Plaintiff (Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

The head of Dongjak-gu Seoul Metropolitan Government

March 25, 2004

Seoul Administrative Court Decision 2002Guhap21452 delivered on May 14, 2003

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the plaintiff.

The judgment of the first instance shall be revoked. The defendant's disposition against the plaintiff on November 13, 2001, excluding the plaintiff from the person subject to special supply of the apartment as shown in the attached Table 1, shall be revoked.

1. Details of the disposition;

The following facts are not disputed, or there is no dispute, Gap evidence 1-2, Eul evidence 1-2-1, 3-4, 3-1-5, 4-1 through 5, Gap evidence 5-1 through 4, Gap evidence 6-1, 2, Gap evidence 7-1 through 3, Gap evidence 8-1 through 3, Gap evidence 9-1, 2, Eul evidence 10-1 through 3, Eul evidence 1-2, Eul evidence 2-2, Eul evidence 10-1, 10-2, Eul evidence 2-9, Eul evidence 10-1, and 2-2. The whole purport of the arguments can be acknowledged.

A. On August 16, 199, the Defendant obtained the authorization of an implementation plan for an urban planning project (such as the creation of a new cemetery park) under the Dongjak-gu Notice No. 1999-19, and entered the consultation procedure to acquire ownership from Nonparty 1, the owner of an apartment building listed in attached Table No. 2 (hereinafter referred to as “multi-family housing subject to removal”) incorporated within the project area.

B. The Defendant made a cash compensation of KRW 19,00,000 for the apartment subject to the removal of Nonparty 1’s ownership for the consultation, and provided that the plan for the removal of the apartment was finalized, and that the residents who received the compensation for the removal would be granted special supply of the apartment for public sale executed by the Seoul Special Metropolitan City Urban Development Corporation (hereinafter “Non-Party 1”). A consultation was concluded between Nonparty 1 and the Defendant around September 15, 199.

C. Accordingly, Nonparty 1 delivered to the Defendant all documents necessary for the registration of transfer of ownership of the apartment subject to removal along with the documents necessary for the special supply of one household of the instant apartment, and simultaneously delivered the apartment subject to removal to the Defendant.

D. After that, on February 11, 2000, the defendant confirmed the non-party 1 as the specially supplied subject of the apartment of this case, and the non-party 1 died on April 28, 200, the defendant applied for the sale to the non-party 1 by designating the plaintiff who is the wife of the non-party 1 as the specially supplied subject of the special supply on July 21, 2000, and the non-party 1 selected the plaintiff as the specially supplied subject of the apartment of this case as set forth in the attached Table 1 by drawing the same and unit numbers.

E. However, on November 13, 2001, the Defendant notified the Plaintiff on the ground that “other than buildings removed by the Plaintiff as of October 27, 2001, the Plaintiff’s search and notification was made to the primary house owned by the Plaintiff, his lineal ascendant or descendant, and as a result, the Plaintiff’s study submitted by the Plaintiff, as a result of reviewing the public records, that the Plaintiff is disqualified from being qualified to move into a new-term apartment on the ground of the ownership of the building, other than buildings removed pursuant to Article 5 of the Rules on Special Supply of National Housing to the Residents of Seoul Metropolitan Government (hereinafter “instant disposition”).” (hereinafter “instant disposition”).

2. The parties' assertion

A. The defendant's assertion

(1) This safety defense

On November 15, 2001, the Defendant sent to the Plaintiff the “Notice of Inappropriate Contents of Application for Special Supply of National Housing” (hereinafter “instant Disposition”). The instant Disposition was served on the 16th of the same month, and the Plaintiff filed the instant lawsuit on June 18, 2002, which clearly became the lapse of 90 days from the Plaintiff, and thus, the instant lawsuit is unlawful as the period for filing the lawsuit expired.

(2) Defenses against the merits

According to Article 19 of the former Housing Supply Rules (amended by Ordinance of the Ministry of Construction and Transportation No. 232 of Mar. 27, 2000; hereinafter referred to as the "Supply Rules") and Article 5 of the Seoul Metropolitan Government Ordinance on the Special Supply of National Housing to the Demolitions of the Seoul Metropolitan Government (hereinafter referred to as the "Seoul Metropolitan City Rules"), a person entitled to special supply of national housing shall be a homeless-household as of the date of application for supply, and the date of application for supply refers to the date on which the defendant, who is a specially supplied, finally becomes a person entitled to special supply, and notifies the defendant to make a special supply after final determination of the person entitled to special supply. In this case, the defendant notified that the person subject to special supply of national housing as of Feb. 11, 200, and thus, the plaintiff was owned by Nonparty 2 as the plaintiff on Feb. 11, 200, which does not constitute a legitimate disposition of national housing in this case except for the plaintiff's special supply under Article 19 of the National Housing Supply Rules.

