility conduits under Article 2 (9) of the National Land Planning and Utilization Act; hereinafter the same shall apply), and other facilities prescribed by Presidential Decree as necessary for the living of residents when supplying gas, etc. necessary for their living;

Article 65 (Reversion of Rearrangement Basis Facilities, Land, etc.)

(2) The infrastructure for rearrangement newly installed by a project implementer, other than the head of a Si/Gun or a housing project implementer, in the course of implementing an improvement project, shall gratuitously vest in the State or a local government to manage such infrastructure, and the infrastructure for rearrangement owned by the State or a local government, the use of which is ceased due to the implementation of an improvement project, shall be transferred gratuitously to the project implementer to

(1) The project implementer shall notify the management agency of the kinds and details of the infrastructure to be reverted to the management agency and the property to be reverted to or transferred to the project implementer under paragraphs (1) and (2) prior to the completion of a rearrangement project, and the relevant fundamental facilities shall be deemed reverted to the State or a local government, or reverted to or transferred to the project implementer when the management agency notifies the completion approval

Article 20 of the Housing Construction Promotion Act (amended by Act No. 3998 of Dec. 24, 1987; hereinafter referred to as the "former Housing Construction Promotion Act") (Establishment of the apartment zone development master plan)

(1) The head of Si (including the Seoul Special Metropolitan City Mayor and the Busan Metropolitan City Mayor; hereinafter the same shall apply)/Gun shall establish a basic plan for the development of an apartment zone (hereinafter referred to as the "district development plan") under the conditions as prescribed by the Urban Planning Act and obtain the approval of the Minister of Construction and Transportation.

(2) When the head of a Si/Gun obtains approval under paragraph (1), he/she shall publicly announce a development plan for the relevant district, as prescribed by Presidential Decree, and have it available for public perusal.

Article 22 (Procedures for Execution of Apartment Zone Development Project)

(1) The Urban Redevelopment Act shall apply mutatis mutandis to the procedures for implementing the apartment district development project (Provided, That the same shall not apply where the State, a local government, or the Korea National Housing Corporation is a project undertaker). In such cases, the apartment district development project shall be deemed an urban redevelopment project, and when a district development plan under Article 20 (2) is publicly announced, it shall be deemed that the determination and public notification of the redevelopment project plan under Article 5 of the Urban Redevelopment Act has been made, and when a project implementor is designated and publicly notified under Article 21 (3), it shall be deemed that the expropriation or use of the land, etc. has been made at the high market price under Articles 10 and 11 of the Urban Redevelopment Act.

Article 5(Formulation and Determination of Redevelopment Plan) of the Urban Redevelopment Act (amended by Act No. 5116, Dec. 29, 1995; hereinafter referred to as the "former Urban Redevelopment Act").

(5) A decision or modification on a redevelopment project plan shall be determined by the Minister of Construction and Transportation after the resolution of the Central Urban Planning Committee: Provided, That a modification of minor matters prescribed by Presidential Decree shall be determined by the New Minister of Construction and Transportation, or by reporting it to the Minister of Construction and Transportation, without going through the resolution of the Central Urban Planning Committee.

(6) When the Minister of Construction and Transportation has determined or modified the redevelopment project plan under the provisions of paragraph (5), he shall notify it without delay in the Official Gazette, send the determined or modified redevelopment project plan to the head of the competent Si/Gun, and have it available for public perusal: Provided, That this shall not apply to the modified matters falling under the proviso of

(7) Matters to be determined by the urban planning among the matters of public announcement of the determination or modification of the redevelopment project plan under paragraph (6) shall be deemed to have been determined by the urban planning under the Urban Planning Act, and the final determination of the urban planning shall be deemed to have been abolished, which

Article 2 (Definitions of the former Urban Planning Act) of the Urban Planning Act (amended by Act No. 4427 of Dec. 14, 1991; hereinafter referred to as the "former Urban Planning Act").

(1) The definitions of terms used in this Act shall be as follows:

1. The term "urban planning" means the following plans concerning the land utilization, transportation, sanitation, industry, security, national defense, welfare, culture, etc. for promoting the sound development of urban communities and within the urban planning zones and their zones, and promoting the public well-being and public welfare:

(b) Roads, squares, parking lots, automobile depots, railroads, tracks color roads, high-speed railroads, rivers, canals, harbors, green areas, parks, playgrounds, observation towers, public vacant land offices, schools, libraries, libraries, water and sewerage, sewerage, drainage facilities, public cemeteries, crematoriums, waste treatment stations, electricity and supply facilities, reservoirs, gas supply facilities, oil storage facilities, oil supply facilities, water distribution business facilities, waterproof prevention facilities, erosion control facilities, erosion control facilities, and tide control facilities; 3. The term “urban planning facilities” means facilities installed according to the planning under subparagraph 1 (b) and (c) as determined by the urban planning;

Article 16 (Installation and Management of Urban Planning Facilities)

(1) When it is intended to install the facilities prescribed in Article 2 (1) 1 (b) and (c) in the ground space and underground space in the urban planning zones, only the urban planning committee shall install them: Provided, That the same shall not apply to the facilities prescribed by the Presidential Decree