민간공원 특례사업에 관한 연구 : 초과이익 환수를 중심으로

민간공원 특례사업의 초과이익 환수 방안을 연구했다.

According to the constitutional court’s decision of ‘Uncomfortable to Constitution’ on long-term incomplete urban parks, an effective institution of the long-term unimplemented urban parks project was introduced in the Park and Green Space Act, and through induction of private capital, urban parks were installed. For a response to effective solutions of the long-term incomplete urban parks and a solution to difficulty in installment of urban parks through public finance, as the Park and Green Space Act was revised in 2009, the special project for private parks was introduced.

There was a big difference between the old special project for private parks that urban parks could be installed by private capital and the private park installment project under the Park and Green Space Act(1 of the Article No. 21); The latter acknowledged special exceptions on development within sites. As the special exceptions on development were acknowledged, if private parks developers have certain conditions of having more than 70% of the park sites that were acquired through their own expenses and donation of park facilities that were installed through their own expenses, outside of the park facilities, they are allowed to install non-park facilities and do subsidiary business.

For the old private park projects, private park developers did not have other ways to cover the expenses of park installment and attractions to participate in the development. However, as the special projects of private parks are allowed to install non-park facilities within the park site and do subsidiary enterprises, private park developers can recover the expenses invested for park installment and pursue appropriate profits, and attractions are provided to induce private capital for installment of urban parks.

As it seems that the special projects for private parks are similar to the private investment projects under the private investment law enacted with a purpose to develop the infrastructure, it looks desirable that the Private Investment Law is actively applied and used for private park special projects, but it was regulated that only a single article (the Article No. 21 of the Private Investment Law) is allowed to be applied for subsidiary enterprises of the special projects.

The legislators regulated that the specific contents and procedure of the special projects of private parks are made through agreement between the park management office and the park developers, but they did not even make specific procedure or contents of the special projects in the Park and Green Space Act and delegated legislation. Like that, it was regulated that the special project for private parks is enforced only dependent on the agreements, which is the imperfection of legislation.

As the Ministry of Land, Infrastructure, and Transport realized the problem belatedly, it enacted the Special Directions on Development as an instruction, suggested a standard agreement and presented guidelines, but as the Special Directions did not have legal base and principle, problems may arise. The problem is: The urban park development projects for which much capital is invested, in which property rights of the people is limited and which may have an important influence on the public interest of the people are dependent on the agreement between the park management office and the private park developers.

As legislators regulate that the special projects shall be implemented through the agreement between the Park Management Office and private park developers, in the center of the special projects the above mentioned agreement exists. Because of the introduction of the special projects for private parks, the concepts of non-park facilities, joint enforcement and subsidiary projects first appeared in the Green Laws for Parks, but legislators did not regulate satisfactory concepts on them and left a task to search for the nature and meaning of them through interpretation of related laws.

As it is valid that on the Green Laws or Parks, the legal nature of agreement is considered to be a public contract, legal litigation on the agreement shall be performed between parties concerned and as for related laws, in addition to the Green Laws for Parks and the Laws for Private Investment, public regulations shall be first applied, and then analogical inference of the statue of justice can be considered.

Non-park facilities are included in the concept of urban parks on the Green Laws for Parks, subsidiary projects performed through installment of non-park facilities are naturally included in the scope of the urban park projects and it is regulated that the Park Management Office that jointly perform the special projects for private parks with private park organizers jointly perform subsidiary projects through installment of non-park facilities.

The concepts of agreement, subsidiary projects and joint performance are a presupposition to understand ‘ excess profit recovery of special projects for private parks’ that suddenly appeared in 2020s In respect to the aforementioned concepts on special projects for private parks, the special project is a land development project and the profit is obtained through development.

At that time when the special projects were first introduced, it seemed that legislators were not aware of the problem on recovery of excess profit and as private park organizers construct urban parks with their own expenses and donate them to federal or local governments, it was considered that it is natural for private park organizers to acquire all of the profit obtained from special projects including excess profit.

However, since the so-called "Daechang-dong Case" occurred in 2021 and excessive profits from land development projects became a matter of national concern, the Ministry of Land, Infrastructure and Transport revised the Special Instructions on Development in January 2022 to enable the recovery of excess profits through agreements. Subsequently, local