[1] In a case where the owner of a building agrees to bear the duty of removal of a building subject to sale when acquiring an agreement under the former Act on Special Cases concerning the Acquisition of Land for Public Use and the Compensation for Loss, whether the duty of removal is subject to a vicarious execution under the Administrative Vicarious Execution Act (negative)

[2] Whether compulsory performance of the duty of removal stipulated in the Administrative Vicarious Execution Act may be realized by the owner of a building subject to an agreement upon acquisition of consultation under the former Act on Special Cases concerning the Acquisition of Land for Public Use and Compensation for Loss (negative)

[1] The alternative duty to act under the Administrative Vicarious Execution Act, which is the object of vicarious execution, shall be the public law duty. The acquisition of land, etc. under the former Act on Special Cases Concerning the Acquisition of Land, etc. for Public Works and the Compensation Therefor (repealed by Article 2 of the Addenda to the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, Act No. 6656 of Feb. 4, 2002) is the acquisition of land, etc. necessary for the public project through consultation with its owner, and the public institution has the substance of a private trade or private contract under the private law. Thus, even if the owner of the building agreed to the effect that he will bear the duty to remove the building, such duty to remove cannot be the public law duty, and even in this case, the above duty to remove is not the object of vicarious execution under the Administrative Vicarious Execution Act, unless there

[2] In case of acquisition through consultation under the former Act on Special Cases Concerning the Acquisition of Land for Public Works and the Compensation therefor (repealed by Article 2 of the Addenda to the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, Act No. 6656 of Feb. 4, 2002), the owner of the building does not have the public law obligation to remove the building subject to the acquisition through consultation, and it does not fall under the " obligation under this Act or any disposition under this Act" subject to the Administrative Vicarious Execution Act as stipulated under Article 89 of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, and thus the compulsory performance of the above removal obligation

[1] Article 1 (see current Article 1 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, Act No. 6656 of Feb. 4, 2002) of the former Act on Special Cases Concerning the Acquisition of Land, etc. for Public Works Projects and the Compensation therefor (repealed by Article 2 of the Addenda to the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, Act No. 6656 of Feb. 4, 2002), Article 89 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, and Article 3 of the Addenda to the Act on Special Cases Concerning Acquisition of Land, etc. for Public Works Projects / [2] Article 1 (see current Article 1 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, Act No. 6656 of Feb. 4, 2002), Article 89 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, and Article 3 of the Addenda (2

[1] Supreme Court Decision 96Da3319 delivered on April 26, 1996 (Gong1996Sang, 1716), Supreme Court Decision 96Da3051 delivered on December 23, 1996, Supreme Court Decision 95Da48056 delivered on April 22, 1997 (Gong1997Sang, 1534 delivered on May 222, 1998), Supreme Court Decision 98Da2242, 2259 delivered on May 22, 199 (Gong198Ha, 1716)

Plaintiff

The Korea Rail Network Authority (Attorney Cho Chang-soo et al., Counsel for the defendant)

Busan High Court Decision 2005Nu3226 delivered on April 7, 2006

The judgment below is reversed, and the case is remanded to Busan High Court.

We examine the grounds of appeal.

1. According to the reasoning of the lower judgment, the lower court: (a) held 4 units of housing registered in the general building ledger (hereinafter referred to as “instant housing”) within 154-46 square meters prior to the subdivision of the said Act; (b) decided that the Plaintiff’s act of removing the instant housing units under the former Act and its subordinate statutes, including the two units of housing units registered on the said land, was lawful; and (c) decided that the Plaintiff’s act of removing the housing units under the said Act and its subordinate statutes, including the two units of housing units under the former Act, was to be incorporated into the housing units for the purpose of removing the housing units within 136 square meters before subdivision; and (d) the Plaintiff’s act of removing the housing units under the said Act and its subordinate statutes, including the two units of housing units under the former Act and the one unit of land for the purpose of removing the housing units under the said Act, which was not within 154-50 square meters before subdivision; and (e) the Plaintiff’s act of removing the housing units under the Act, including the two units of land.

2. However, it is difficult to accept the above determination by the court below for the following reasons.

The alternative duty to act under the Administrative Vicarious Execution Act, which is the object of vicarious execution, shall be the public law duty. The acquisition of land, etc. under the former Public Special Act by consultation with its owner is the acquisition of land, etc. necessary for a public project through consultation with its owner, and the public institution has the substance of private trade or private contract (see Supreme Court Decision 98Da2242, 2259, May 22, 1998, etc.). Thus, even if the owner of the building agreed to the effect that he would bear the duty to remove the building subject to sale at the time of acquisition by consultation, such duty to remove cannot be the public law duty, and even in this case, the above removal duty is not the object of vicarious execution under the Administrative Vicarious Execution Act, unless there is a separate provision that permits vicarious execution by applying mutatis mutandis the Administrative Vicarious Execution Act.

In addition, the provisions of the Administrative Vicarious Execution Act can be applied to the acquisition through consultation under Article 3 of the Addenda of the former Public Works Act if the requirements under Article 89 of the Public Works Act are met. However, Article 89 of the Public Works Act only provides that "if a person who is obligated to perform his/her duty due to a disposition under this Act or this Act fails to perform his/her duty, the project operator may apply for vicarious execution under the conditions as prescribed by the Administrative Vicarious Execution Act to the administrative agency." On the other hand, there is no provision on the duty of removal of the building owner in the acquisition through consultation under the former Public Special Works Act, and there is no provision that the administrative agency may order removal to the building owner.

Examining the record in light of the above legal principles and relevant provisions, the obligation of the Plaintiff to remove the contract at the time of acquiring the agreement in this case under the former Special Act between the Plaintiff and Ulsan-si is not a public law obligation, and it does not fall under the “ obligation due to this Act or any disposition under this Act” which is the object of the Administrative Vicarious Execution Act under Article 89 of the Public Works Act. Therefore, the compulsory performance of the Plaintiff’s above removal obligation cannot be realized by a vicarious execution under the Administrative Vicarious Execution Act.

Nevertheless, the court below determined that the plaintiff's obligation to remove the housing of this case is subject to vicarious execution under Article 89 of the Public Works Act, and that the disposition of dismissal for vicarious execution of this case is lawful. It erred by misapprehending the legal principles on vicarious execution of administrative execution under Article 89 of the Public Works Act, which affected the conclusion of the judgment.

The ground of appeal containing the purport of pointing this out is with merit.

3. Therefore, without examining the remaining grounds of appeal, we reverse the judgment of the court below and remand the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Si-hwan (Presiding Justice)