[이주대책대상자제외처분취소][공2009상,381]
[1] In a case where a building, which was not a residential building at the time of "the date of public notice under the relevant Acts and subordinate statutes for public works" under Article 40 (3) 2 of the Enforcement Decree of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, was later changed into a residential purpose, whether it is a residential building
[2] Whether the “date of public notice, etc. under the relevant Acts and subordinate statutes for public works” under Article 40(3)2 of the Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects includes the date of public inspection and announcement for residents (affirmative with qualification)
[3] The case holding that a building newly constructed for the management office of a military apartment and used for the management office even before the date of public inspection and public notice of the designation of the planned housing site development area does not constitute a residential building subject to relocation measures
[1] In full view of the language, content, legislative intent, etc. of Article 78(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, and Article 40(3)2 of the Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, a residential building subject to relocation measures as stipulated under Article 78(1) of the said Act refers to a residential building at the time of “the date when a public announcement, etc. is made under the relevant Acts and subordinate statutes for public works” under Article 40(3)2 of the said Enforcement Decree, which means a residential building at the time of the said “the date when a public announcement, etc. is made under the relevant Acts and subordinate statutes for public works.” Thus, in a case where a building, which was not a residential building at the said time,
[2] Article 40 (3) 2 of the Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, which is the base date for relocation measures, may include not only the date of public announcement of the project approval but also the date of public announcement of the project approval in a case where the relevant Act, which provides that the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects shall apply mutatis mutandis to the procedure for land expropriation, plans for public announcement of the project approval in addition to
[3] The case holding that a building newly constructed for the management office of a military apartment and used as a management office even before the date of public inspection and public announcement of the designation of the planned housing site development area does not constitute a residential building subject to relocation measures
[1] Article 78(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Article 40(3)2 of the Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works / [2] Article 40(3)2 of the Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works / [3] Article 78(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects; Article 40(3)2 of the Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc.
Plaintiff (Law Firm Blst, Attorneys Park Jin-jin et al., Counsel for the plaintiff-appellant)
Defendant (Seo Law Firm, Attorney Park Sang-chul, Counsel for the defendant-appellant)
Seoul High Court Decision 2006Nu10278 decided May 31, 2007
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
The grounds of appeal are examined (to the extent of supplement in case of any statement in the grounds of appeal not timely filed).
The gist of the Plaintiff’s grounds of appeal is that the instant building is a building subject to consultation or approval from the head of the competent Gu under Article 8 of the former Building Act (amended by Act No. 4381 of May 31, 1991) at the time of construction, and the Plaintiff is not a building without permission, and thus constitutes a person subject to relocation measures.
According to Article 78(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Public Works Act”), a project operator shall establish and implement relocation measures or pay resettlement funds to a person who is deprived of his/her base of livelihood due to the provision of a residential building due to the implementation of a public project (hereinafter “person subject to relocation measures”), as prescribed by the Enforcement Decree of the Public Works Act, for the purpose of a person who is deprived of his/her base of livelihood due to the provision of a residential building due to the implementation of a public project. In addition, Article 40(3)2 of the Enforcement Decree of the Public Works Act provides that the owner of a building who does not continue to reside in the relevant building from the date of public announcement,
In full view of the language, content, legislative intent, etc. of the above provisions, a residential building subject to relocation measures under Article 78(1) of the Public Works Act refers to a residential building whose purpose is at the time of the public announcement, etc. under relevant Acts and subordinate statutes for public works (hereinafter “the base date for relocation measures”) under Article 40(3)2 of the Enforcement Decree of the Public Works Act. Thus, if a building, which was not a residential building at that time, has been used as a residential purpose after the base date for relocation measures, has been changed to the purpose of use, it cannot be a residential building subject to relocation measures even if it was used as a residential building at the time of the decision of expropriation
On the other hand, the "date of public announcement, etc. under the relevant Acts and subordinate statutes for public works" under Article 40 (3) 2 of the Enforcement Decree of the Public Works Act, which is the base date for relocation measures, may include not only the date of public announcement of project approval, but also the date of public announcement of project approval, if the relevant Acts and subordinate statutes which provide that the Public Works Act shall apply mutatis mutandis to the procedures for expropriation of land are planned to apply mutatis mutandis, but also the date of public announcement of project approval as well as the date of public announcement of project approval. Thus, the criteria for relocation measures in this case shall be the base date for relocation measures under each of the provisions of Article 3-3 of the Housing Site Development Promotion Act (amended by Act No. 8384 of Apr. 207), Article 5 (1) and (2) of the Enforcement Decree of the Housing Site Development Promotion Act (amended by Presidential Decree No. 20722 of Feb. 29, 2008).
However, according to the facts established by the court below, the building of this case was newly constructed by the Ministry of National Defense for the purpose of using it as a lodging or office of the military family members of Songpa-gu Seoul Metropolitan Government (hereinafter omitted), and its preservation registration was completed as "one management office" due to the registration injury, and was used for the purpose of the management office as owned by the Ministry of National Defense even at the time of May 6, 2002, which is the base date for the relocation measures of this case. It can be known that the building of this case was remodeled for the residential purpose only after the registration of ownership transfer was completed for the non-party 1 and the non-party 3 on August 2, 2002, which is the base date for the relocation measures. Thus, the building of this case cannot be deemed as a residential building subject to the relocation measures.
Therefore, the plaintiff who acquired the building of this case which is not a residential building at the time of the base date for the relocation measures does not constitute a person subject to the relocation measures. The judgment of the court below is justified in its conclusion, since the disposition of this case which excluded the plaintiff from the person subject to the relocation measures is somewhat inappropriate in its reasoning.
Therefore, since the building of this case is a building permitted by the court below, the plaintiff's ground of appeal that there is an illegality due to the violation of the rules of evidence cannot be accepted, 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.
Justices Park Ill-sook (Presiding Justice)