Open Decision Ledger · Civil obligations & remedies
Floor-area-ratio benefit cannot displace the mandatory free-transfer rule
Supreme Court, Sept. 11, 2025, 2022Da248746 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 부당이득금
Official text on the National Law Information Center
Question
Where an administrative authority and a project implementer agreed that, in exchange for another benefit grounded in statute such as a relaxation of floor-area-ratio limits, the second clause of Article 65(2) of the former Urban and Residential Environment Maintenance Act would not apply, and the implementer did obtain that benefit, could the agreement exclude that clause?
Holding
No. The second clause of Article 65(2) of the former Urban and Residential Environment Maintenance Act compels the free transfer of the facilities whose use is abolished, up to the cost of the facilities newly installed by a private project implementer, so it is a mandatory provision, and a sale contract concluded in breach of it is void. Even where the administrative authority and the project implementer agreed not to apply that clause in exchange for another benefit such as a relaxation of floor-area-ratio limits, and the implementer did obtain that benefit, that circumstance alone does not exclude the clause, so the appeal against the award of the purchase price as unjust enrichment was dismissed.
Points at issue, verbatim
행정청과 사업시행자 사이에 사업시행자가 법령에 근거한 용적률 제한의 완화와 같은 다른 이익을 얻는 대신 구 도시 및 주거환경정비법 제65조 제2항 후단 규정을 적용하지 않기로 합의하였고 이에 따라 실제 사업시행자가 다른 이익을 얻은 경우, 위 후단 규정의 적용을 배제할 수 있는지 여부(소극)
Unofficial English translation
Where an administrative agency and a project operator have agreed that, in exchange for the project operator obtaining other benefits such as a relaxation of the floor area ratio limit under applicable statutes and regulations, the latter part of Article 65 (2) of the former Act on the Improvement of Urban Areas and Residential Environments will not be applied, and the project operator has in fact obtained other benefits accordingly, whether the application of the latter part may be excluded (negative)
Disposition
Dismissed Stated in the decision
상고를 기각한다. 상고비용은 피고가 부담한다.
Unofficial English translation
The appeal is dismissed. The appeal costs shall be borne by the defendant.
Form of the test
Circumstances weighed Stated in the decision
관련 법령에서 후단 규정의 적용을 배제할 수 있는 예외 규정을 따로 두고 있지 않은 점, 행정청과 사업시행자의 합의에 의하여 그 적용을 배제할 수 있다고 한다면 행정청의 우월적 지위 등에 비추어 후단 규정의 입법 취지가 몰각될 우려가 있는 점 등을 종합적으로 고려하면
Unofficial English translation
Considering comprehensively that the relevant statutes and regulations contain no separate exception permitting the exclusion of the application of the latter part, and that if its application could be excluded by agreement between the administrative agency and the project operator, then, in view of the superior position of the administrative agency and the like, there is a concern that the legislative intent of the latter part may be rendered nugatory,
Factors
- 구 도시 및 주거환경정비법 제65조 제2항 후단 규정의 입법 취지
- 구 도시 및 주거환경정비법 제65조 제2항 후단 규정을 위반하여 사업시행자와 국가 또는 지방자치단체가 체결한 매매계약 등의 효력(무효)
- 사업시행자가 법령에 근거한 용적률 제한의 완화와 같은 다른 이익을 얻는 대신 구 도시 및 주거환경정비법 제65조 제2항 후단 규정을 적용하지 않기로 합의하였고 이에 따라 실제 사업시행자가 다른 이익을 얻은 경우
- 위 후단 규정의 적용을 배제할 수 있는지 여부(소극)
Unofficial English translation
• Legislative intent of the latter part of Article 65 (2) of the former Act on the Improvement of Urban Areas and Residential Environments
• Effect (invalidity) of a sale contract, etc. concluded between the project operator and the State or a local government in violation of the latter part of Article 65 (2) of the former Act on the Improvement of Urban Areas and Residential Environments
• Where the project operator obtains other benefits such as a relaxation of the floor area ratio limit under applicable statutes and regulations in exchange for an agreement that the latter part of Article 65 (2) of the former Act on the Improvement of Urban Areas and Residential Environments will not be applied, and the project operator has in fact obtained other benefits accordingly
• Whether the application of the latter part may be excluded (negative)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2008. 12. 11. 선고 2007두14312 판결
Unofficial English translation
Supreme Court Decision 2007Du14312 decided December 11, 2008
Decisions referred to
대법원 2007. 4. 13. 선고 2006두11149 판결, 대법원 2007. 6. 28. 선고 2007두1699 판결, 대법원 2007. 7. 12. 선고 2007두6663 판결(공2007하, 1284), 대법원 2008. 12. 11. 선고 2007두14312 판결(공2009상, 34), 대법원 2009. 6. 11. 선고 2008다20751 판결(공2009하, 1107), 대법원 2018. 5. 11. 선고 2015다41671 판결(공2018상, 1049)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Where the cost of the facilities newly installed by the private implementer greatly exceeds the cost of the facilities whose use is abolished, what is the outer limit of the free transfer compelled by the second clause?
An amendment to Article 97(2) of the Urban and Residential Environment Maintenance Act, in particular the addition of an express exception permitting exclusion by agreement, would require this entry to be read again. So would a later decision revisiting the mandatory character of the second clause or the treatment of the benefit obtained in computing the unjust enrichment to be returned.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-24
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 6 of the 8 axes; the readings differed on axis 4 (form of the test), axis 8 (open question and revisit condition).
