[1] Whether the selection of a person subject to relocation measures based on the use of a building recorded in the public register by a project operator as a principle constitutes an exercise of discretionary power significantly unreasonable (negative)

[2] The case affirming the judgment below which held that it cannot be deemed that the scope of the exercise of reasonable discretion by the project implementer's person subject to relocation measures, excluding the person who completed the registration of ownership transfer in his/her name after the lapse of the basic date, who had been living in the building area where the project implementer had owned the house which had been approved for use before the basic date before the basic date in the Rules on Countermeasures for Relocation and Living, and had been designated as the person subject to relocation measures

[1] Article 78(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Article 40(3)2 of the Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works / [2] Article 78(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Article 40(3)2 of the Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[1] Supreme Court Decision 2008Du12610 Decided March 12, 2009 (Gong2009Sang, 475) Supreme Court Decision 2009Du10291 Decided November 12, 2009 (Gong2009Ha, 2105)

Plaintiff 1 et al. (Law Firm KCEL, Attorneys Choi Gi-dam et al., Counsel for the plaintiff-appellant)

Korea Land and Housing Corporation (Attorney Kim Jong-hwan, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2009Nu9996 decided November 26, 2009

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

The grounds of appeal are examined.

According to Article 78(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Public Works Act”) and Article 40(3)2 of the Enforcement Decree of the Public Works Act, a project operator shall either establish and implement relocation measures or pay resettlement funds as prescribed by the Enforcement Decree of the Public Works Act for persons who lose their base of livelihood due to the provision of residential buildings due to the implementation of public works (hereinafter “persons subject to relocation measures”). However, the owner of a building who does not continue to reside in the relevant building from the date of public announcement, etc. under the relevant Acts and subordinate statutes for public works (hereinafter “base date”) until the date of conclusion of the contract or the date of expropriation. In principle, the project operator may determine the contents and quantity of the housing site or housing among those subject to relocation measures, and have discretion to determine them. Therefore, the standards established by the project operator to this end shall be respected, unless there are any special circumstances that are objectively rational or unreasonable, and thus, it is difficult to consider that the building owner’s application is unlawful on the basis of the principle of usage of the Act.

According to the reasoning of the judgment of the court below, the criteria for relocation and living measures announced by the defendant according to the project in this case, and the criteria for relocation and living measures of the defendant, as a matter of principle, provide that the person subject to relocation measures has been continuously residing in the housing district from before the base date to the date of public announcement of the first compensation plan. However, if a person who obtained a building permit, etc. under the related Acts and subordinate statutes has continuously resided in the housing before the base date after obtaining approval for the use of the housing concerned, it can be deemed that the person has continuously resided in the housing concerned as of the commencement date of first compensation, and the requirements for ownership and living have been mitigated. However, the plaintiffs have been residing in the building part of this case for which a report on extension and approval for use of a neighborhood living facility in the non-party name was made, and the registration of ownership transfer in the plaintiffs' name has been completed after the base date. In light of the above legal principles and the legislative purport of the public interest-related Acts and subordinate statutes, it cannot be justified in the judgment below as unlawful.

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)