B. The plaintiff's assertion

(1) Claim that Article 19 of the Supply Rules and Article 5 of the Seoul Metropolitan Government Rules are excluded;

Article 3(4)3 of the Rules on Housing Supply, which was amended by Ordinance No. 232 of the Ministry of Construction and Transportation on March 27, 2000 (hereinafter “amended Rules on Housing Supply”), provides that the supply rules shall not apply to the case where a public project operator directly constructs a house for relocation measures following the implementation of a public project, or a person who is provided with a housing site for relocation measures by entrusting another public project operator with a construction project operator, supplies a house for relocation measures. The apartment of this case constitutes “a house constructed by entrusting another public project operator for relocation measures following the implementation of a public project,” and in the case of the apartment of this case where the public project operator fails to make a separate public announcement by providing the entire house newly built by the public project, the apartment of this case shall be deemed to fall under the date of the public announcement of invitation as stipulated in the relevant Acts and subordinate statutes. Accordingly, Article 19 of the Rules on Supply, which provides for the selection requirements for the non-resident project owner to be specially supplied, and Article 5 of the Rules of Seoul shall be excluded.

(2) The plaintiff's assertion that the plaintiff constitutes a homeless-household.

In accordance with Article 5 (5) of the Seoul Metropolitan Government Rules, the defendant did not notify the plaintiff that he is a person eligible for special supply, and the plaintiff was at any time determined as a person eligible for special supply because he was not served with the determination disposition of the defendant's person eligible for special supply, and the selection date is at any time known from the non-party construction that the defendant was excluded from the person eligible for special supply. The plaintiff was excluded from the person eligible for special supply only because he was refused to conclude a contract due to the non-party construction's notification that the plaintiff was excluded from the person eligible for special supply. In addition, in accordance with Article 21-2 (1) of the Rules on Supply, the plaintiff's disposal should be made by the housing network composed of the methods and procedures prescribed by the Ordinance of the Ministry of Construction and Transportation in accordance with the Act on the Promotion of Utilization of Information and Communications Network Utilization, or by the person who was selected as a person eligible for special supply in accordance with the housing network, and thus, the non-party construction should be viewed as a person eligible for special supply of the above apartment house to the non-party 20.

(3) The allegation that the apartment of this case is specially supplied as part of the relocation measures, and thus whether it is a homeless head does not meet the requirements.

According to Articles 3(1) and (4)3(3) of the Supply Rules, the supply rules shall not apply to the case where the operator of the public project directly constructs the housing for relocation measures or constructs the housing to be entrusted to another project operator for relocation measures, or supplies the housing to be constructed in the relevant housing site. Article 8(1) of the Act on Special Cases Concerning the Acquisition of Land for Public Use and the Compensation for Loss, Etc. (amended by the Act on the Acquisition of Land, etc. for Public Works, effective January 1, 2003; hereinafter “Special Act”) and Article 5(5) of the Special Act on the Acquisition of Land, etc. for Public Use (amended by the Enforcement Decree of the Act on the Acquisition of Land, etc. for Public Works and the Compensation for Loss, etc. (hereinafter “Special Act”), since the defendant, who is the project operator of the urban planning project of this case, directly establishes relocation measures for the plaintiff, etc. or is not obligated to jointly establish the housing of the urban planning project to supply the housing to the public corporation and its non-party-party-party-party-party-project.

(4) The defendant's assertion that the defendant's disposition of this case in this case is null and void since the right to select and confirm occupants

The defendant asserts that the disposition of this case was based on the provisions of Articles 5, 11, and 12 of the Seoul Metropolitan Government Rules, but the above Seoul Metropolitan Government Rules are subordinate regulations for the purpose of prescribing the standards and procedures necessary for the special supply of national housing, etc. to the removal residents falling under the provisions of Article 19 (1) 3 and 4 of the supply Rules. According to the above supply rules, the business entity of the apartment of this case can select and confirm the tenant, and there is no authority for the defendant to do so. Thus, the above provision of this case is null and void because the contents of the apartment of this case are contrary to the above supply rules, and thus the disposition of this case based on the above provision of this case is unlawful [the plaintiff is excluded from the application of the above provision including Article 19 (1) 3 and 4 of the supply Rules applicable to the special supply of the apartment of this case, and therefore the application of the above provision of the Seoul Metropolitan Government Rules is excluded, and thus the disposition of this case is unlawful. However, the above part of the above assertion is unlawful.

