[1] Persons eligible for compensation for director expenses under Article 78(5) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[2] After the enforcement of the Enforcement Rule of the Act on the Acquisition of and Compensation for Land, etc. for Public Works Projects amended by Ordinance of the Ministry of Construction and Transportation No. 556 of Apr. 12, 2007, the period of calculating the amount of compensation under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents and the Act on the Acquisition of and Compensation for Land, etc. for Public Works

[1] In light of the purport of Article 78(5) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, Article 55(2) of the Enforcement Rule of the same Act, and Article 55(2) of the same Act, as well as the purpose of the director cost system to facilitate the promotion of public works, and protect residents who move their residence (referring to expenses necessary for transporting movable property, such as household effects, etc.), it is reasonable to regard the subject of the director’s compensation as “resident of a residential building incorporated into a zone where public works are performed and

[2] Relocation expenses to be paid to tenants of residential buildings relocating due to the implementation of public works are deemed liable for payment following the application and application of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Public Works Projects Act”) and the Enforcement Rule thereof. When there is a public announcement of project implementation authorization under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785, Dec. 21, 2007) (hereinafter “public announcement of project implementation authorization”), it shall be deemed that there has been project approval and public announcement under the Public Works Projects Act, and it shall obtain the legal status to acquire or use land, goods, and rights. Thus, the provisions of the Public Works Projects Act shall apply mutatis mutandis under Article 3 of the Public Works Act. Thus, with respect to the relocation expenses to tenants of public works after the enforcement of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “amended Enforcement Rule”), the project implementation authorization requirements and the compensation amount shall be determined based on the Enforcement Rule at the time of the project implementation authorization.

[1] Article 78(5) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects; Article 5(2) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects / [2] Article 78 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects; Article 54(2) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects; Article 4 of the Addenda (amended by Act No. 556 of Apr. 12, 2007); Article 54(2) of the former Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects; Article 40 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785 of Dec. 21, 2007)

[1] Supreme Court Decision 2010Du5332 Decided November 11, 2010 (Gong2010Ha, 2274)

Plaintiff 1 and five others

As shown in the attached Form (Attorneys Lee Young-chul et al., Counsel for the plaintiff-appellant)

Jeon-si District Housing Redevelopment and Improvement Project Association (Attorney Yoon Young-young et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Nu46113 decided September 2, 2011

The part of the judgment of the court below concerning the claim of the plaintiff 1, 2, 3, 4, 5, and 6's director expenses is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeals of the plaintiff 1, 2, 3, 4, 5, and 6 and the defendant's appeal are all dismissed. The costs of appeal by the defendant

1. The grounds of appeal Nos. 1, 2, 3, 4, 5, and 6 are examined (to the extent of supplement in case of any statement in the grounds of appeal not timely filed).

A. As to the claim for relocation expenses

It is reasonable to view that the compensation for the housing relocation expenses for the tenants of residential buildings under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents is subject to the persons who have resided in the relevant improvement zone for not less than three months as of the date of public announcement of the public inspection and announcement of the improvement plan (see Supreme Court Decision 2009Du16824, Sept. 9, 2010).

Examining the reasoning of the judgment below in light of the above legal principles and records, it is just that the court below rejected the above plaintiffs' claim for the payment of housing relocation expenses on the grounds that it is difficult to recognize the plaintiff 1, 2, 3, 4, 5, and 6 as the true tenant who resided in the redevelopment improvement zone in the improvement zone in this case for more than three months prior to the date of public inspection for the residents' public inspection. There is no error in the misapprehension of the rules of evidence, the incomplete hearing, or the misapprehension of the legal principles as to the exercise of the right to ask for

B. As to the claim for director expenses

In light of the purport of Article 78(5) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (hereinafter “Public Works Act”), Article 55(2) of the Enforcement Rule of the same Act, and the director expenses (referring to expenses necessary for the transportation of movable property, such as household effects, etc.) to facilitate the implementation of public works, and to protect residents who move their residence, it is reasonable to deem that a person eligible for compensation for director expenses is a resident of a residential building incorporated into a zone where public works are performed, who is relocated due to the implementation of public works (see, e.g., Supreme Court Decision 2010Du5332, Nov. 11, 2010).

According to the reasoning of the judgment below, the court below rejected not only the above plaintiffs' claim for relocation of residence but also the claim for relocation of director, on the ground that it is difficult to recognize that the plaintiff 1, 2, 3, 4, 5, and 6 had resided in the redevelopment improvement zone in the improvement zone in this case for more than three months before the date of public inspection for inspection by the residents.

However, in light of the above legal principles, the court below rejected the claim for the payment of the director's expenses on the ground that the above plaintiffs failed to meet the above requirements for the claim for the payment of the relocation expenses. Thus, the court below erred by misapprehending the legal principles on the requirements for the claim for the payment of the director's expenses under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents.

