Plaintiff (Law Firm LLC, Attorneys Jeong Jeong-hee et al., Counsel for the plaintiff-appellant)

The 12th House Development and Improvement Project Association (Attorney Kim Jong-ho, Counsel for the plaintiff-appellant)

June 18, 2009

1. The defendant shall pay to the plaintiff 6,265,749 won with 5% interest per annum from March 31, 2009 to July 9, 2009, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 30% is borne by the Plaintiff, and 70% is borne by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 8,660,99 won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. On August 12, 2005, the head of Gangseo-gu Seoul Metropolitan Government (hereinafter “the head of Gangseo-gu”) made a public announcement of the designation of a housing redevelopment improvement zone (draft 12) in Zone 12, which is designated as a housing redevelopment improvement zone with the size of 1265-42 square meters and 70,808 square meters designated as a children of Gangseo-gu Seoul Metropolitan Government.

B. On November 10, 2005, the Mayor of Gangseo-gu Seoul Metropolitan Government (hereinafter “instant improvement zone”) designated a housing redevelopment project zone of 1265-42 Japan-69,161.7 square meters (hereinafter “instant improvement zone”).

C. On May 19, 2006, the head of Gangnambuk-gu authorized the implementation of the project to implement the housing redevelopment improvement project in the rearrangement zone of this case by designating the defendant as the project implementer and publicly notified the implementation of the project.

[Grounds for recognition] Gap evidence No. 1, the fact-finding results to the North Korean head of Gangnam-gu, the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

(1) The plaintiff's assertion

From June 2005, the Plaintiff leased 01 U.S. children (B) located in the instant project zone from around 00 to around July 26, 2006, and resided with the Nonparty. However, the tenant who resided in the instant improvement zone for at least three months as of May 19, 2006, which was the date of the public announcement of the authorization for the implementation of the project, falls under the beneficiary of relocation expenses and relocation expenses and relocation expenses under Articles 55(2) and 55(2) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works (hereinafter “Public Works Act”), and thus, the Defendant is obligated to pay the Plaintiff the amount of KRW 8,60,99 and delay damages for the relocation expenses and director expenses of 4 months.

(2) The defendant's assertion

(A) In the case of a housing redevelopment project under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”), the term “person who has resided in the relevant area for more than three months at the time of the public works project notification or the public works under the relevant Acts and subordinate statutes at the time of the public works project notification” under Articles 78(5) and 54(2) of the Enforcement Rule of the Public Works Act refers to a person who has resided in the relevant improvement area for more than three months at the time of the public works announcement for the designation of the improvement area. The Plaintiff is not a person who has resided in the instant housing area for more than three months as of August 12, 2005, which is the date of the public works announcement, and even as of the date of the public works announcement of the authorization of the project implementation of this case, the Plaintiff cannot be deemed as a person who has moved to the outside of the rearrangement area of this case after five months after the date of the project execution authorization, and thus, cannot be

(B) 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 referred to as the “former Rule”) that stipulates that even if the Plaintiff is a person eligible for the payment of housing relocation expenses, the said person shall be subject to the application of Article 54(2) of the former Rules.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) As to the payment date, etc. of housing relocation expenses for the tenants in housing redevelopment projects under the Urban Improvement Act

(A) In full view of the provisions of Article 40(1) and (2) of the Urban Improvement Act, Article 78(5) and (7) of the Public Works Act, and Article 54(2) and (3) of the Enforcement Rule of the Public Works Act, the project implementer is obliged to compensate for the moving-in expenses according to the number of household members for the tenants of residential buildings that come to move due to the implementation of the housing redevelopment project, who have resided in the relevant rearrangement project area for more than three months at the time of the public announcement of the project approval or the public announcement under the relevant Acts and subordinate statutes for

A tenant is a related person who has a right by lease, etc. with respect to land to be acquired or used by a project implementer, and the tenant's right to claim compensation for relocation expenses is naturally a right under public law (see Supreme Court Decision 2007Da8129, May 29, 2008) where the requirements prescribed in the main sentence of Article 54(2) of the Enforcement Rule of the Public Works Act are met (see Supreme Court Decision 2007Da8129, May 29, 2008).

