[2] Whether the removal of a building is an inevitable building due to aging under Article 2 subparagraph 3 (c) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents immediately after the expiration of a certain period such as 20 years after the completion of construction (negative)

1. Regarding ground of appeal No. 1

A. In a case where a statute delegates a certain matter to a municipal ordinance, determination of whether the municipal ordinance complies with the limits of delegation should also be made by comprehensively examining the legislative purpose and content of the relevant statutory provision, structure of the provision, and relationship with other provisions. In addition, whether the delegation provision itself clearly specifies the limits of delegation by using terms with which the meaning can be accurately known, or whether the delegation provision exceeds the limits of its literal meaning, or whether a new legislation was made beyond the bounds of delegation by expanding or reducing the scope of the terms used in the delegation provision beyond the meaning of the terms used in the delegation provision (see Supreme Court Decision 2009Du17797, Apr. 29, 2010, etc.).

B. According to the reasoning of the judgment of the court below and the judgment of the court of first instance partially accepted by the court below, Article 4 subparagraph 2 of the Gyeonggi-do Ordinance on the Maintenance and Improvement of Urban Areas and Residential Environments (amended by the Gyeonggi-do Ordinance No. 3933 of August 13, 2009; hereinafter " Gyeonggi-do Ordinance on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents") of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 21679 of August 11, 2009; hereinafter "former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents") only specify the requirements for designation of a zone subject to the maintenance plan for a housing redevelopment project within the scope stipulated in subparagraph 2 of attached Table 1] of the above [Attachment Table 1], and it cannot be deemed that the above Ordinance on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents was valid, even if it only regulates the size or total area of buildings corresponding to the above requirements for designation.

C. In light of the above legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there is no error of law by misapprehending the legal principles on Article 4 subparagraph 2 of the Gyeonggi-do Improvement Ordinance

2. Regarding ground of appeal No. 2

A. Article 2 subparag. 3(c) of the Urban Improvement Act provides that “a building, the removal of which is inevitable due to the impediments to urban aesthetic view, functional defects of a building, structural defects due to defective construction or deterioration, etc., as prescribed by the ordinance of a City/Do, as prescribed by the Presidential Decree.” Article 2(2) of the former Enforcement Decree of the Urban Improvement Act provides that “a building as prescribed by the Presidential Decree” means a building falling under any of the following subparagraphs, and Article 2 subparag. 3(c) of the former Enforcement Decree provides that “a building as prescribed by the Presidential Decree” means a building for which 20 years (where a City/Do municipal ordinance prescribes more than the number of years, it refers to the number of years) have passed since its completion.”

As can be seen, the purport of Article 2 subparagraph 3 (c) of the Act on the Improvement of Urban Areas and its Enforcement Decree is that a building for which 20 years (20 years have passed since its completion, if the ordinance of a City/Do provides for more than 20 years after its completion; hereinafter referred to as "20 years after its completion") as one of "a building that needs to be removed due to structural defects, etc. caused by aging, etc." is that the building is deteriorated in proportion to its completion and its structural defects are highly likely to occur accordingly. Thus, in determining whether removal under Article 2 subparagraph 3 (c) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and its Enforcement Decree constitutes an inevitable worn-out and inferior building, it shall be deemed that it was presented as one of the various standards that form a sign of aging and inequality, and if 20 years have passed after its completion only after its completion, it shall not be deemed that it constitutes an inevitable removal due to structural defects, etc. caused by aging under the Act and its Enforcement Decree."

Ultimately, “a building prescribed by ordinance of a City/Do, as prescribed by Presidential Decree, which is inevitable to be removed due to structural defects, etc. caused by deterioration of the building” under Article 2 subparag. 3(c) of the Urban Improvement Act and Article 2(2)1(c) of the Enforcement Decree thereof means a building for which 20 years, etc. have passed after its completion and its removal is inevitable due to deterioration of the building and structural defects, etc. (see Supreme Court en banc Decision 2010Du16592, Jun. 18, 2012).

