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(영문) 대법원 2016.08.24 2016두37218

이주대책대상자제외처분취소

Text

The judgment below is reversed, and the case is remanded to Busan High Court.

Reasons

The grounds of appeal are examined.

1. Article 13(1) of the former Special Act on Designation and Management of Free Economic Zones (amended by Act No. 13837, Jan. 27, 2016) provides that “If necessary to implement a development project, the development project implementer may expropriate (including use; hereinafter the same shall apply) land, goods, or rights (hereinafter referred to as “land, etc.”) prescribed in Article 3 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects,” and Article 13(4) of the same Act provides that “Except as otherwise provided for in this Act, the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects shall apply mutatis mutandis to the expropriation of land, etc. under paragraph (1).”

In addition, Article 78(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Expropriation Act”) provides that “A project implementer shall either establish and implement relocation measures or pay resettlement funds as prescribed by the Presidential Decree for a person who would lose his/her base of livelihood due to the provision of residential buildings (hereinafter “person subject to relocation measures”) due to the implementation of public works.” Article 40(3)1 of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Presidential Decree No. 23425, Dec. 28, 2011) provides that “the owner of a building constructed without obtaining permission or filing a report for construction without obtaining permission or filing a report for construction.” Article 6 of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Presidential Decree No. 17854, Dec. 30, 202) shall be excluded from a person subject to relocation measures.