(5) The assertion that it goes against the principle of good faith.

Each of the dispositions of this case that the Defendant promised to specially supply the apartment of this case as a countermeasure for relocation, thereby securing the Defendant’s right by acquiring the ownership of the apartment subject to removal owned by the Plaintiff, and thus making a special supply on November 13, 2001 past two years and two months thereafter, is contrary to the principle of good faith and good faith, and each of the dispositions of this case is null and void.

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination on the legitimacy of each of the dispositions of this case

A. Determination on this safety defense

In full view of the purport of Gap evidence 9-1, 2 (No. 9; hereinafter the same shall apply), Gap evidence 12-1, 2-2, and 10-2-2, and the purport of the whole pleadings as to the Seoul head of this court's fact-finding on November 15, 2001, the defendant sent to the plaintiff a notice of improper contents of the application for special supply of national housing (hereinafter "the notice of improper contents of the disposition of this case") stating the contents of the disposition of this case to the plaintiff on November 16, 201, and the house members belonging to the Seoul Dongjak-gu Seoul Metropolitan Government Office delivered the written disposition of this case to the non-party 2, 105-205, which is the plaintiff's address, to the non-party 1, 205-105, and the non-party 3 had the ability to deliver the written disposition of this case to the plaintiff on October 16, 1991, it is evident that the plaintiff had the ability to deliver the records of this case to the non-party 3.

However, in addition to the above evidence Nos. 1 and 2, the plaintiff filed an administrative appeal seeking revocation of the disposition of this case with the Seoul Special Metropolitan City on March 21, 2002, prior to the filing of the lawsuit of this case, and the written adjudication rejecting the plaintiff's claim was served on the plaintiff on May 6, 2002, and the plaintiff appealed and filed the lawsuit of this case on June 18, 2002. Meanwhile, according to the above facts of recognition, the disposition of this case constitutes the case where the administrative agency did not notify the period of request for adjudication. The plaintiff lawfully filed an administrative appeal on March 21, 2002, which is 180 days prior to the filing of the lawsuit of this case. The plaintiff filed a lawsuit of this case within 90 days after the receipt of the written adjudication, and thus, the plaintiff's defense of this case was lawful and without merit.

B. Judgment on the merits

(1) Facts of recognition

The following facts may be acknowledged in light of each of the above evidence and Gap evidence 11, Eul evidence 13-1 to 3, Gap evidence 14-1 to 3, Gap evidence 15-1 to 5, Gap evidence 18-1 and 2, and the purport of the whole pleadings, and there is no counter-proof:

㈎ 피고는 이 사건 도시계획사업을 시행함에 있어 그 이주대책으로 소외 공사가 건설할 예정인 이 사건 아파트를 공급규칙 제19조 , 서울시 규칙 제5조 소정의 요건을 갖춘 철거대상자에게 특별공급하여 주기로 하였고, 원고는 피고에게 이 사건 아파트에 대한 특별공급을 신청하였다.

㈏ 한편 소외 공사는 주택건설촉진법 제33조 의 규정에 따라 1999. 12. 31. 서울특별시장으로부터 서울 동작구 신대방동 470-11 외 3필지 지상에 이 사건 아파트를 포함하여 6개동 428세대 규모의 아파트를 신축하는 내용의 주택건설사업계획의 승인을 얻은 다음 이를 고시하였다.

㈐ 피고는 그 무렵 서울시로부터 이 사건 아파트에 대한 주택건설사업계획승인사실을 통보받은 다음, 2000. 2. 11. 원고를 비롯한 81세대의 건물주들을 국민주택특별공급대상자로 확정하였다(다만 을 제4호증의 기안문은 ‘국민주택특별공급대상자 확정 통보’로 되어 있고, 피고는 위 대상자 확정사실을 해당 건물주에게 통보하였다고 주장하나, 이를 인정할 만한 자료는 없다).

㈑ 소외 공사는 이 사건 아파트 건설량 전부를 일반공급 없이(따라서 입주자모집공고도 하지 않았다) 도시계획사업, 택지개발사업의 시행에 따른 철거민들에게 특별공급하기로 하고, 2000. 7. 21.부터 2001. 9. 28.까지 사이에 피고를 비롯한 서울특별시 25개 각 구청장으로부터 특별공급신청을 받았다.

