[1] Purport of the proviso of Article 11 (1) 1 (c) of the former Act on Special Measures for Designation and Management of Development Restriction Zones and Article 13 (1) [Attachment 1] 3 of the Enforcement Decree of the same Act, and whether a person entitled to file an application for relocation permit under Article 13 (1) [Attachment 1] 3 of the Enforcement Decree of the same Act is limited to

[2] The meaning of “private or other unlawful means” under Article 30 subparag. 2 of the former Act on Special Measures for Designation and Management of Development Restriction Zones, and whether a person who is not eligible to file an application for a relocation permit constitutes a case where a person acquires the so-called “the right of relocation” from the owner of a house at the time of removal for the purpose of newly constructing a house within the development restriction zone and obtains a

[1] Article 11 (1) 1 (c) of the former Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 7383 of Jan. 27, 2005); Article 13 (1) [Attachment 1] 3 of the Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones / [2] Article 30 subparagraph 2 of the former Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 7383 of Jan. 27, 2005)

[1] [2] Supreme Court Decision 2002Do5197 decided Nov. 26, 2002 (Gong2003Sang, 293) / [1] Supreme Court Decision 91Nu8128 decided May 12, 1992 (Gong192, 185)

Defendant 1 and one other

Defendants

Attorneys Han Chang-chul et al.

Incheon District Court Decision 2006No1072 Decided September 29, 2006

All appeals are dismissed.

We examine the grounds of appeal.

1. Article 11(1)1 (c) of the former Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 7383, Jan. 27, 2005; hereinafter “Development Restriction Act”) and Article 13(1) [Attachment 1] 3 of the Enforcement Decree of the Development Restriction Act allow relocation of houses within development restriction zones. The purpose of this Act is to ensure that a person, who had a living ground in a development restriction zone, continues to prepare and provide a living basis to the person concerned when he/she satisfies certain requirements, such as the removal of existing houses due to the implementation of public works, etc., and the removal of existing houses, is not to give him/her a certain pecuniary benefit in return for removal of existing houses, and thus, an application for relocation permission under the above provision is permitted only to the housing owner at the time of removal (see, e.g., Supreme Court Decisions 91Nu128, May 12, 192; 200Do526, Jan. 26, 2002).

In addition, Article 30 subparagraph 2 of the Development Restriction Act refers to a case where permission is obtained using deceptive scheme or any other act that is deemed unfair by social norms, although it is not possible to obtain permission through a normal procedure (see Supreme Court Decision 2004Do7359 delivered on January 28, 2005).

Therefore, if a person who is not eligible to file an application for a permit for relocation gains the so-called right of relocation from the owner of a house at the time of removal for the purpose of newly constructing a house within a development restriction zone and obtains the permit for relocation in his name, it shall be deemed that the case constitutes a case where the permission was obtained by deceit or other unlawful means under Article 30 subparagraph 2 of the Development Restriction Act (see Supreme Court Decisions 2002Do5197, Apr. 9, 200, etc.).

The judgment of the court below which is the same purport is just, and there is no error of law such as violation of precedents or misunderstanding of legal principles as to the development restriction law as alleged in the grounds of appeal.

2. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)