도시계획시설에서의 점유 판단 = Occupancy judgment in urban planning facilities

다국어 초록 (Multilingual Abstract)

The essence of this Supreme Court ruling can be understood only by understanding the structure of the urban planning facility project in this case. Typically, public facilities are provided as part of a housing construction project. However, in this case, it was installed as an urban planning facility project separate from the housing construction project, making the cause of the change in ownership of the urban planning facilities in this case, excluding the parking lot, unclear. If it had been installed during a housing construction project, it would have been a gratuitous contribution facility, but transfer of ownership by contributed acceptance became possible according to the conditions of the urban planning facility project implementation plan approval.
The Supreme Court's decision to deny the completion of the statute of limitations by acknowledging the plaintiff's possession of the parking lot in this case is reasonable. However, since it was clear that the parking lot in this case was a public object as an urban planning facility provided for use by the general public, it is somewhat surprising that whether or not it was occupied became a major issue. Presumably, the reason why there was such controversy regarding possession was because of the criteria for determining possession that did not take into account the non-exclusive nature of the public objects. If the criteria for determining possession, which requires exclusive de facto control from a property rights perspective, are applied consistently regardless of whether the property is for public use, erroneous rulings are bound to occur. If the public objects perspective, which was not clearly revealed in this Supreme Court ruling, can be presented as a clear legal principle, confusion in practice will be reduced in determining possession of public objects such as urban planning facilities.

참고문헌 (Reference)

1 박재윤, "행정행위의 부관에 관한 분쟁유형별 고찰" (38) : 2014

2 홍정선, "행정법원론(하)" 박영사 2021

3 류지태, "행정법신론" 신영사 2008

4 박균성, "행정법론(하)" 박영사 2021

5 김동희, "행정법Ⅱ" 박영사 2021

6 하명호, "행정법" 박영사 2023

7 송시강, "특별행정법" 박영사 2022

8 "주석 민법[총칙 3]" 2019

9 "주석 민법[물권 1]" 2019

10 "민법주해[IV]" 박영사 2022

11 안신재, "기부채납에 관한 민사법적 고찰" 26 : 2011

12 朴正勳, "기부채납 부담과 의사표시의 착오" (3) : 1998

13 양은영, "기부채납 법제에 관한 연구" 성균관대학교 2017

14 김남진, "교섭·합의에 의한 부관의 효력 -대법원 1995. 6. 13. 선고, 94다56883 판결-" (7) : 1995

15 이승민, "공공시설의 무상귀속에 관한 소고" (34) : 2012

16 김종보, "건설법의 이해" 북포레 2023

17 허지인, "개발사업법상 공공시설에 관한 공법적 연구" 서울대학교 2020