Law Firm 16 Housing Redevelopment and Improvement Project Association (Law Firm Han & Yang, Attorney Kim Dong-ho, Counsel for the plaintiff-appellant)

The head of Dongdaemun-gu Seoul Metropolitan Government (Attorney Song-yang, Counsel for defendant-appellant)

December 4, 2015

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s imposition of charges for each school site amounting to KRW 1,714,514,00 on September 21, 2012 against the Plaintiff, KRW 429,860,10 on March 4, 2013, KRW 815,953,990 on October 31, 2013, KRW 1,284,948,460 on September 29, 2014 is confirmed to be null and void.

1. Details of the disposition;

A. The Plaintiff was authorized to establish an association from the Defendant on January 25, 2007, as a housing redevelopment and rearrangement project association established to implement a housing redevelopment and rearrangement project (hereinafter “instant project”) covering 178 housing units, Dongdaemun-gu, Seoul, Dongdaemun-gu.

B. On October 24, 2007, the Plaintiff obtained the approval of the project implementation plan for the instant project from the Defendant, and obtained the approval of the management and disposal plan on December 31, 2008, and obtained the approval on October 13, 2014 after entering the commencement of construction after completing construction.

C. According to Articles 5 and 5-2 of the former Act on Special Cases Concerning the Acquisition, etc. of School Sites (amended by Act No. 13006, Jan. 20, 2015; hereinafter “former School Site Act”), based on the number of households sold by the Plaintiff in general, the Defendant imposed a school site charge on the Plaintiff as follows (hereinafter the number Nos. 1 through 4 is specified in the number as in the order of No. 1 as in the instant disposition, and the total of the dispositions of this case is referred to as “each of the instant dispositions”).

A disposition of inconsistency with the Constitution of this case, which was rendered after the ruling of inconsistency with the Constitution of this case, was rendered after October 31, 2013, 429,860,100 won, and KRW 815,953,90, and KRW 490, September 29, 2014, 1,714,514,00 won as of September 21, 2012, and the previous ruling of inconsistency with the Constitution of this case, before the ruling of inconsistency with the Constitution of this case was rendered.

D. Meanwhile, on the grounds stated in the reasons indicated in the separate decision on April 24, 2014, the Constitutional Court rendered a provisional decision of inconsistency with the Constitution (see, e.g., Constitutional Court Decision 2013Hun-Ga28, Apr. 25, 2014) with the proviso to Article 5(1)5 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “instant statutory provisions”) concerning “Housing redevelopment Projects” under Article 2 subparag. 2(b) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents. The aforementioned statutory provisions are inconsistent with the Constitution. The Constitutional Court’s provisional decision of inconsistency with the Constitution (see, e.g., Constitutional Court Decision 2013Hun-Ga20, Apr. 24, 2014) and Article 25 subparag. 13(c) of the former Act on Special Cases Concerning the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (see, e., Constitutional Court Decision 2013Hun-Ga513).

[Ground of recognition] Unsatisfy, entry of Gap evidence 2 through 6 (including additional number), the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

As a result of the Plaintiff’s implementation of housing redevelopment projects, even though 606 households have decreased compared to the existing ones, the Defendant imposed school site charges on all of 957 households sold in general. In light of the inconsistency with the Constitution and the previous inconsistency with the Constitution, each of the dispositions in this case is a disposition of invalidation as it is unlawful and obvious that the defects are significant and apparent.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Judgment on the disposition Nos. 1 through 3 of this case