2. As to the Defendant’s ground of appeal

A. (1) The Public Works Act is an Act aimed at promoting the enhancement of public welfare and the appropriate protection of property rights through the efficient implementation of public works by prescribing matters concerning compensation for any loss incurred by a person executing public works (hereinafter “project operator”) in the acquisition or use of land, etc. necessary for the public works through consultation or expropriation. The Act is applicable to cases where a project operator acquires or uses land, goods, or rights falling under any subparagraph of Article 3 (Article 3) and the project operator intends to expropriate or use the land, etc., the project operator shall obtain the project approval from the Minister of Land, Transport and Maritime Affairs (Article 20), as prescribed by Presidential Decree (Article 20), and if the project approval has been granted, the Minister of Land, Transport and Maritime Affairs shall notify the project operator, landowner, and person concerned of the purport

In addition, Article 40 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785, Dec. 21, 2007; hereinafter “former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”) provides that the Public Works Act shall apply mutatis mutandis to the expropriation or use of the ownership and other rights of the land or buildings for the implementation of a rearrangement project in an improvement zone except as otherwise provided in this Act (paragraph (1)), and the public notice of the project implementation authorization (referring to the public notice of the project implementation plan where the head of a Si/Gun directly implements a rearrangement project) is given at the time of application mutatis mutandis (Article 2).

(2) Article 78 of the Public Works Act provides that a project operator shall either establish and implement relocation measures or pay resettlement funds to persons who lose their base of livelihood due to the implementation of public works (hereinafter “persons subject to relocation measures”), as prescribed by Presidential Decree, for those who are to be deprived of their base of livelihood due to the provision of residential buildings due to the implementation of public works, and that residents of residential buildings shall calculate and compensate expenses incurred in moving their residence and for transporting movable property, such as household tools.

Article 54(2) of the former Enforcement Rule of the Public Works Act (amended by Ordinance of the Ministry of Construction and Transportation No. 556, Apr. 12, 2007; hereinafter “former Enforcement Rule”) provides that tenants of residential buildings who move to due to the implementation of public works shall be compensated for three months or longer according to the number of members of the relevant public works area at the time of the public works project approval, etc. under Article 4(3) or the public announcement, etc. under the relevant Acts and subordinate statutes for public works; however, tenants who have moved to an unauthorized building, etc. under Article 24 were excluded from compensation. However, Article 54(2) of the former Enforcement Rule of the Public Works Act (amended by Ordinance of the Ministry of Construction and Transportation No. 556, Apr. 12, 2007; hereinafter “former Enforcement Rule”) provides that the amended Enforcement Rule of the Public Works Act, unlike the number of members of the same household, shall be excluded from compensation for relocation of housing facilities within the scope of one year or more pursuant to the amended Enforcement Rule.

(3) In full view of the above provisions, relocation expenses paid to tenants of residential buildings relocating due to the implementation of public works are recognized as liable for payment in accordance with the application and application of the Public Works Act and the Enforcement Rule thereof, and when there is a public announcement of authorization for the implementation of a rearrangement project under the former Act (hereinafter “public announcement of authorization for the implementation of a project”), it is deemed that there has been the approval and public announcement of the project under the Public Works Act and that there has been the legal status to acquire or use the land, goods, and rights under Article 3 of the Public Works Act, so the provisions of the Public Works Act shall apply mutatis mutandis pursuant to Article 3 of the Public Works Act. Therefore, with respect to relocation expenses paid to tenants for a rearrangement project for which the public announcement of authorization for the implementation of the project is made after the enforcement of the amended Enforcement Rule, unless there are any special circumstances, the amended Enforcement Rule at the time of the public announcement of authorization for the implementation of the project, and the compensation obligation is determined in accordance with the requirements

B. According to the reasoning of the lower judgment, the lower court acknowledged the facts as indicated in its reasoning after comprehensively taking account of the adopted evidence, and acknowledged the cost of moving housing for four months calculated on the basis of the date of public announcement of project implementation authorization for the remainder of Plaintiffs 1, 2, 3, 4, 5, and 6, on the ground that the public announcement and notification of a legitimate compensation plan related to the implementation of the instant project was made after April 12, 2007, the enforcement date of the amended Enforcement Rule.

In light of the above legal principles and records, although the reasoning of the court below is partially inappropriate, the amended Enforcement Rule applies to the compensation for housing relocation expenses due to the implementation of the project in this case, and its amount is calculated based on the date of public announcement of project implementation authorization is justifiable. In so doing, the court below did not err by misapprehending the legal principles on the nature of the right to claim housing relocation expenses and the requirements for occurrence, the public announcement of the compensation plan for tenants under the Public Works Act, and the prohibition of retroactive legislation, as otherwise

3. Conclusion

Therefore, the part of the judgment of the court below regarding the claim of the plaintiff 1, 2, 3, 4, 5, and 6 for directors' expenses is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeals by the above plaintiffs and the defendant are dismissed, and the costs of appeal by the defendant are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices

[Attachment] Plaintiff-Appellee List: omitted

Justices Kim Yong-deok (Presiding Justice)