㈒ 이에 피고는 2000. 7. 21. 원고를 대리하여 소외 공사에게 국민주택 특별공급신청을 하였고, 그에 따라 소외 공사는 앞서 본 바와 같이 동·호수 추첨을 통하여 원고를 이 사건 아파트의 특별공급대상자로 선정하였으나, 2001. 10. 9. 서울특별시에 원고의 주택소유여부 등 전산검색을 의뢰하여 같은 달 19. 그 회신을 받은 결과 아래와 같이 원고의 아들 소외 2 명의로 이 사건 철거대상 아파트 외에 위 연수동 아파트를 소유하고 있었음이 밝혀지자 피고에게 이를 통보하였고, 이에 따라 피고가 원고를 이 사건 아파트의 특별공급대상자에서 제외하는 이 사건 처분을 하였다.

㈓ 원고의 아들 소외 2는 1994. 11. 3. 위 연수동 아파트에 대하여 소유권이전등기를 마친 다음 이를 소유하고 있었는데, 위 연수동 아파트는 근저당권자인 주식회사 한국주택은행의 경매신청으로 경매절차가 진행되어 2000. 4. 3. 소외 신경희에게 낙찰되었다. 한편, 원고의 남편 망 소외 1(2000. 4. 28. 사망하였다)이 세대주로서 원고 및 원고의 아들 소외 2와 그의 처를 세대원으로 하고 있었다가 그후 소외 2는 서울 강동구 (상세 아파트명 생략)아파트로 전출하여 별개 세대를 구성하였다.

(2) Determination of the requirements for special supply of national housing to the removals under the supply rules and the Seoul Metropolitan Government Rules

㈎ 무주택세대주일 것

According to Article 19(1)3(c) of the Rules on Supply, Article 19(1)3(c) of the Rules provides that a person who is a homeless household as of the date of the announcement of the recruitment of a house and owns a house removed by an urban planning project and who is recognized by the head of the relevant Special Metropolitan City Mayor, Metropolitan City Mayor, or the head of the relevant Si/Gun shall be specially supplied national housing. Meanwhile, according to Article 5(1)3 of the Rules on Supply of National Housing, Article 5(1)2 of the Rules on Seoul, which provides for the standards, etc. necessary for the special supply of national housing to the removed residents pursuant to the provisions of Article 19(1)3 of the Rules on Supply of National Housing, a person subject to special supply of national housing is a householder who does not own any building removed by a project and notifies that he/she applies for the supply of national housing as of the date of the notification, and Article 2(1) of the Rules on Seoul shall be a person registered as a resident in the jurisdiction of Seoul Metropolitan City as of the date of the notification.

㈏ 무주택세대주의 인정 기준일

Article 19 of the National Housing Supply Rules requires that a person subject to the special supply of national housing should be a homeless household as of the date of the public notice for invitation of occupants. In this case, the whole construction volume of the apartment of this case was specially supplied, and the public notice for invitation of occupants was not made because there was no general supply, so it is a question whether it should be the date of

First, according to the general supply (including a case where a part of the plan is specially supplied), it is known that the project undertaker has obtained approval of the project plan, such as securing ownership of the site for housing construction, and has reached a certain process (Articles 7 and 8 of the supply rules), the project undertaker has received an application for housing supply (Article 9 of the supply rules), the selection of the person eligible for occupancy by computer network (Article 21-2 of the supply rules), the selection of the person eligible for occupancy by computer network after computerized search (Article 21-2 of the supply rules), and the conclusion of the supply contract with the legitimate winner (Article 27 of the supply rules). In the case of applying for housing supply, the submission of documents verifying that the person eligible for special supply is subject to the special supply issued by the local government, etc. (see Article 9(2)8 of the supply rules) shall be made on the date of application for housing supply along with the application for housing construction (Article 20 of the supply rules). Thus, it is reasonable to view that the local government is not specially determined after the approval of the project operator's.

㈐ 원고의 무주택세대주 해당 여부

As above, in regard to whether the Plaintiff falls under a homeless householder as of February 11, 200, the fact that Nonparty 2, who is the Plaintiff’s son, owned the above training apartment, is as seen earlier, and therefore, the Plaintiff does not constitute a homeless householder, who is a person eligible for the special supply of national housing as prescribed by the Rules of Seoul and the Rules of Seoul.

