The case holding that it is unlawful that the administrative agency's approval for the implementation of a housing redevelopment project is granted conditions that allow the existing fundamental infrastructure to be transferred without compensation only within the scope of the amount obtained by deducting incentives for the increased floor area ratio from the cost of the newly installed fundamental infrastructure by the project implementer, and that the exceeding portion

The case holding that the application of the latter part of Article 65 (2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents is unlawful since the administrative agency's approval to implement a housing redevelopment project and granted the conditions of the approval to transfer the existing fundamental facilities without compensation only within the scope of the amount obtained by deducting incentives according to the floor area ratio increase from the installation costs of fundamental infrastructure to be newly installed on the ground that the floor area ratio was increased on the condition that the construction costs of fundamental infrastructure newly

Articles 28 and 65 (2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents

Plaintiff (Law Firm B, Attorneys Jeong Jae-ok et al., Counsel for plaintiff-appellant)

The head of Seongdong-gu Seoul Metropolitan Government (Attorney Kim-type, Counsel for defendant)

February 25, 2009

1. On June 12, 2008, the part in which the defendant added to the disposition of approval for the execution of housing redevelopment project by the plaintiff (attached Form 1) to the plaintiff shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is a housing redevelopment project partnership that obtained authorization from the Defendant on March 22, 2006 for the purpose of housing redevelopment improvement project (hereinafter “instant project”) on the ground of Seongdong-gu Seoul Metropolitan Government (hereinafter “instant project zone”).

B. On October 30, 2007, the Seoul Special Metropolitan City notified the Defendant of the following details: “Calculation of installation costs of infrastructure for rearrangement and improvement of business performance standards when the State or public property is transferred without compensation” (hereinafter “Seoul Special Metropolitan City business performance standards improvement plan”) and ordered the Defendant to implement the improvement plan.

It is pointed out that there is confusion in the relevant work, such as calculating installation costs for newly installed improvement infrastructure and calculating the amount of free transfer of state-owned or public property, which is disuse, on the grounds that there is no work process standard for the installation costs for newly installed improvement infrastructure and for the transfer of state-owned or public property, and that it is difficult to secure budget waste and administrative consistency due to partial overlapping support. I would like to prepare and implement a work process standard. I would like to apply incentive floor area ratio to the site that has already been provided as improvement infrastructure (public facilities) at the time of designating the relevant improvement zone, even though the project cost ratio is applied to the site that has already been provided as improvement infrastructure, it is difficult to secure budget waste and administrative consistency due to the lack of work process standard. III, it is pointed out that it is difficult to calculate installation costs for newly installed improvement infrastructure - calculation of installation cost for newly installed improvement infrastructure - calculation of installation cost for newly installed improvement infrastructure - calculation of installation cost for newly installed improvement infrastructure - calculation of project cost for installation costs for installation of new installation site - calculation and calculation of project cost for land under Article 4.

C. Accordingly, the defendant requested the plaintiff to calculate the amount of the floor area ratio incentive, and the plaintiff prepared and submitted to the defendant "the maintenance infrastructure report to be abolished," "the maintenance infrastructure report to be newly installed," and "the calculation of the floor area ratio incentive amount among the maintenance infrastructure newly installed." The main contents are as follows.

○ Reports on fundamental infrastructure whose disuse is abolished

12,086.75, 447.50, 12,058, 441, 200 Geum Dong-dong 2, 95-5 and other roads 5,578.75 2,565.506, 542, 293, 200 mountain 9-1, 35 single-dong 2,000 and 6,508.02,82,82,82,000,000 and 35 single-dong 2,000, in total of the appraised values (wons) of the land category and area incorporated into the zone;

○ Statement of Maintenance Infrastructure to be newly installed

The expenses incurred in installing the area of the Dong name lot in the main sentence of this Act shall be 220-1 to 1, 44 to 307 roads 3,871.4 14, 968, 989,200 associations mountain 9-1, 35 single parks, 7,061.0 19,61.0, 414, 436,500 - the total expenses of 10,932.434,583, 425,70

○ Calculation of Floor area ratio incentives among maintenance infrastructure newly installed

Maintenance Infrastructure Costs (i) 34,583,425,70 won (ii) 24,967,334,322 won free of charge, transferred 9,616,091,378 won (i) -B)

D. On June 12, 2008, the defendant approved the housing redevelopment project pursuant to Article 28 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9045 of March 28, 2008 and enforced on June 29, 2008) for the plaintiff, while transferring the existing fundamental infrastructure to the plaintiff without compensation and granting a condition to authorize the plaintiff to purchase the portion in excess after consulting with the management department of the property. The specific contents are as stated in [Attachment 1] condition (hereinafter referred to as the "authorization condition of this case").