(B) Article 54(2) of the Enforcement Rule of the Public Works Act provides that “the date of the public announcement of the project approval or the date of the public announcement under the relevant Acts and subordinate statutes for public works” is only the date of the public announcement of the project approval, etc., barring any special circumstance, it shall be interpreted that “the date of the public announcement of the project approval” or “the time of the public announcement, etc. under the relevant Acts and subordinate statutes for public works” includes both “the time of the public announcement, etc. under the relevant Acts and subordinate statutes for public works.” On the contrary, it shall be excluded from the “public announcement of the project approval” prescribed in the said provision, and it shall be interpreted that only the “the date of public announcement for the designation of the

(C) The precedent held that a tenant of a residential building that has been relocated due to the implementation of a public project and who has resided in the relevant public project zone for more than three months at the time of the payment date of the cost of moving a house shall be entitled to acquire the cost of moving a house immediately on the payment date without requiring the tenant to continue his/her residence until the date of notification of the calculation of the cost of moving a house or the date of commencement of expropriation (see Supreme Court Decision 2006Du2435, Apr. 27, 2006). Therefore, the payment date of moving a house shall be limited to the "date of public inspection for designation of the improvement zone" and the tenant's right to claim the cost of moving a house shall result in acquiring the cost of moving a house even if the tenant

However, in the case of a housing redevelopment project, the public inspection and public announcement for the designation of a rearrangement zone and the public announcement and announcement of a rearrangement zone are required to implement the housing redevelopment project (Article 16(1) and Article 28(1) of the Urban Improvement Act), but the project implementer shall obtain the right to expropriate only on the premise of the effective project implementation authorization and obtain the status to commence the construction. From the public announcement date of the public announcement of the improvement zone to the date the implementation plan for the housing redevelopment project is specifically determined, the public announcement for the designation of a rearrangement zone is merely the public announcement for the designation of a rearrangement zone, and it is difficult to see that the improvement zone is determined solely by the public announcement for the designation of a rearrangement zone after the public announcement of the designation of a rearrangement zone. Although the designation and announcement of a rearrangement zone is meaningful, it is not possible to establish a new building that is not suitable for the contents of the rearrangement zone from the time of the determination of the location and size of the rearrangement zone, but it is not sufficient to restrict the use of the building in the existing improvement zone immediately after the implementation date of the public announcement.

Furthermore, Articles 13 and 16 of the Urban Improvement Act stipulate that a redevelopment and consolidation project association can be established after the designation announcement of a rearrangement zone can be made through the composition of a promotion committee. Thus, if the redevelopment and consolidation project association, which is the project implementer, has not been established at the time of the public inspection announcement for the designation of a rearrangement zone, and the right to claim compensation for the housing relocation cost on the above basic date is interpreted as having not been established at the time of the public announcement for the designation of a rearrangement zone, the other party

(D) If a housing redevelopment project intends to limit the criteria for the payment of housing relocation expenses to the public announcement date of the rearrangement zone, the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents should be explicitly stipulated separately. Article 32(1)1 of the Seoul Special Metropolitan City Ordinance on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents is one of the requirements for the supply of rental housing for the housing redevelopment project, and Article 32(1)1 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents as one of the requirements for the supply of rental housing for the housing redevelopment project, and it is difficult to accept without such express provision to limit the payment date of housing relocation expenses to the public announcement date of the initial announcement date of the project.

(E) In addition, if a theory of interpretation that limits the payment date of housing tenants' housing relocation expenses to "the date of public inspection and public announcement for the designation of a rearrangement zone", there is room for the first legislative intent to promote social security for tenants and encourage early relocation and facilitate the promotion of the project, and furthermore, in comparison with the fact that the commercial tenants who operated their business prior to the public announcement date of the project approval, would be compensated for business (Article 45 of the Enforcement Rule of the Public Works Act), or that the housing owners to be incorporated in the implementation zone of public works would be paid housing relocation expenses without limiting the period of residence (Article 54(1) of the Enforcement Rule of the Public Works Act).

