Whether the obligation to remove obstacles, such as the goods of the inmate under Article 63 of the Land Expropriation Act, includes the duty to remove such obstacles (negative)

Article 63 of the Land Expropriation Act provides that "any landowner or person concerned, or any person who has a right to the land to be expropriated or used or any goods on such land shall deliver or transfer the land or goods to the public project operator by the time of expropriation or use", which states that the person subject to expropriation has a duty to deliver the land, etc. to the public project operator, but it is not recognized that the above provision stipulates that the person subject to expropriation has a duty to hand over the land, etc. to the public

Article 63 of the Land Expropriation Act, Article 3 of the Administrative Vicarious Execution Act

Park Chang-gu

Changwon Market

1. As of April 16, 1999, the defendant's disposition of notification under subparagraph 55 (as to the above ground items 296 ground items in Changwon-si, Changwon-si, Changwon-si), and subparagraph 98 (as to the ground items 8-3 ground items in Changwon-si, Changwon-si, Changwon-si) against the plaintiff shall be revoked.

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

The same shall apply to the order.

1. Details of the instant disposition

The following facts are not disputed between the parties, or they can be acknowledged in full view of the whole purport of arguments in each of the statements in Gap evidence 1, 2, Eul evidence 1, Eul evidence 2-1 through 2, Eul evidence 3-1 through 4, Eul evidence 4, Eul evidence 5-1, 2, Eul evidence 6 through 13, Eul evidence 18, 19, Eul evidence 20-1, 2, Eul evidence 21, and Eul evidence 21, and there is no counter-proof otherwise.

A. On December 14, 1987, the non-party Korea Water Resources Corporation approved the construction plan of the industrial complex exclusive for small and medium enterprises by the Construction Department No. 663 on December 14, 1987, and promoted the "Chowonwon National Industrial Complex Complex Development Project" until December 31, 1999 through several procedures for modification of the plan. The defendant is in charge of compensation, relocation and removal of the land, etc. included in the above complex development project according to the business agreement with the above Water Resources Corporation.

B. Of the forest land of 5,500 square meters and 426 square meters in Changwon-si, Changwon-si, 296 and 296 square meters, 5,50 square meters and 5,500 square meters in the forest land of 8-3 of the same city was incorporated into the above industrial complex and was subject to expropriation. The plaintiff is sharing a house on the above 296 ground on which he owns an ownership share, and the plaintiff has a 170 square meters on the third ground of

C. As the Plaintiff and the Defendant did not reach an agreement on the compensation for the above 296 land and the above housing and the money death, the Plaintiff filed an objection with the Central Land Expropriation Committee. According to the above adjudication, the Plaintiff deposited the compensation amount of KRW 97,341,00, KRW 30,652,630, KRW 30, and KRW 30,652, and on January 21, 199, the Plaintiff reserved an objection and received the said compensation, but did not file an administrative appeal or administrative litigation disputing the said adjudication.

D. On March 5, 1999, the defendant issued a writ of execution for removal of obstacles to the plaintiff's housing and the above 296 ground 8-3 ground 8-3 ground , on the ground that each of the above land was expropriated, respectively. On April 1, 199, the second disposition was taken, but the second disposition was taken on April 1, 199, but as the plaintiff did not voluntarily remove, the defendant issued a writ of execution for removal of obstacles to heading 5 and 98 on April 16 of the same year.

2. Whether the instant disposition is lawful

A. The parties' assertion

With respect to the Defendant’s assertion that the instant disposition was lawful in light of the details of the instant disposition and relevant statutes, the Plaintiff asserted that the instant disposition was unlawful because the Defendant, while accepting the instant land, did not provide the Plaintiff with the land relocation site and did not provide compensation for the land less than the scope of discretion.

(b) Markets:

The instant disposition was issued against the Defendant on the ground that the Plaintiff had a duty to remove housing and money on the ground of 296 and 8-3 of Busan 8-3 as well as the housing and money on the ground of 296 and 8-3 of Mountain Do, and thus, the Plaintiff failed to comply with this, and it is apparent that the Defendant was acting on behalf of the Defendant.

As for the part of the Plaintiff’s money death, it is possible to demand the Plaintiff to perform the removal duty as an illegal building and execute the removal free of charge if the Plaintiff failed to perform the removal duty. However, since the Plaintiff sought the removal of the said money death and the housing on the ground of acceptance, it can be seen as first whether the Plaintiff is liable to remove the instant house and the money death.

Article 63 of the Land Expropriation Act provides that "any landowner or person concerned, or any person who has a right to the land to be expropriated or used or any goods on such land shall deliver or transfer the land or goods to the public project operator by the time of expropriation or use", which states that the person subject to expropriation has a duty to deliver the land, etc. to the public project operator, but it is not recognized that the above provision stipulates that the person subject to expropriation has a duty to hand over the land, etc. to the public

Therefore, apart from seeking the delivery of an object, such as land expropriated by the Defendant to the Plaintiff (in the event that the Plaintiff fails to perform such an obligation, the Plaintiff’s obligation is not a substitute act, and thus the compulsory realization of the above obligation should be done by means of a direct enforcement rather than a method of vicarious execution). As long as the Plaintiff does not recognize the obligation to remove housing and money, the Plaintiff’s disposition of this case seeking vicarious execution on the premise that the Plaintiff did not perform the obligation to remove housing

In addition, according to the evidence Nos. 1 and 2 of this case, it is recognized that the defendant issued a writ of vicarious execution without stating the estimated amount of expenses for vicarious execution in the disposition of this case to the plaintiff, and Article 3 (2) of the Administrative Vicarious Execution Act provides that the obligor shall be notified of the estimated amount of expenses incurred for vicarious execution in carrying out vicarious execution. Thus, the disposition of this case is a defect of notification without stating the contents to be stated in the warrant of vicarious execution. Thus, the plaintiff's disposition of this case is illegal or illegal.

3. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case is with merit without determining the plaintiff's claim, and it is so decided as per Disposition.

Judges Park Hong-woo (Presiding Judge)