208Gahap16861 Registration of transfer of ownership

1. Kim○-○ (52 - 2)

Suwon-si

2. Na○○ (43 - 1)

Olsan City

3. door-○ (39 - 1)

Olsan City

4. Gamb○ (35 - 1)

Essung simuls

5. Gamb○ (60 - 1)

Suwon-si

6. Stamball ○ (39 2)

Suwon-si

7. Ansan (46 - 1)

Olsan City

8. Ansan (68 - 1)

Ansan-si

9.Woo-○ (35-1)

Olsan City

10. ○○ (52-1)

Olsan City

11. ○○ (44-1)

Essung simuls

12. Voluntary ○○ (22 - 1)

Olsan City

[Defendant-Appellant] Plaintiff 1 and 2 others

[Defendant-Appellant] Defendant 1 and 2 others

1. △△ Co., Ltd.

Olsan City

Representative Director 000

[Defendant-Appellant] Gyeong-gu et al.

Attorney 000,000

2. Gyeonggi-do;

Representative of the Office of Education 000

소송대리인 법무법인 ㅁㅁ

Attorney 000

June 18, 2009

July 9, 2009

1. The plaintiffs' claims against the defendants are all dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Defendant A Co., Ltd. shall carry out the procedure for the cancellation registration of each ownership transfer registration completed on June 00, 2008 with respect to each of the relevant plaintiffs listed in the attached Table column for the plaintiffs in the attached Table column for the same real estate, each of which was stated in the attached Table column for the plaintiffs, and the defendant Gyeonggi-do shall carry out the procedure for the registration of ownership transfer for each of the relevant plaintiffs listed in the attached Table column for the plaintiffs in the attached Table column for the registration of ownership transfer for each of the relevant real estate.

1. Basic facts

The following facts may be acknowledged by taking into account each of the statements in Gap evidence 1, 2, 5 through 9, 12, 14 (including each number), Gap evidence 16-5, Gap evidence 19, 22 (including each number), Eul evidence 1-2, Eul evidence 1-2, Eul evidence 2, 4, and 5, the whole purport of the pleadings as a whole.

A. Pursuant to Article 30 of the National Land Planning and Utilization Act (hereinafter referred to as the "National Land Planning Act"), on November 00, 200, the public notice of the decision of the urban management plan (No. 2003-43 of the public notice of the Osan City) which includes the land of 000 days in the Hasan-dong, Sinsan-si, was made 00,000, 200,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,000,00,000,000,00,000,00,00,000,00,000,000,00,000,00,000,00,000,00,00.

B. In addition, the head of the District Office of Education, which is the project implementer, prepared an implementation plan for the facility project of a school (including a public) with the content that the school is an elementary school (public) and the name of the school (tentative name) at the △ elementary school (tentative name) pursuant to Article 4(4) of the School Facilities Projects Promotion Act on January 0, 2006, and announced it (No. 2005 - 85 announced publicly).

C. Meanwhile, each land listed in the separate sheet (hereinafter referred to as the "land of this case") which was located within the project site of this case was the land owned by each of the plaintiff in the original sheet column of the plaintiff. The head of the District Education Office, which is the project implementer, completed the registration of the ownership of the land of this case from the plaintiffs to March 0, 2004 by consulting with the plaintiffs who are land owners under Articles 15 and 16 of the Act on Acquisition of and Compensation for Land, etc. for Public Works (hereinafter referred to as the "Public Works Act") in order to establish the "Srisung Elementary School" as a tentative Elementary School. The ownership of the land of this case was completed in the name of the competent office of education prior to the registration of the plaintiff (hereinafter referred to as the "registration of the previous office of education") on each of the corresponding days stated in the column for acquisition of the list of the same sheet as of March 0 to March 0, 206.

D. However, on January 0, 2007, the Governor of the Gyeonggi-do determined and publicly notified an urban management plan (specific use area alteration, district unit planning No. 2006-502) that designates KRW 000,000,000 as Class 1 district unit planning zone pursuant to Article 30 of the National Land Planning and Utilization Act, as a Class 1 district unit planning zone (Ordinance No. 2006-502 of the Gyeonggi-do Public Notice), and the above decision of the City/Do management plan was made separately from the instant project.

It included the establishment of elementary schools in the same 000 group.

E. On May 00, 2007, pursuant to Article 16 of the Housing Act, the Osan City approved the housing construction project plan to newly build an apartment 29 units on the 000 and 43 lots of land in the Masan-dong, Masan-si, Masan-si, and announced on May 00, 2007 (No. 2007 - 37 of the Osan-si Notice). The approval details of the said housing construction project plan did not include the contents of establishing an elementary school within the above district unit planning zone.