(F) In the above Decision 2006Du2435 decided on the legal nature of the relocation cost, without mentioning the date of the public notice of the implementation plan corresponding to the date of the public notice of the public notice of the public notice of the approval of the implementation plan, the court affirmed the court below's measure that held that the tenant who had resided for more than three months as of the date of the public notice of the approval of the implementation plan as of the date of the public notice of the public notice of the approval of the implementation plan was entitled to the right to claim the relocation cost and the right to claim the relocation

(G) In full view of the legal nature and legislative intent of the relocation cost as seen above, the meaning of the language of the pertinent provision, the progress process of the redevelopment project, and the time of establishment of the redevelopment project association, etc., in the case of a housing redevelopment project, a housing tenant who has resided in the relevant rearrangement zone for not less than 3 months at the time of the project implementation authorization public notice shall obtain the right to claim compensation for the relocation cost to the redevelopment project association on the date of public notice of project implementation authorization and shall not be required to continue residing

(2) As to the Enforcement Rule of the Public Works Act, which is the basis for the payment of housing relocation expenses of the instant case

(A) The amendment process of Article 54(2) of the Enforcement Rule of the Public Works Act

Article 54(2) of the former Enforcement Rule of the Public Works Act provides that persons eligible for housing relocation expenses shall be compensated for three-months, but the same shall not apply to tenants who have received housing relocation rights pursuant to other Acts and subordinate statutes (hereinafter “former Rule provision”). According to the foregoing provision, the housing relocation expenses shall be compensated for three-months, but the tenants who have received rental housing occupancy rights are excluded from those eligible for housing relocation expenses, so in the case of tenants who meet both the right to claim compensation for housing relocation expenses and the right to claim compensation for rental housing relocation expenses, one of the right to claim compensation for housing relocation expenses and the right to use rental housing relocation expenses,

However, Article 54(2) of the Enforcement Rule of the former Public Works Act (amended by Ordinance No. 556, Apr. 12, 2007; Ordinance No. 556, Apr. 12, 2007; adjusted the cost of housing relocation for the person eligible for the payment of the cost of housing relocation to April 3 to April; and deleted the proviso that excludes the tenants who have received the right to occupy the rental housing pursuant to other statutes (hereinafter “new provision”). According to the foregoing provision, in the case of tenants who meet all the right to claim compensation for the cost of housing relocation and the right to occupy the rental housing, they are entitled to receive compensation for the cost

(b) The time of acquisition of the right to demand compensation for the cost of moving a house and the time of determining the person to be supplied.

As seen earlier, the precedents take the position that the tenant who is eligible for the cost of moving a house shall continue to reside before the date of notification of the calculation of the cost of moving a house or the date of public notification of the project approval, which is the date of the payment of the cost of moving a house, without requiring the tenant to reside (see Supreme Court Decision 2006Du2435 delivered on April 27, 2006).

Meanwhile, Article 13(7) of the Enforcement Rule of the Seoul Special Metropolitan City Ordinance on Urban and Residential Environment Improvement (hereinafter “Enforcement Rule of the Urban and Residential Environment Improvement Ordinance”) provides that a person eligible for the supply of rental housing shall be determined by the project implementation authorization under Article 28 of the Urban and Residential Environment Improvement Act, and for this purpose, the project implementer shall attach a list of rental housing suppliers along with the project implementation plan that includes a tenant’s housing measures and a rental housing construction plan (Article 30 subparag. 4 and 5 of the Urban and Residential Environment Improvement Act, Article 18(1) of the Urban and Residential Environment Improvement Ordinance), and Article 13(7) of the Enforcement Rule of the Urban and Residential Environment Improvement Ordinance (Article 13(3) of the Enforcement Rule of the Urban Improvement Ordinance).