E. Details of the instant project implementation authorization are as follows.

(a) Business location: A branch of Seongdong-gu Seoul Metropolitan Government (hereinafter omitted);

(b) Building scale: 3 underground floors, 21 above ground floors, 10 apartment units, 1,137 households; and

(3) Site area: 58,208 square meters;

(4) Total floor area: 154,629 square meters;

(5) Building coverage: 19.36%

(6) Floor area ratio: 220.16%

[Reasons for Recognition] Uncontentious Facts, Gap evidence 1 to Gap evidence 4-3, Eul evidence 8, the purport of the whole pleadings

2. Whether the authorization conditions of this case are lawful

A. The parties' assertion

(1) Plaintiff

Article 65(2) of the Do administration Act provides that “the installation cost of the newly installed fundamental infrastructure shall be the amount obtained by deducting the floor area ratio incentive from the installation cost of the newly installed fundamental infrastructure.” However, the latter part of Article 65(2) of the Do administration Act provides that “the construction cost of the newly installed fundamental infrastructure shall be transferred to the project implementer free of charge to the extent equivalent to the installation cost of the newly installed fundamental infrastructure.” The latter part of Article 65(2) of the Do administration Act does not provide any provision that limits the amount calculated by deducting the floor area ratio incentive from the installation cost of the newly installed fundamental infrastructure from the total installation cost of the newly installed fundamental infrastructure, such as the condition of the authorization in this case, and there is no provision that limits the amount calculated by deducting the floor area ratio incentive from the total installation cost of the newly installed fundamental infrastructure.” Accordingly, the condition of the authorization in this case is unlawful as it goes against the latter part of Article 65(2) of the Do administration Act, which is a mandatory provision.

(2) Defendant

(A) The Plaintiff already increased the floor area ratio of the instant project zone on the condition that he/she donated the new infrastructure to the Defendant. The instant authorization condition is legitimate on the premise that the existing infrastructure, which was abolished, is not subject to free transfer, is attached to the premise that the existing infrastructure subject to disuse is not subject to free transfer, under the premise that it is not a facility subject to free transfer, because it is necessary and appropriate to prevent the Plaintiff from double enjoying benefits from the floor area ratio incentive and State/public land transfer without compensation.

(B) Article 40(1)3 of the Public Property and Commodity Management Act (hereinafter “Public Property Act”) provides that when the use of the administrative property is abolished in a case where the transfer of miscellaneous property is possible, a person who provides other facilities instead of such use, his/her heir, or general successor shall be transferred. Article 46(2) of the Enforcement Decree of the Public Property and Commodity Management Act (hereinafter “Enforcement Decree of the Public Property Act”) which was amended by Presidential Decree No. 20772 of Apr. 18, 2008 and enforced from May 19, 2008 shall be limited to the scope of the value of the facilities being granted, and Article 40(1)3 of the Public Property and Commodity Management Act (hereinafter “Enforcement Decree of the Public Property Act”) provides that the specific use area, floor area ratio, building-to-land ratio, and number of floors shall be limited to the amount calculated by subtracting the amount corresponding to the above Act and subordinate statutes. Therefore, the authorization condition in this case is lawful.

B. Relevant statutes

[Attachment 2] The entry in the relevant statutes is as follows.

C. Facts of recognition

(1) On June 25, 2004, the Mayor of Seoul Special Metropolitan City announced the Seoul Special Metropolitan City’s Urban and Residential Environment Improvement Master Plan under the Seoul Special Metropolitan City Notice No. 2004-204, and on October 26, 2005, the project area of this case was designated and announced as a housing redevelopment zone under the Seoul Special Metropolitan City Notice No. 2005-332. At the time, the zone of this case was set as a Class-II general residential area by 20% and the floor area ratio was set by 200% or less.

(2) However, on July 5, 2006, the Plaintiff requested the Defendant to adjust the building-to-land ratio to below 30% and the floor area ratio to below 212.75%. On November 2006, the Plaintiff demanded that the floor area ratio be raised to 239.74% on the condition that park facilities newly created within the instant business area will be donated.

(3) After that, on January 15, 2007, the Plaintiff requested the Defendant to the effect that the floor area ratio would be increased to 241.59%, since the Plaintiff will contribute the road and the park to the Defendant. Accordingly, the Defendant partially accepted the Plaintiff’s above request and ordered the instant project implementation by setting the floor area ratio as 220.16%.

