Free transfer and paid purchase of fundamental infrastructures
Authors:   Legal Research Institute of Chonnam National University, Park Kunwoo 
Published: September 2023

The scope of fundamental infrastructure to be transferred free of charge to the project implementer is determined directly in accordance with the provisions of the Act on the improvement of urban areas and residential environments(Urban Renewal Act), and the administrative agency does not have discretion over whether or not to transfer and the scope thereof. Summarizing the legislative purpose of Article 97 of the Urban Renewal Act and the conceptual system of public facilities under the current Urban Planning Act, fundamental infrastructure owned by the state or local governments to be abolished due to maintenance projects is the type of infrastructure regardless of whether or not it was installed as an urban planning facility plan. It is difficult to agree with the logic of the existing judgment that drastically reduces the scope of fundamental infrastructure that is transferred free of charge without legal grounds.
Even after judicial criticism of the existing judgment was raised, the attitude of the Supreme Court, which schematically limited the subject of free transfer to urban planning facilities without presenting any additional reason, said that the range of free transfer could not be limited without a statutory basis. It is also inconsistent with the basic position of the precedent.
In addition, in the case of the subject judgment, if the administrative agency explicitly specified the scope of direct gratuitous transfer as the contents of the project im- plementation plan approval, this constitutes the contents of the project implementation plan approval disposition, so the objection to it is, in principle, an appeal against the disposition. will have to resort to litigation. Therefore, it is doubtful whether it is reasonable to judge that the scope of the gratuitous transfer obligation can be directly contested by the project operator in the subject judgment through a party suit.
In the reality of administrative disputes in Korea, which are operated with a focus on appeals suit, in principle, the project operator's disagreement over the scope of gratuitous transfer or purchase for a fee is an appeal lawsuit against dispositions such as approval of the project implementation plan that sets the scope of gratuitous transfer or the purchase agent for a fee. However, considering the purpose of the provisions of the Urban Renewal Act, it is reasonable to widely acknowledge the grounds for invalidation.
Finally, some legislative theories for institutional improvement are presented. First, it is necessary to clarify the scope by specifying in the Urban Renewal Act that de facto infrastructure be included in the subject of free transfer if it meets the physical requirements and publicity as infrastructure. Second, the current law gives up the definition of various public facilities and simply enumerates a list of facilities, causing legal uncertainty. The definitions of various public facilities must be clearly revised in the direction of properly regulating the publicity and externality of infrastructure as legal requirements. Third, Article 97 of the current law has the title of‘Vesting of Ownership of Fundamental Infrastructure and Land' with the intention of simultaneously regulating the ownership of fundamental infrastructure and its site. and transfer only. Strictly speaking, fundamental infrastructure and its site may be separate objects, so the subject of attribution and transfer under the above regulation is defined as “fundamental infrastructure and its Land” should be amended to clarify the rules regarding ownership of the site.