F. Accordingly, on January 00, 2008, the prospective occupants of the apartment constructed under the housing construction project implemented by the Defendant Company filed a group civil petition demanding the establishment of an elementary school in accordance with the original urban management plan at Osan-si, and on May 00, 2008, Osan-si entered into an exchange agreement with the Office of Education and the Defendant Company on May 00, 2008 as follows:

Article 5 (Agreement on Exchange of Land)

① Property owned by the Defendant Company “Sasan-dong 00 - 00 - 317 m2, 00 - 00 - Factory site

3, 600 square meters, 00 - 5, 567 square meters prior to 00 - 000 - 6,025 square meters prior to 0 - 00 - same 00 -

"Land within an apartment complex" and the property owned by the defendant Gyeonggi-do (hereinafter referred to as "land within an apartment complex") of this case

land shall be exchanged without settling the area and supply price of the land.

3. Osan-si shall maintain the determination of urban planning facilities (school facilities) with respect to “the instant land”, and

Pursuant to the exchange of land, the original owner's repurchase right, etc. against "land of this case" shall be avoided at the time of filing other civil petition

The company and the office shall be dealt with under the responsibility of Osan City.

Article 7 (Site Creation Works)

② On July 2008, 2008, the Defendant Company’s “land in an apartment complex” completed the construction work of suspending school sites for “land in an apartment complex”

shall complete the construction of the infrastructure and the requirements of the U.S. Office of Education by no later than six months before the opening of the construction of the infrastructure.

shall not hinder the establishment of a school later after completion of the course.

Article 9 (Other Matters)

Osan-si shall be the site for a middle school within the district unit planning zone at the time of the establishment of an additional district unit planning plan.

B Upon determining the facility and applying for approval of the housing construction project plan, the Luxembourg Office of Education shall purchase the school site to Osan City.

When a business operator requests the Office of Education to consult on the grant of donation free of charge, Osan City shall do so.

A site for the relevant middle school shall, as requested by the Office of Education, cooperate with the Simplification Office of Education for free donation.

G. Accordingly, on June 00, 2008, the Defendant Gyeonggi-do concluded a contract with the Defendant Company to exchange the instant land owned by the Defendant Gyeonggi-do and the land in the apartment complex owned by the Defendant Company, and completed the registration of ownership transfer under the name of the Defendant Company on June 00, 2008.

H. The superintendent of the Gyeonggi-do Office of Education, on September 00, 2008, set up a basic plan for private investment facilities project, which is designated as a private investment project and publicly announced (No. 2008 - 58 publicly notified by the Gyeonggi-do Office of Education) by designating the project to establish the undeveloped elementary school at 000, Masan-dong (referring to the land in apartment complex) under Article 8-2(2) and Article 10(3) of the Act on Public-Private Partnerships in Infrastructure.

2. Assertion and determination

(a) the relevant provisions;

Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Law No. 17 October 17, 2007)

865 (amended by Act No. 8665)

Article 91 (Right of Repurchase)

(1) Ten years from the date of acquisition through consultation or the date of commencing the expropriation of land (hereafter referred to as "acquisition date" in this Article).

all or part of the land acquired due to the discontinuance, alteration, or other reasons of the project;

Where it becomes unnecessary to do so, the landowner or his/her general successor at the time of the acquisition date (hereinafter referred to as "repatrier").

(d) One year from the time when the whole or part of the relevant land has become unnecessary, or the date of acquisition thereof.

within 10 years from the base date, an amount equivalent to the compensation paid for such land shall be paid to the project operator.

such land may be redeemed after payment.

(2) The provisions of paragraph (1) shall not use the whole land acquired for the relevant business within five years from the date of acquisition.

In such cases, the repurchase right shall be exercised within six years from the date of acquisition.

section 22.

(3) The remaining land purchased or expropriated under Article 74 (1) shall be a group of land adjacent to the remaining land.

No repurchase shall be made unless the land has become unnecessary.

(4) Where the price of land is significantly changed compared with at the time of acquisition, project implementers and repurchase creditors.

An agreement shall be made on the amount of redemption and an increase or decrease in such amount, if no agreement is reached.

may file a petition with the court.

(5) Repurchase rights under paragraphs (1) through (3) shall be held by a public corporation under the conditions as prescribed by the Registration of Real Estate Act.

Any registration of an acquisition under consultation or expropriation of the land required for the business has been made, such registration shall be set up against the third party.

of the corporation.

(6) Land necessary for public works after obtaining project approval from the State, local governments, or government-invested institutions.

other public services referred to in subparagraphs 1 through 4 of Article 4 for which the relevant public services are provided after the acquisition through consultation or expropriation;

Where a repurchase right is changed to any of the following projects, the period for exercising the repurchase right under paragraphs (1) and (2) shall be in the Official Gazette.

The date of announcement of the change of the sea public works. In such cases, the State, local governments or the Government

investment agency shall notify the repurchase authority of any change in public works as prescribed by Presidential Decree.

of this section.