[Reasons for Recognition] Facts without dispute, entry B in the evidence of subparagraphs 1 through 5, the purport of the whole pleadings

(d) Markets:

(1) As in the instant case, in the case of a housing redevelopment project implemented to improve the residential environment in an area where worn-out and inferior buildings are concentrated, a new demand for public facilities, such as roads, parks, green areas, water supply and drainage systems, are created as key infrastructure for the lives of occupants.

However, in the case that the subject of the housing redevelopment project is a private business operator, it would obtain development gains more than the normal land price increase due to the implementation of the project, and most new demand for the public facilities is generated due to the implementation of the project and the residents who will move into the project. However, it is unfair that the State, etc. installs and maintains all of the taxes paid by the general public and reduces the burden on the specific project operator or the occupants.

In addition, on the other hand, if a private business operator installs public facilities using money, the problem is how to whom the maintenance and management responsibility should be borne and to whom the ownership should be attributed. In the modern welfare state where the citizen's survival consideration emerged as a major function of the state, the state or local government (hereinafter "the state, etc.") is considered as its subject.However, with respect to the private business operator's transfer of the ownership of public facilities installed at his own expense to the state, the problem of unconstitutionality has been constantly raised regarding the infringement of property rights.

(2) Therefore, as a solution to these problems, the Do administration law imposes all or part of the cost of installation on a person who caused the installation of public facilities under Article 60 or a project implementer who is a person who would benefit from it. Meanwhile, the infrastructure newly installed under the former part of Article 65(2) has been gratuitously reverted to the State or a local government which manages the relevant facility.

In addition, considering the property loss of a project implementer caused by a new infrastructure for rearrangement newly installed by a private project implementer without compensation to the management authority pursuant to the former part of Article 65(2) of the Do administration Act, the latter part of Article 65(2) of the Do administration Act stipulates that the infrastructure for rearrangement owned by the State or a local government shall be transferred without compensation to the project implementer within the extent equivalent to the installation cost of the newly installed infrastructure for rearrangement project by the project implementer. This is the legislative purpose of the legislation to compensate for the property loss of the project implementer within the reasonable scope (see Supreme Court Decision 2007Du6663, Jul. 12, 2007, etc.). In light of the legislative form and amendment history thereof, it is interpreted as a mandatory provision compelling a transfer without compensation (see, e.g., Supreme Court Decision 2007Du1699, Jun. 28, 2007).

(3) In light of the legislative intent and legal nature of the latter part of Article 65(2) of the Do administration Act as well as the exceptions that can be excluded from the application of the latter part of Article 65(2) of the Do administration Act as well as the legislative purpose of the latter part of Article 65(2) of the Do administration Act, it is naturally required under the principle of rule of law that it cannot be recognized without permission for exceptions that restrict the project operator’s rights under the latter part of Article 65(2) of the Do administration. If an administrative agency without any legal basis can exclude the latter part of Article 65(2) of the Do administration law from the application of the latter part of Article 65(2) of the Do administration administration Act, in fact, in light of the unique nature of the administrative law relationship with the decision of improvement plan and the authorization to implement the project, it is likely that the legislative purpose of the latter part of Article 65(2) of the Do administration might be dismissed, and the latter part of Article 25(2)101 of the Do administration administration administration decision is also excluded.

(4) We examine the instant case. According to the above, the Defendant acquired the benefit of raising the floor area ratio under the condition that the Plaintiff newly installed infrastructure was donated to the Plaintiff. Thus, in addition to the above floor area ratio incentive, the Plaintiff acquired double benefits if the existing infrastructure facilities are transferred to the Plaintiff without compensation. In order to prevent this, the amount of new infrastructure cost and the floor area ratio incentive provided by the Plaintiff is calculated as KRW 34,583,425,70 and KRW 24,967,34,322, the Plaintiff’s price of the existing infrastructure for rearrangement which is gratuitously reverted to the Plaintiff is 9,616,091,378 won, which is the difference in each of the above amounts, and the Plaintiff’s approval conditions were added to the project implementation authorization authorization of this case. Thus, the Plaintiff’s condition of authorization of this case is that the State or local government, which is abolished within the scope equivalent to the installation cost of the newly installed infrastructure, and that the latter part of Article 65(2) of the Enforcement Decree of the Public Property Act is not allowed in light of the aforementioned legal principles.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.

[Attachment 1] Conditions: (Omission)

[Attachment 2] Relevant Acts and subordinate statutes: (Omission)

Judges Kim Hong-do (Presiding Judge)