(3) Judgment on the Plaintiff’s first assertion

Article 3(1) of the amended Rules of Supply provides that "this Rule shall not apply to the supply of housing and welfare facilities to be constructed by a project undertaker after obtaining approval for a project plan pursuant to Article 33 of the Housing Construction Promotion Act, and Paragraph (4) of the same Article provides that "this Rule shall not apply to the supply of housing falling under any of the following subparagraphs, notwithstanding the provisions of paragraph (1): Provided, That this shall not apply to the supply of housing remaining after the supply of housing to the relevant project undertaker: Provided, That this shall not apply where the operator of a public project directly constructs housing for relocation measures following the implementation of a public project, or a person who supplies housing for relocation measures by entrusting another project undertaker with the construction of housing or housing for relocation measures." However, Article 3(1)3 provides that "this Rule provides housing to the relevant housing site by a person who is directly constructed for relocation measures or by entrusting another project undertaker with the construction of housing or housing for relocation measures." However, the base date recognized as a non-family household owner of the apartment of this case is the date on which the defendant confirmed to be specially supplied, and therefore the plaintiff is not justified.

(4) Judgment on the second assertion by the Plaintiff

As of July 21, 200 or thereafter, on the premise that the basic date for recognition of non-household owners of the apartment of this case should be deemed to be the same as that of the non-household owners, even if the Plaintiff’s assertion that it falls under the category of the non-household owners who are subject to the special supply of national housing as prescribed in Article 19 of the supply rules, the basic date for recognition of the non-household owners of the apartment of this case shall be deemed to be February 11, 200, when the Defendant confirmed the person to be specially supplied, the above assertion

(5) Judgment on the third assertion by the Plaintiff

Even according to the relevant provisions, it cannot be deemed that the Mayor of Seoul Special Metropolitan City and the defendant jointly promoted the instant urban planning project or that the non-party construction and the defendant jointly supplied the instant apartment to the plaintiff. Furthermore, there is no evidence to acknowledge that the instant apartment house constitutes the housing constructed by entrusting another project operator with the relocation measures following the implementation of the public project. However, according to the above, the instant apartment building is constructed with the approval of the construction project plan under Article 33 of the Housing Construction Promotion Act from the Mayor of Seoul Special Metropolitan City, and it is merely a special supply to the removal residents following the implementation of the housing site development project [the proviso of Article 5 (5) of the Enforcement Decree of the Public Special Rule merely provides that if the project operator supplies the housing to the person subject to the relocation measures (including the case where the apartment is supplied through the arrangement of the project operator) under the related Acts and subordinate statutes such as the Housing Construction Promotion Act, it shall not be deemed that the Defendant established and implemented the relocation measures by the special supply of the instant apartment to the plaintiff, but it shall not be deemed that the requirements of the instant apartment building are jointly constructed by the defendant's.

(6) Judgment on the plaintiff's fourth argument

According to the provisions of Articles 10, 19, 21-2, and 26 of the Rules of Supply, the Plaintiff asserts that the non-party corporation, the project undertaker of the apartment of this case, has the authority to select and determine the subjects of the housing, and that there is no authority to do so to the Defendant. However, according to Article 19(1) of the Rules of Supply, “Where the project undertaker constructs and supplies housing, such as national housing, etc., ----special supply may be supplied.” The project undertaker does not have the authority to select and determine the subjects of the housing, etc., and as seen in the above paragraph(2) does not have the authority to select and determine the special supply of national housing, etc. to the removed residents pursuant to Article 19(1)3 and 4, etc. of the Rules of Supply. According to the Seoul Metropolitan Government Rules, the head of the Gu including the Defendant, etc. shall determine the special supply subjects of national housing through the relevant procedures. Thus, even if the above regulations cited by the Plaintiff, the Plaintiff’s assertion against the above provision cannot be justified.

(7) Judgment on the plaintiff's fifth argument

The defendant's special supply of the apartment of this case to the plaintiff as a countermeasure for relocation is based on the premise that the plaintiff constitutes a homeless household owner as prescribed in Article 19 of the supply rules and Article 5 of the Seoul Metropolitan Government Rules, and even if the plaintiff excluded from a person subject to special supply for the reason that he does not constitute a homeless household owner as seen above, it cannot be viewed as null and void as a disposition contrary to the principle of good faith and good faith, and as such, the plaintiff's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case, which is premised on the illegality of each disposition of this case, is dismissed as it is without merit. The judgment of the court of first instance is unfair by dismissing the lawsuit of this case, but it is recognized that the judgment of the court of first instance has been examined to the extent that it can render a judgment on the merits of this case, so it is not remanded to the court of first instance, but it is decided to render a judgment on the merits of this case without returning to the court of first instance. However, in the case of which only the plaintiff appealed, it is not possible to revoke the judgment of

[Attachment Omission of List of Real Estate]

Judges Oh-hyh (Presiding Judge) Kim So-young