[2] Whether a public project operator may exclude a person subject to relocation measures as stipulated by the Act by establishing a specific relocation measures and establishing additional requirements other than those stipulated by the Act (negative)

1. Article 78(1) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (hereinafter “Public Works Act”) provides that “A project operator shall establish and implement relocation measures or pay resettlement funds, as prescribed by Presidential Decree, for persons who lose their base of livelihood due to the implementation of public works (hereinafter “persons subject to relocation measures”), and upon delegation, the former Enforcement Decree of the Public Works Act (amended by Presidential Decree No. 2454, May 28, 2013; hereinafter “Enforcement Decree of the Public Works Act”) provides that the specific scope of a person subject to relocation measures shall be defined by the methods stipulated in each subparagraph under Article 40(3) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, and the main sentence of subparagraph 2 provides that the owner of a building constructed without obtaining permission or filing a report, and the owner of the building shall be excluded from the relocation measures from the date of announcement, etc. under the relevant Acts and subordinate statutes for public works to the date of conclusion of the contract or the date of expropriation.

In addition, Article 6 of the Addenda to the Enforcement Decree of the Public Works Act (amended by Presidential Decree No. 6 of Dec. 30, 202) provides that "the owner of a building constructed without obtaining permission or filing a report on Jan. 24, 1989 shall be included in a person subject to relocation measures, notwithstanding Article 40 (3) 1." In light of the language and background of the above Addenda provision, the developments leading up to the introduction, the purport and structure of Article 40 (3) of the Enforcement Decree of the Public Works Act stipulating a person exempt from relocation measures, the above Addenda provision should be interpreted to exclude the application of subparagraph 1 among the requirements for exemption from relocation measures under each subparagraph of Article 40 (3) of the Enforcement Decree of the Public Works Act to the owner of a building constructed at the time of January 24, 1989 (see Article 6 of the Addenda) and Article 40 (3) 2 of the Enforcement Decree of the Public Works Act to the extent that the owner of the building can not be included in the scope of ownership or right to disposal of the building (see Article 26).

On the other hand, it is not allowed that the defendant's establishment of specific measures for relocation is against Article 78 (1) of the Public Works Act, which is a mandatory provision, and each subparagraph of Article 40 (3) of the Enforcement Decree of the Public Works Act.

2. The lower court found that: (a) on December 6, 2005, the Plaintiff owned a building 76.80 square meters of an unauthorized building constructed on the ground located in Guro-gu Seoul ( Address omitted) located in the said development project zone from before the date the expropriation was decided; and (b) on January 24, 1989, the said unauthorized building was constructed on or before January 24, 1989; and (c) on the ground that the Defendant’s additional requirement of “non-resident in a house in the area where the power generation source is a person subject to the relocation measures” as the eligible requirement of the person subject to the relocation measures, the lower court determined that the instant non-resident notification was unlawful, which excluded the Plaintiff from the person subject to the relocation measures as of December 6, 2005, which is the base date for the relocation measures.

Examining the reasoning of the judgment below in light of the relevant statutes and the aforementioned legal principles, the above determination by the court below is just, and there is no error in the misapprehension of legal principles as to the interpretation of Article 6 of the Addenda to the Enforcement Decree of the Public Works Act and Article 40(3)1 and 2 of the Public Works Act

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)