In a case where a housing improvement redevelopment cooperative under the Urban Redevelopment Act removes a building within a business area where the period of voluntary removal has elapsed by its resolution without following the procedure of vicarious administrative execution, whether the owner of the building can claim damages equivalent to the value of the building or the rent for that reason.

In a case where Party A, who is a party member of the Housing Improvement and Redevelopment Partnership under the Urban Redevelopment Act, fails to remove a building within the period of voluntary removal, the project implementer can request the competent authority to remove the building by itself. Therefore, the act of removing the building by itself is unlawful. However, if the building was to be removed by administrative vicarious execution at any time due to its excessive period of voluntary removal, and the building was removed by administrative vicarious execution procedure, Party A was in a position to bear the cost. Therefore, the said building was removed by itself without following the administrative vicarious execution procedure, and the damage equivalent to the value of the building could not be caused to Party A. Even if Party A was able to obtain a benefit equivalent to the rent for the building due to the said vicarious execution, in relation to the said building, the right to remove the building cannot seek compensation for the said building.

Article 750 of the Civil Act, Article 20 of the Urban Redevelopment Act, Article 36 of the same Act

Kim Charter

Freeboard 1 District Housing Improvement and Redevelopment Association and one other

1. All of the plaintiff's claims are dismissed.

2. Litigation costs shall be borne by the plaintiff.

The Defendants shall not interfere with the Plaintiff’s possession of 63 square meters in Seoul (detailed number omitted).

The defendants shall jointly and severally pay KRW 9,020,526 to the plaintiff, and a provisional execution is ordered for the above monetary amount.

1. Factual basis

(2) On the other hand, the Plaintiff’s 1 and 2 were to be aware of the fact that the Plaintiff’s 1 and 1 and 2 were to voluntarily remove the building site owned by the Plaintiff and 1 and to whom the Plaintiff’s 1 and 2 were to be aware of the fact that the Plaintiff’s 1 and 2 were to voluntarily remove the building site and to whom the Plaintiff’s 1 and 11 were to be aware of the fact that the Plaintiff’s 1 and 2 were to be aware of the fact that the Plaintiff’s 1 and 3-year association’s 1 and 3-year association’s 6-year association’s 1 and 14-year association’s 6-year association’s 1 and 5-year association’s 6-year association’s 6-year association’s 1 and 5-year association’s 6-year association’s 1 and 5-year association’s 8-year association’s 1 and 5-year association’s 6-year association’s 18-year association’s 25.

2. The plaintiff's assertion

The plaintiff asserts that, without obtaining authorization of the management and disposal plan under Article 41 of the Urban Redevelopment Act, the defendant association, the above project implementer, did not follow the procedure for administrative vicarious execution, removed the housing owned by the plaintiff, and caused the defendant company to implement the above construction, the plaintiff sought a removal of interference with the plaintiff's possession of the above land from the defendant company, on the ground that the defendant company suffered losses equivalent to the amount of rent from the removal to August 14, 1990 due to the illegal removal of the above building and the amount of expenses for reconstruction.

3. Determination on the claim for exclusion of interference with possession

As seen above, inasmuch as the Defendant Union was formed with the consent of more than the legal quota among the owners of the land, etc. located within the redevelopment area for the implementation of the above redevelopment project and the establishment and implementation of the redevelopment project has been authorized, the Plaintiff acquires the status of the members of the Defendant Union as the owner of the land and buildings within the above redevelopment area under the Urban Redevelopment Act regardless of its intent (Articles 2 subparag. 4 and 20(1) of the same Act), and acquires the above rights against the Defendant Union, while not only the obligation to comply with the association’s resolution and the obligation to voluntarily remove the above building within the above redevelopment area within 30 days from the date of public announcement of the above project implementation approval, it is reasonable to view that not only the obligation under the Articles 41 of the above Act to allow the use of the land within the above redevelopment project for the implementation of the redevelopment project, but also the obligation under the principle of good faith to exclude the Plaintiff’s possession of the land in the process of promoting the above redevelopment project, which is the developer of the redevelopment project, may not be justified.

4. Determination on the claim for damages

The plaintiff, as a member of the defendant association, failed to comply with the request for removal of the above building, which is an obstacle within the redevelopment area within 30 days from the date of the public announcement of the project implementation authorization, and the period was excessive. Thus, even if the person liable to remove obstacles fails to do so within the voluntary removal period, the project implementer can request the competent authority to remove the above building, and in spite of the fact that the defendant association did not perform its own compulsory execution, it is unlawful to remove the above building only by its own resolution. However, if the plaintiff had removed the above building in accordance with the procedure of administrative vicarious removal by accepting the request of the defendant association for removal of the above building, and if the head of the competent authority at the time of removal did not demand compensation for damages due to the removal of the above building, the plaintiff cannot be deemed to have suffered damages due to the plaintiff's non-performance of the above building's duty to remove the above building without due to the nature of the damages to the defendant association, even if he did not obtain damages from the above owner of the above building.

5. Conclusion

Therefore, the plaintiff's claim of this case is without merit, and each of the costs of lawsuit are dismissed, and the costs of lawsuit are assessed against the losing plaintiff.

Judges Park Yong-young (Presiding Judge)