Axis 4 (Form of the test): Primary “Circumstances weighed” vs Independent “Elements stated”
The primary reading may emphasize the legislative purpose and several circumstances listed in the issues, while the independent reading may emphasize the categorical rule that the agreement and actual benefit do not exclude the provision.
구 도시 및 주거환경정비법 제65조 제2항 후단 규정을 위반하여 사업시행자와 국가 또는 지방자치단체가 체결한 매매계약 등의 효력(무효)Axis 8 (Open question and revisit condition): Primary “Where the cost of the facilities newly installed by the private implementer greatly exceeds the cost of the facilities whose use is abolished, what is the outer limit of the free transfer compelled by the second clause?” vs Independent “Could the authority obtain restitution of the alternative benefit through an independent claim distinct from deducting it from the purchase-price refund?”
The primary reading asks about the extent of compulsory gratuitous transfer, while the independent reading asks about a separate restitution claim for the alternative benefit.
행정청과 사업시행자 사이에 사업시행자가 법령에 근거한 용적률 제한의 완화와 같은 다른 이익을 얻는 대신 구 도시 및 주거환경정비법 제65조 제2항 후단 규정을 적용하지 않기로 합의하였고 이에 따라 실제 사업시행자가 다른 이익을 얻은 경우, 위 후단 규정의 적용을 배제할 수 있는지 여부(소극)Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Seoul High Court, in its judgment of 8 June 2022 (2021Na2033921), rejected the defendant's preliminary defence that the suit had no standing because it breached a no-suit agreement. It held that the plaintiff, having obtained the benefit of a relaxation of floor-area-ratio limits and having agreed with the defendant that the second clause of Article 65(2) of the former Act would not apply, had nonetheless concluded a sale contract that breached a mandatory provision as to the land in suit, so that part of the contract was void and the defendant had to return the purchase price as unjust enrichment. It also found that the plaintiff's reliance on invalidity was not barred by good faith, that the benefit from the floor-area-ratio increase could not be set off against the return, and that the payment was not payment of a non-debt barred by Article 742 or Article 744 of the Civil Act.
Supreme Court standard: The Supreme Court found no error on any of the five grounds of appeal. It first set out the legislative purpose of the second clause, held it to be a mandatory provision whose breach makes the sale contract void, and held further that no statute, including the National Land Planning and Utilization Act and its Enforcement Decree, provides an exception, so an agreement backed by another benefit cannot exclude it, recalling Supreme Court Decision 2007Du14312. It then held that the court below had not misunderstood the law on the mandatory provision, good faith, set-off in unjust enrichment, or payment of a non-debt, and dismissed the appeal on the unanimous opinion of the participating Justices.
Distinguishing conditions
- A project whose implementer is a mayor, a county head or the Housing and Urban Development Corporation, since the second clause governs facilities newly installed by a project implementer other than those.
- A dispute in which no facility newly installed by a private implementer and no State or local-government facility whose use is abolished is involved, since the free transfer runs between those two.
- A dispute governed by the Urban and Residential Environment Maintenance Act as wholly amended on 8 February 2017, since the decision applied Article 65(2) of the former Act, now Article 97(2).
Record verification notes
Confirm first which version of the Act governs, since Article 65(2) was replaced by Article 97(2) in the wholly amended Act of 8 February 2017. Then identify the facilities newly installed by the private implementer and the facilities whose use is abolished and that are owned by the State or a local government, and set the cost of the former against the range of the free transfer, because the second clause operates only up to that corresponding range. Gather whatever the parties hold out as the agreement and the benefit actually obtained, such as a floor-area-ratio relaxation, remembering that such circumstances alone cannot exclude the clause, and compute the purchase price equivalent to be returned without deducting that benefit.
From the official text
Points at issue
구 도시 및 주거환경정비법 제65조 제2항 후단 규정의 입법 취지 / 구 도시 및 주거환경정비법 제65조 제2항 후단 규정을 위반하여 사업시행자와 국가 또는 지방자치단체가 체결한 매매계약 등의 효력(무효) / 행정청과 사업시행자 사이에 사업시행자가 법령에 근거한 용적률 제한의 완화와 같은 다른 이익을 얻는 대신 구 도시 및 주거환경정비법 제65조 제2항 후단 규정을 적용하지 않기로 합의하였고 이에 따라 실제 사업시행자가 다른 이익을 얻은 경우, 위 후단 규정의 적용을 배제할 수 있는지 여부(소극)
Unofficial English translation
Legislative intent of the latter part of Article 65 (2) of the former Act on the Improvement of Urban Areas and Residential Environments / Effect (invalidity) of a sale contract, etc. concluded between the project operator and the State or a local government in violation of the latter part of Article 65 (2) of the former Act on the Improvement of Urban Areas and Residential Environments / Where an administrative agency and a project operator have agreed that, in exchange for the project operator obtaining other benefits such as a relaxation of the floor area ratio limit under applicable statutes and regulations, the latter part of Article 65 (2) of the former Act on the Improvement of Urban Areas and Residential Environments will not be applied, and the project operator has in fact obtained other benefits accordingly, whether the application of the latter part may be excluded (negative)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
상고를 기각한다. 상고비용은 피고가 부담한다.
Unofficial English translation
The appeal is dismissed. The appeal costs shall be borne by the defendant.
Provisions referred to
구 도시 및 주거환경정비법(2017. 2. 8. 법률 제14567호로 전부 개정되기 전의 것) 제65조 제2항(현행 제97조 제2항 참조), 민법 제105조
Read 2026-10-24 · Cross-read 2026-10-24. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
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