B. According to the reasoning of the judgment below and the record, the defendant designated and publicly announced a single unit of 68,817 square meters within the Dong-dong area of Bupyeong-gu as an area improvement zone for redevelopment of housing (hereinafter “instant rearrangement zone”) under Article 2 subparag. 3 (c) of the Act on the Maintenance and Improvement of Gyeonggi-do and for which 20 years have passed since the completion of the construction on the basis of only the number of years elapsed after the completion of the construction, constitutes an inevitable building due to structural defects, etc. caused by deterioration as stipulated in Article 2 subparag. 3 (c) of the Act on the Maintenance and Improvement of Urban Areas, and the number of buildings corresponding thereto among the buildings within the said area becomes 62.32% (total building 276 Dong-dong), and meet the requirements for designation of a rearrangement plan for a housing redevelopment project zone.

According to the reasoning of the judgment of the court below and the judgment of the court of first instance partially accepted by the court below, the court below determined that the designation of this case was lawful on the basis of only the number of years elapsed after the completion of the building as prescribed by the Gyeonggi-do Improvement Ordinance, on the ground that the designation of this case was legitimate, on the other hand, on the ground that the designation of this case was legitimate, based on the evidence No. 11, the defendant's safety inspection conducted during the litigation of this case, which affected the structural safety or use of 164 units equivalent to 59.4% of the total 276 units as a building in need of reconstruction."

C. In light of the legal principles as to the criteria for determining old and inferior buildings as seen earlier, it shall not be determined solely on the basis of the number of years elapsed after the completion of the building. However, according to the Eul evidence No. 11 (the report on precise inspection of old and inferior structures; hereinafter “the report of precise inspection of this case”), a company specialized in safety diagnosis, EPCC group, as the time point of time on July 2008, the transfer of the designation of this case, investigated whether it constitutes old and inferior buildings, and determined 164 east among them as old and inferior buildings (the whole 276 dong building is about 59.4% old and inferior buildings as the basis of the total 276 dong building), and it can be seen that the report of precise inspection of this case was submitted as evidence, and that the result of examination of evidence was completed as to the buildings in question after completion of the examination of evidence as to the buildings in question as long as it was inevitable after completion of the examination of evidence.

Furthermore, according to the records, ① C&C group is a company registered as a specialized institution for safety diagnosis in Gyeonggi-do pursuant to Article 9 of the Special Act on the Safety Control of Public Structures around June 4, 2002; ② At the time of the investigation and data analysis for the preparation of the precision inspection report of this case, 12 professional structural engineer, construction engineer, and urban planning engineer participate; ③ the precision inspection report of this case was prepared six times from February 16, 2010 to February 23, 2010; ④ the inspection of structural safety of this case was prepared through data analysis on the residential environment safety inspection at the time of request of the Plaintiff; ④ The inspection report of this case was prepared through data analysis on the residential environment safety inspection at the time of request from February 17, 2010 to April 29, 201; ④ The inspection report of this case was prepared through the examination of housing reconstruction standards (Public Notice No. 164 of the Ministry of Construction and Transportation and Ministry of Land, Transport and Maritime Affairs No. 2009-30, etc. 208-4 of this case).

Therefore, as of the time of the designation disposition of this case, the rearrangement zone of this case is more than 10,00 square meters, and the number of buildings constituting old and inferior buildings is more than 50% of the total number of buildings in the area subject to the improvement plan for housing redevelopment project under Article 4 subparagraph 2 (a) of the Gyeonggi-do Improvement Ordinance. Thus, the designation of this case is legitimate since the designation of this case satisfies the requirements for designation of the area subject to the improvement plan for housing redevelopment project under Article 4 subparagraph 2 (a) of the Maintenance Ordinance of Gyeonggi-do. Therefore, the court below's determination that the designation of this case is legitimate is somewhat inappropriate, but it is just in its conclusion, contrary to what is alleged in the grounds of appeal, and there is no error

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party, including the portion arising from the participation in the appeal. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Sang-hoon (Presiding Justice)