[1] Whether the obligation of the recipient under the former Land Expropriation Act to transfer the land to the business owner can be a vicarious execution under the Administrative Vicarious Execution Act (negative)

[2] Whether the transfer of the land to be expropriated by the recipient, etc. under the former Land Expropriation Act and the order of the obstruction as the right to be preserved shall be permitted (affirmative)

[1] The "delivery" under the provisions of Articles 63, 64, and 77 of the former Land Expropriation Act (repealed by Act No. 6656 of Feb. 4, 2002, Article 2 of the Addenda to the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor) concerning the duty of transferring the land to be expropriated by the inmate, etc. to the business owner shall be deemed to include an explanation. Such an explanation obligation shall be deemed to include an indication, and it shall not be deemed that the direct exercise of the power is necessary in the compulsory realization of it, and it shall not be deemed as an alternative duty, barring any special circumstances, it shall not be subject to vicarious execution under the Administrative Vicarious Execution Act.

[2] Pursuant to Article 63 of the former Land Expropriation Act (repealed by Article 2 of the Addenda to the Act on Acquisition of and Compensation for Land, etc.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), the transfer of land to be expropriated by the inmate, etc. against the business operator or the duty to specify the obstacles thereof, etc., even if it is a legal relationship under public law, the disposition of a pre-determination on the right to be preserved may be permitted if there is any other necessary reason to avoid significant damage to the right or prevent imminent danger.

[1] Article 2 of the Administrative Vicarious Execution Act, Article 63 of the former Land Expropriation Act (repealed by Article 2 of the Addenda to the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects Act (Act No. 6656 of Feb. 4, 2002) (see Article 43 of the current Act on Acquisition of and Compensation for Land, etc. for Public Works Projects) (see Article 44 of the current Act on Acquisition of and Compensation for Land, etc. for Public Works Projects) 7 (see Article 89 of the current Act on Acquisition of and Compensation for Land, etc. for Public Works Projects) / [2] Article 300 (2) of the Civil Execution Act, Article 63 of the former Land Expropriation Act (repealed by Article 2 of Addenda to the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Act No. 6656 of Feb. 4, 2002) (see Article 43 of the current Act on Acquisition

[1] Supreme Court Decision 97Nu157 decided Oct. 23, 1998 (Gong1998Sang, 2785)

Class III Housing Redevelopment Cooperatives

Debtor 1 and four others (Attorney Im Im-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2003Kahap315 delivered on December 15, 2003

All appeals are dismissed. The costs of appeal are assessed against the debtor.

Article 63 of the former Land Expropriation Act (amended by Act No. 6656 of Feb. 4, 2002 and repealed by Article 2 of the Addenda to the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor; hereinafter the same shall apply) provides that "the owner of the land or the person concerned who has rights to the land to be expropriated or used or the goods thereon shall deliver or transfer the land or the goods to the public project operator by the time of expropriation or use". Article 64 provides that "in cases falling under any of the following subparagraphs, the head of the Si/Gun/Gu shall, upon the request of the public project operator, vicariously deliver or transfer the land or the goods," and Article 77 of the former Land Expropriation Act provides that "if the person who transfers or transfers the land or the goods is unable to carry out such obligations without any negligence, it shall be deemed that the land or the goods are not carried out by the public project operator or the head of the Si/Gun/Gu who is clearly likely to do so within the said period of time or within the said period of time".

The court below rejected the claim that there is no interest in the claim for provisional disposition of this case since there is a separate remedy for the creditor to realize the right to claim such name through administrative vicarious execution, based on the debtor's following arguments, that is, the creditor has no interest in the claim for provisional disposition of this case, on the ground that the debtor's obligation to request the provisional disposition of this case constitutes a so-called non-alternative act obligation which cannot be vicariously executed as prescribed by Article 77 of the former Land Expropriation Act and the Administrative Vicarious Execution Act, and on the contrary, in light of the various circumstances in its reasoning, the necessity of preserving the claim for provisional disposition of this case is also recognized, and in light of the records, the court below accepted the creditor's request for provisional disposition of this case, and therefore, it is justified in accordance with the above legal principles, and it is not justified in the misapprehension of legal principles or the necessity for the provisional disposition of Article 73 of the former Land Expropriation Act.

On the other hand, the ground of appeal that the court below's measure taken by treating it as a general civil case is unlawful in violation of the violation of the jurisdiction is not accepted, even though it is clear in its nature that the request for a pre-determination order under Article 63 of the former Land Expropriation Act as the right to be preserved is an administrative case.

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)