If the Constitutional Court, after the issuance of an administrative disposition based on the law, decided that the law, which served as the basis for the administrative disposition, was unconstitutional, then the administrative disposition becomes identical to that which was conducted without the legal basis and thus becomes defective. However, in order to make the defective administrative disposition null and void as a matter of course, the defect must be serious, and it must be apparent. In general, the reason that the law is in violation of the Constitution cannot be objectively obvious before the Constitutional Court renders a decision of unconstitutionality. Thus, the reason that the law, which served as the basis for the administrative disposition, is in violation of the Constitution before the Constitutional Court renders a decision of unconstitutionality, can only be the premise for a lawsuit seeking cancellation of the administrative disposition, and it is reasonable to deem that the pertinent legal principle is not a justifiable ground (see Supreme Court Decision 2012Du17803, Oct. 31, 2013). The foregoing legal principle also applies at the time of determining the grounds for ipso facto invalidation of the administrative disposition, which was

On September 21, 2012, the instant disposition was rendered on March 4, 2013. The fact that the instant disposition was rendered on October 31, 2013, and the fact that the ruling of inconsistency with the Constitution was rendered on April 24, 2014 is recognized as above. Therefore, even if the instant disposition was made on the basis of the instant legal provisions that do not conform with the Constitution, it cannot be objectively apparent in light of the foregoing legal principles, and thus, the instant dispositions cannot be deemed as null and void as a matter of course (On the other hand, the previous ruling of inconsistency with the Constitution is irrelevant to whether each of the instant dispositions pertaining to the housing redevelopment project was defective or not).

2) Judgment on the disposition No. 4 of this case

A) The Constitutional Court's ruling of inconsistency with the Constitution orders the provisional application of this case without losing its validity even after confirming the unconstitutionality of the legal provisions of this case. This is due to the fact that, in the case of immediately losing the validity of the legal provisions of this case, the part that prevents existing residents and the owners of land and buildings from imposing school site charges on the development projects falling under "in the case of sale in lots to the existing residents and the owners of the land and buildings," and that more unconstitutional circumstances arise, and thus, it is not necessary to continue to maintain unreasonable discrimination under the legal provisions of this case until the enforcement of the Act until the enactment of the Act. Therefore, the part that continuously ordered the legal provisions of this case to continue to apply in the case of sale in lots to existing residents and the owners of the land and buildings is a ground provision that prevents the imposition of school site charges on the development projects in the case of sale in lots in the housing redevelopment project, which is subject to cash settlement and does not extend to the fact that it is a ground provision that the school site charges charges can be imposed on the existing development projects (see Supreme Court Decision 2008Du85, Sept. 28, 2018, 201018

B) Therefore, if there is a school site charge imposed on the portion of the instant legal provision that became the object of sale or cash settlement among the instant legal provision that was made after the decision of inconsistency with the Constitution was made based on the instant legal provision, and the number of households does not increase compared with the existing one, the relevant part is unlawful as it is based on the part of the legal provision of this case, which became unconstitutional and is in the status of suspension of its application

C) However, examining whether the above defect is obvious, the decision of inconsistency with the Constitution as seen earlier does not extend to the portion on which the school site charges can be imposed on the development project that is subject to the cash settlement in the housing redevelopment project and that is not increased in the number of households compared to the existing one by selling it to a third party. However, the above provision of the legal provision of this case does not explicitly indicate the order of inconsistency with the Constitution as to the suspension of application of the above provision of this case and its reasons. Therefore, even if there are parts on the school site charges imposed on the development project that is subject to sale or cash settlement, which is not increased in the number of households compared to the existing one by selling it to a third party, among the disposition of inconsistency with the Constitution as to Article 4 of this case, even if there is a part on the charges on the school site imposed on the development project

3) Ultimately, if any part of each of the dispositions in the instant case imposes on the development project whose number of households increased compared to the existing ones, such part cannot be deemed unlawful. Thus, it cannot be deemed as unlawful without any need to examine whether the defect is serious and clear. Even if there are parts of the school site charges imposed on the development project whose number of households increases compared to the existing one, as alleged by the Plaintiff, it cannot be said that the defect is evident as seen above. Thus, each of the dispositions in the instant case cannot be deemed as void as a matter of course without examining whether the number of households increases due to the project in the instant case.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment]

Judges Kim Jong-Un (Presiding Judge)