207Guhap1966 The revocation of disposition excluding a person subject to relocation measures

A

Busan Urban Corporation

February 28, 2008

March 27, 2008

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On March 23, 2007, the defendant's disposition of exclusion from the person who is subject to the relocation measures for the Korean Industrial Complex Development Project (Development of Industrial Complex) against the plaintiff shall be revoked.

1. Details of the disposition;

The following facts can be acknowledged in full view of the following facts: there is no dispute between the parties; there is evidence of No. 1 to 3; evidence No. 5-1; and evidence No. 8-1.

A. The Plaintiff, as the owner of Gangseo-gu, Busan Metropolitan City, built a 1st floor sculpture building (hereinafter “instant building”) on the said land for the use of mushroom cultivation on the said land, and obtained approval for the use on April 8, 2002.

B. On October 25, 2006, the Defendant was designated as E zone due to the announcement of the Ministry of Finance and Economy on September 2, 2004, the development plan was amended to the F public notification of the Ministry of Finance and Economy on September 2, 2004, and the operator of the development project of the B zone (industrial complex creation) that was approved by G as of December 30, 2005, as the operator of the development project of the B zone (industrial complex creation) whose implementation plan was approved by G as of July 1, 2005 as the public notification of the Busan Urban Corporation as of July 1, 2005, and announced the compensation plan following the implementation of the project in this case as of October 25, 2006 as of the date of the announcement of the E zone as of October 30, 2003 and as the base date of the countermeasures for migration and living. The

A person shall be appointed.

C. When the instant building was incorporated into the said project district, on March 20, 2007, the Plaintiff filed an application for the selection of the Defendant as the subject of the relocation measures, asserting that it constitutes the criteria for selection of the said subjects of the relocation measures. Accordingly, the Defendant excluded the Plaintiff from the subject of the relocation measures on the ground that the Plaintiff falls under the “owner of a building constructed without obtaining permission or filing a report, which is excluded from the subject of the relocation measures pursuant to Article 40(3)1 of the Enforcement Decree of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (hereinafter “the Public Works Act”).

2. Whether the disposition is lawful;

A. The parties' assertion

The Defendant asserts that the instant building constitutes a building without permission or report, and that the instant disposition is legitimate in light of the Public Works Act and the Enforcement Decree thereof, and that the Plaintiff is the owner of Gangseo-gu Busan land and its neighboring land within the said B, and that the Plaintiff newly constructed a mushroom cultivation house in the said land and obtained approval for use on April 8, 2002, each of the above land was newly constructed and used as a restaurant, and that the instant building newly constructed for the use of the said house for the use of a mushroom cultivation house was used for the said purpose before the said base date. Thus, the instant building is merely a building for the use of the building without permission or report without permission, not a building without permission or report, but a building for the legitimate use of the building without permission. In light of the purport of the relocation measures system under the Public Works Act to guarantee the living of human beings by providing land, etc. necessary for the implementation of a public project, the Plaintiff asserts that the Plaintiff’s use of the building was unlawful even if the Plaintiff did not actually become a person subject to relocation measures, as the Plaintiff did not lose his residential status.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

However, the Public Works Act provides a project operator with a duty to establish relocation measures for those who lose their base of livelihood as a result of the implementation of a public project (Article 78(1)), but excludes the owners of buildings constructed without permission or reporting under the Enforcement Decree (hereinafter referred to as “unauthorized or non-reported buildings”) from those subject to relocation measures (Article 40(3)1). At the same time, the Enforcement Rule excludes the owners of buildings without permission as above from those subject to relocation measures, the compensation for housing relocation expenses and the compensation for residential buildings. In full view of these provisions, the Plaintiff recognized only the owners of buildings constructed without permission or reporting required by the Act as the owner of buildings for relocation measures, and the purport that the Plaintiff’s use of buildings without permission or reporting should be excluded from those subject to relocation measures without permission or reporting under the Public Health and Welfare Act, and thus, the Plaintiff’s use of the buildings without permission or reporting under the Public Health and Welfare Act as the owner of the buildings without permission or reporting under the Act should be excluded from the scope of the construction without permission or reporting under the Act.

Therefore, the disposition of this case, excluding the plaintiff from the person subject to the relocation measures, is legitimate.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

The effects of the presiding judge and judges;

Judges Park Jong-sung

Judges Park Gin-uri