Therefore, in full view of the above relevant laws and the legislative intent thereof, it is reasonable to view that in a housing redevelopment project under the Urban Improvement Act, the legal relationship as to whether the right to claim compensation for housing relocation expenses or whether the right to occupy rental housing is a person eligible for the right to occupy rental housing has been determined

(C) Rules applicable to the instant case

According to the above legal principles and the facts acknowledged as seen earlier, as the legal relationship with the right to claim compensation for housing relocation expenses of this case had been established at the time of May 19, 2006, May 19, 2006, the authorization date for the implementation of the project of this case, the new rule provision, which was enforced on April 12, 2007, is deemed as not likely to be applied retroactively to this case. Thus, in calculating the housing relocation expenses of this case, the provisions of the former rule

Meanwhile, Article 1 of the Enforcement Rule of the Public Works Act (amended by Ordinance of the Ministry of Construction and Transportation No. 556 of Apr. 12, 2007) provides that Article 1 of the amended Rule shall enter into force from April 12, 2007, the date of promulgation, and Article 4 provides that "The amended Rule of Article 54 (2), etc. shall apply from the date of enforcement of this Rule to the date of notification of a compensation plan pursuant to Article 15 (including the cases where it applies mutatis mutandis pursuant to Article 26 (1) of the Act) of the Act after the enforcement of this Rule and the notification of a compensation plan to landowners and persons concerned shall apply to the case where the facts or legal relations related to the right to claim compensation for housing relocation expenses have not yet become final and conclusive at the time of enforcement of the new Rule. In light of the constitutional principle that does not permit the legislation of a lawsuit seeking compensation, even if the public notification and notification were made after the enforcement of the new Rule, the new rule or new rule cannot be interpreted retroactively to the legal relations.

(3) The plaintiff

(A) Obligation to pay moving expenses and moving expenses

Comprehensively taking account of the purport of Gap evidence Nos. 3-1 through 4’s written arguments, the plaintiff leased Nos. 01 (B) 01 (area 32.31 square meters; hereinafter “the instant house”) located within the instant rearrangement zone from August 1, 2005 to his/her tenant, and resided together with his/her son’s son as the non-party, and relocated to his/her son (hereinafter “2 omitted) outside of the instant rearrangement zone.

In light of the above legal principles, as of May 19, 2006, the date of the public announcement of the project implementation authorization of this case, the Plaintiff resided in the instant housing located within the rearrangement zone for at least three months, and even if the Plaintiff relocated to the rearrangement zone of this case after moving to the outside of the rearrangement zone of this case, the Plaintiff still constitutes the person eligible for relocation expenses and relocation expenses.

Furthermore, the instant project implementation authorization was publicly announced on May 19, 2006, before April 12, 2007, the enforcement date of the new rule provisions, and accordingly, the Defendant is obligated to pay the Plaintiff the housing relocation expenses and the director expenses for two-person households pursuant to the old rule provisions.

(b) The amount of the cost of moving residence and the director’s

According to Articles 54(2), 54(3), and 55(2) and attached Table 4 of the former Rule, the relocation expenses for the three-month dwelling of two-person households shall be 5,960,130 won [=1,986,710 won (the monthly average household expenditure expenses for two workers in February 19, 2006, which falls under May 19, 2006, which is the authorization date for the implementation of the project in question)]. The relocation expenses for the three-month dwelling of two-person households shall be 305,619 won [the monthly average household expenditure expenses for two workers in February 4, 2006, which falls under 33 square meters]. The relocation expenses for the three-month dwelling of the two-person households shall be 305,619 won [the wage = the wage for one person who is ordinary in the construction sector for the first half of May 19, 2006 + the freight rate of less than 10,000 won (one-one-one-one-one-one-one-one-one-one-hour freight freight freight freight];

(4) The theory of lawsuit

The defendant is obligated to pay to the plaintiff 6,265,749 won in total of residential relocation expenses and director expenses, and to pay 5% per annum from March 31, 2009 to July 9, 2009, which is the day following the delivery date of a copy of the complaint of this case, and 20% per annum from the next day to the day of full payment under the Civil Act.

3. Conclusion

Therefore, the plaintiff's claim is accepted within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Judges Han-soo (Presiding Judge)