In a case where the State or a local government acquires land as a site for public facilities after the execution of a land readjustment project, and the land used as a site for public facilities falls under the land which will be disused after all or part of the previous public facilities is abolished or altered, and thus becomes the land subject to replotting in a land substitution plan, whether it constitutes “the whole or part of the land acquired due to the discontinuation or alteration of the relevant project and other causes” as provided by Article 91(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (negative in principle)

Article 91(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Act No. 8665 of Oct. 17, 2007); Article 2(1)1, Article 53(2), Article 62(1), and Article 63 of the former Land Readjustment Project Act ( repealed by Act No. 6252 of Jan. 28, 200)

Plaintiff (Law Firm Kangsan, Attorneys Kim Jong-soo et al., Counsel for the plaintiff-appellant)

Korea Land and Housing Corporation (Attorney Kim Jong-hwan, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2007Na103392 decided January 22, 2010

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiff’s appeal is dismissed.

The grounds of appeal are examined.

First, we examine the Plaintiff’s grounds of appeal and the Defendant’s grounds of appeal as to whether a repurchase right occurred.

According to Article 91(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8665 of Oct. 17, 2007; hereinafter “former Public Works Act”), where all or part of the acquired land becomes unnecessary due to the discontinuation, alteration or other causes of the relevant project within ten years from the date of acquisition through consultation or the date of expropriation of the relevant land (hereinafter “acquisition date”), the landowner at the time of the acquisition date or his/her general successor (hereinafter “re-holder”) may repurchase the relevant land by paying to the project operator an amount equivalent to the compensation paid for the relevant land, within one year from the date all or part of the relevant land becomes unnecessary, or within ten years from the date of acquisition thereof.

The term "cases where the whole or part of the acquired land becomes unnecessary due to the discontinuation, alteration, or other reasons of the relevant project" refers to cases where objective circumstances arise to deem that the relevant land no longer needs to be used directly for the relevant public project due to the discontinuation, alteration, etc. of a specific public project, regardless of the project operator's subjective intent. Whether the acquired land, etc. is unnecessary shall be determined reasonably in light of all the relevant circumstances, including the purpose and contents of the relevant project, the details and scope of the acquisition, the relationship with the relevant land, and its use (see, e.g., Supreme Court Decisions 97Da39766, Mar. 27, 1998; 2009Da43041, Oct. 15, 2009).

However, a land readjustment project under the former Land Readjustment Projects Act (repealed by Act No. 6252, Jan. 28, 200; hereinafter “Act”) is a project for the exchange, division, and consolidation of land which is conducted for the enhancement of utility as a site, the alteration of land category or form and quality, the alteration of public facilities, or the installation and alteration of public facilities (Article 2(1)1 of the Act). All land incorporated within the implementation district shall be treated as a whole, and the site of the necessary public facilities shall be decided first, and the land shall be divided into necessary public facilities, and the ownership and other rights of the previous land shall be transferred to a local government after replotting is adjusted according to the characteristics of the land (Article 2(1)1 of the Act; Article 2(3) of the Act shall be determined in relation to the land readjustment project (where part of the land is newly installed within the implementation district of the land readjustment project, the right to such land shall be determined by the former land substitution plan or the new land substitution plan, which belongs to the State or the previous land substitution plan for public facilities (see Supreme Court Decision 2007Da65, etc.

In light of the above provisions and legal principles, where the land used as the site of the public facilities owned by the State or local government after the acquisition of the land necessary for the public projects is installed as a substitute for the public facilities pursuant to Article 53(2) of the Act by the implementation of the land readjustment project, and the land becomes the object of land substitution without designating the land substitution in the land substitution plan for the reason that the whole or part of the previous public facilities is abolished or changed and becomes unusable, even if the land is used differently from the original purpose at the time of the initial acquisition, it is reasonable to view that the legal relationship of the land should be grasped in relation to the land concerned, if the land is incorporated into the land within the land substitution planning zone for the execution of the land readjustment project, even if it is used differently from the original purpose at the time of the land substitution project. Therefore, it is reasonable to view that the land acquired as the whole or part of the land is not necessary for the public facilities to be acquired as the land in order to improve its utility as a site and to improve the efficiency of the land use by the land consolidation project.

According to the reasoning of the judgment below and the record, the defendant was authorized as 94-26 on September 12, 1994 by 20m2, 30m2, 40m2, 5m2, 5m2, and 2,96m2,96m2 and 5m3m2 (hereinafter “the land of this case”), and the land of this case was registered as 2,861m2 and 3m2,96m2, 5m2, 5m2, and 9m2, 5m2, 5m2, 1997, 5m2, and 5m2, 96m2, 5m2, 196, 5m2, 5m2, and 9m2, 196, 5m2, 5m2, 196, and 9m2, 5m2, 196.

Examining these facts in light of the legal principles as seen earlier, part of the instant land is used as a site for the instant road or landscape green belt, which is a public facility, unlike the access road construction project No. 6, which is an urban planning project for the original purpose of the land readjustment project as incorporated in the instant land readjustment project zone, and even if some of the land is used as a site, it cannot be deemed that the Plaintiff

Therefore, the lower court’s conclusion that there is no room for a repurchase right in the case of the road portion among the instant land is justifiable. In so doing, it did not err by misapprehending the legal principles as to whether a repurchase right has been created, as otherwise alleged in the

However, the court below determined that, in the case of the landscape green belt and the site part of this case, the urban planning project aimed at the expropriation of the land of this case and the land readjustment project of this case are different in its purpose and nature, etc., on the ground that the land of this case is incorporated into the land readjustment project execution district of this case and the land readjustment project of this case after completion of the land readjustment project, as long as part of the land of this case becomes the landscape green belt and site of this case, the plaintiff can exercise the right of repurchase for the landscape green belt and site part of this case from the time the land of this case is decided to be integrated into the land readjustment zone of this case. The judgment below erred in the misapprehension of legal principles

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Defendant, the part against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)