B. The plaintiff and the defendants' assertion

As the cause of the instant claim, the Plaintiff’s project to build the △ Elementary School, which is a public interest project scheduled at the time when the Defendant Gyeonggi-do acquired the instant land through consultation, is transferred to the Defendant Company the ownership of the said land, and it was virtually abolished due to the confirmation that the △ Elementary School, which was originally established on the said ground, will be relocated or newly constructed on the apartment complex. Therefore, the instant land became no longer necessary for the instant project to build the △ Elementary School, which is the initial purpose of acquisition, and therefore, the Plaintiffs may exercise the right of repurchase on the instant land pursuant to Article 91(1) of the Public Works Act, and the Plaintiffs seek the cancellation of the registration of transfer of ownership in the name of the Defendant Company with respect to the instant land, and the implementation of the procedures for transfer registration of ownership in the future of the Plaintiff for the Defendant Gyeonggi-do.

For this reason, the defendants asserted that the "business" under Article 91 (1) of the Public Works Act refers to the "school construction business" in this case, and that the land in this case is still determined as school site facilities and the defendant Gyeonggi-do plans to build middle schools on the land in this case, so the school building business, which is the original acquisition purpose business, continues to maintain its identity, and thus, it does not constitute "the case where the whole or part of the acquired land becomes unnecessary due to the discontinuation or alteration of the business in this case or for any other reason," and thus, it does not claim that the plaintiffs do not have the right of repurchase.

C. As to the occurrence of the grounds for redemption

Therefore, it is examined whether the business which acquired the land of this case by consultation was transferred to the defendant company and the ground for repurchase occurred due to the abolition of the construction of the △ Elementary School in another place, or whether the ownership of the defendant company continues to exist after the transfer of ownership to the defendant company.

(4) Since the Defendants’ initial purpose of this case’s new construction project was to acquire the land from Defendant 1 to Defendant 1’s new construction site, the term “the closure or alteration of the project” means the closure or alteration of the project to another business, and the term “the need to use all or part of the acquired land for the purpose of its acquisition” means the light of the need to use the land acquired by the project operator for the acquisition of the land for the purpose of this case’s new construction site’s new construction site’s new construction site’s new construction site’s new construction site’s new construction site’s new construction site’s new construction site’s new construction site’s 7th high school construction site’s new construction site’s new construction site’s new construction site’s new construction site’s new construction site’s new construction site’s 9th high school construction site’s new construction site’s new construction site’s new construction site’s new construction site’s new construction site’s 3th high school construction project’s new construction site’s new construction site’s new construction site’s new construction site’

In light of the fact that the exercise of the right to expropriate land, etc. which originally limits the people's property rights should be limited to the minimum limit necessary for the implementation of a specific public project, which is essential and inevitable, due to the change of circumstances, etc., if all or part of the land acquired for the public project becomes unnecessary due to the abolition of the whole or part of the specific public project due to the change of circumstances, etc., it is a general principle that if the land was returned to the repurchase right holder who exercises the right to repurchase even if it is necessary for a new public project, it would be re-acquisition or expropriate the land (see Supreme Court Decision 91Da29927 delivered on April 28, 192). Thus, since the land acquisition project of this case is specified as the business of construction of the Seocho Elementary School, and the ownership of the land of this case is transferred to the defendant company, and the existing elementary school is newly constructed at a place other than the originally scheduled elementary school, it shall not be deemed that the land of this case is being implemented in the middle school construction project of this case.

D. As to whether the exercise of the redemptive right is legitimate

Furthermore, as to the legitimacy of the plaintiffs' exercise of the right to repurchase, the plaintiffs may exercise the right to repurchase, as long as the grounds for repurchase have occurred as above, and as long as the registration of ownership transfer has been completed in the future of the defendant Gyeonggi-do due to the narrow acquisition of the public land as seen earlier, even if such registration was again transferred to the defendant company, the right to repurchase is in accordance with Article 91(5) of the Public Works

Inasmuch as redemption under Article 91 of the Public Works Act is established without any limit to the project operator's intent by paying in advance the amount equivalent to the compensation received by the repurchase right holder when the requirements for repurchase occur within the redemption period, and unilaterally expresses his/her intention of repurchase. Therefore, in cases where a considerable amount of the redemption price is not paid or deposited, a claim for registration of ownership transfer due to repurchase as well as a claim for registration of ownership transfer due to redemption of the redemption price cannot be filed (see Supreme Court Decision 94Da4695 delivered on February 9, 1996). However, until the present change of the theory of this case is terminated, the plaintiffs are the plaintiffs who were the plaintiffs who did not pay or deposit the amount equivalent to the compensation, so the plaintiffs' assertion for exercise of the repurchase right in the situation where the payment or deposit of compensation is not made in advance is without merit.

3. Conclusion

Therefore, the plaintiffs' claims against the defendants are dismissed as it is without merit. It is so decided as per Disposition by the State.

Judges Jeon Soo-dae

Judges Min Jong-nam

Judges Lee Sung-hoon