The period of calculating the amount of compensation and statutes that form the basis for determining the requirements for and amount of compensation for housing relocation expenses to be paid to tenants of residential buildings 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 April 12, 2007, for the rearrangement projects for which the

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 ( April 12, 2007); 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)

Plaintiff 1 and eight others (Law Firm Jeong, Attorneys Park Jae-hwan et al., Counsel for the plaintiff-appellant)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Shin & Lee, Attorneys Park Sung-hoon et al., Counsel for plaintiff-appellant)

Seoul High Court Decision 2010Nu21398 decided February 16, 201

The part of the lower judgment against the Plaintiffs is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. A. The Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (hereinafter “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 who performs public works (hereinafter “project operator”) in the acquisition or use of land, etc. necessary for public works through consultation or expropriation. The Act applies to cases where a project operator acquires or uses land, goods and rights falling under any subparagraph of Article 3 (Article 3) and a project operator intends to expropriate or use land, etc. (Article 20), and the project operator shall obtain the approval of the project from the Minister of Land, Transport and Maritime Affairs as prescribed by Presidential Decree (Article 22), and if the Minister of Land, Transport and Maritime Affairs grants the approval of the project, he/she shall notify the project operator, landowner and person concerned of the purport thereof,

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).

B. Article 78 of the Public Works Act provides that a project operator shall either establish and implement relocation measures or pay resettlement funds, as prescribed by Presidential Decree, for persons who lose their base of livelihood by providing residential buildings due to the implementation of public works (hereinafter “persons subject to relocation measures”). For residents of residential buildings, the Minister of Land, Infrastructure and Transport shall calculate and compensate expenses incurred in moving their residence and expenses incurred in 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 their household members at the time of the public works project announcement under Article 4(3) or the public announcement under the relevant Acts and subordinate statutes for public works, etc.; however, tenants who have resided in the relevant zone for not less than three months shall be entitled to compensate for housing relocation expenses according to the number of their household members; however, the amended 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 (the amended Enforcement Rule”) provides that tenants shall be excluded from the amended Enforcement Rule of the Public Works Act (the amended Enforcement Rule shall be excluded from the scope of their housing relocation expenses, etc.

C. 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 Urban Improvement Act (hereinafter “public announcement of authorization for the implementation of a project”), it shall be deemed that there has been the project approval and public announcement under the Public Works Act, and thus the provisions of the Public Works Act shall apply mutatis mutandis pursuant to Article 3 of the Public Works Act as the acquisition of the legal status that can acquire or use the land, goods and rights. Therefore, with respect to the 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 is applied mutatis mutandis, and the compensation obligation shall be determined in accordance with the requirements

2. According to the reasoning of the lower judgment, the lower court acknowledged the facts as indicated in its reasoning based on the adopted evidence, and, on the premise that Article 54(2) of the amended Enforcement Rule does not apply to the Plaintiffs, the Plaintiffs did not recognize the housing relocation cost for Plaintiff 6 on the ground that they were tenants of an unauthorized building, and recognized only the housing relocation cost for three months for the rest of the Plaintiffs, as well as the amount calculated on the basis of the date of public inspection and announcement of the designation

In light of the above legal principles, in this case, where it can be known that the notice of authorization to implement the project of this case was made after April 12, 2007, the enforcement date of the amended Enforcement Rule, the court below should determine whether to compensate for the housing relocation expenses and the details thereof, and the amount of the housing relocation expenses should be calculated based on the time when the authorization to implement the project is publicly announced. Thus, the court below erred by misapprehending the legal principles on the application of Article 54(2) of the amended Enforcement Rule of the Act on the Improvement of Urban Areas and Dwelling Conditions, and the criteria for calculating the housing relocation expenses, which affected the conclusion of the

3. Therefore, the part of the lower judgment against the Plaintiffs is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)