Plaintiff (Law Firm Cho & Lee, Attorneys Choi Jong-soo et al., Counsel for the plaintiff-appellant)

king New Zealand District Housing Redevelopment and Improvement Project Association (Attorney Gong-young, Counsel for the plaintiff-appellant)

June 23, 2016

Seoul Administrative Court Decision 2015Guhap61061 Decided December 4, 2015

1. The part against the plaintiff corresponding to the money ordered to be paid under the judgment of the court of first instance shall be revoked.

The defendant shall pay to the plaintiff KRW 21,179,734.

2. The plaintiff's remaining appeal is dismissed.

3. The total costs of the lawsuit shall be twenty minutes, one of which shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. The portion of payment of the amount under paragraph (1) may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff 26,319,240 won with 5% interest per annum from October 25, 2014 to the date this judgment is rendered, and 20% interest per annum from the next day to the date of complete payment.

2. Purport of appeal

The part of the judgment of the court of first instance against the plaintiff shall be revoked. The defendant shall pay to the plaintiff 26,319,240 won and 4,953,600 won with 5% per annum from October 25, 2014 to December 4, 2015, and 15% per annum from the next day to the date of full payment.

1. Quotation of judgment of the first instance;

The reasoning of this court’s judgment is as follows, except for the following specifications, the part on the claim for the payment of settlement money, etc. by Plaintiff 2 (hereinafter “Plaintiff”) at the end of the fifth fifth of the judgment of the court of first instance (hereinafter “the claim for settlement money, etc.”) is as stated in the reasoning of the judgment of the court of first instance. Thus, it is acceptable in accordance with Article 8 of the Administrative Litigation Act and Article 420 of the

2. Parts to be dried;

A. The plaintiff's assertion

As co-owner of the building of this case, the Plaintiff had moved out of the project area of this case while living in the building of this case. Accordingly, the Defendant shall pay the Plaintiff KRW 12,00,000,00 for resettlement settlement money, KRW 8,187,790 for relocation expenses, KRW 1,177,850 for relocation expenses, and KRW 1,17,850 for directors.

B. Determination

1) The portion of the claim for resettlement funds

A) Occurrence of obligation to pay resettlement allowances;

(1) Article 40(1) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (hereinafter “Act on the Acquisition of Land, etc.”) shall apply mutatis mutandis to the expropriation or use of the ownership of, and other rights to, the land or buildings for implementing a rearrangement project within a rearrangement zone, except as otherwise provided for in this Act. Paragraph (2) of the same Article provides that “In applying mutatis mutandis the Public Works Act pursuant to the provisions of paragraph (1), the public announcement of project implementation authorization (where the head of a Si/Gun directly implements a rearrangement project, referring to the public announcement of the project implementation plan under Article 28(4); hereafter the same shall apply in this Article) shall be deemed project approval and the public announcement thereof under Articles 20(1) and 22(1) of the Act on the Acquisition of Land, etc. for Public Works Projects.”

In addition, Article 40(3) of the Enforcement Decree of the Public Works Act, which provides for the establishment and implementation of measures for relocation pursuant to the delegation of Article 78(1) of the Public Works Act, provides that "any person falling under any of the following subparagraphs shall be excluded from persons subject to measures for relocation," and subparagraph 2 of Article 40 provides that "the owner of a building who does not continuously reside in the building concerned from the date of notification, etc. under the relevant Acts and subordinate statutes for public works to the date of conclusion of the contract or the date of expropriation: Provided, That this shall not apply where he/she does not reside due to medical treatment due to disease, enlistment

Meanwhile, in full view of the procedures for the progress of public works under the Urban Improvement Act and the policy needs to prevent speculative transactions following the implementation of such projects, it is reasonable to deem that the statutory base date for relocation measures falling under the “date of public notice, etc. under the relevant Acts and subordinate statutes for public works” in the Housing Redevelopment Act is the public announcement of the maintenance plan under Article 4(1) and (2) of the Urban Improvement Act, and Article 11(1) of the Enforcement Decree of the Urban Improvement Act (see, e.g., Supreme Court Decisions 2010Du3558, Nov. 11, 2010; 2012Du22911, Jul. 23, 2015).

In full view of the legal principles related to the above provisions, the owner of a building who has not resided continuously from the date of public announcement of the improvement plan for the housing redevelopment project to the date of conclusion of the contract or the date of adjudication on expropriation shall be excluded from the person subject to the relocation measures pursuant to the main sentence of Article 40 (3) 2 of the Enforcement Decree of the Public Works Act, and shall not receive the resettlement subsidy. However, if the owner fails to reside due to inevitable reasons corresponding

(2) In full view of the purport of the entire pleadings as to the instant case’s health room and evidence No. 4, it is recognized that the Plaintiff resided in a residential building located within the instant business area as of October 20, 2008, which was prior to the date of the public inspection and notification of the instant improvement plan under the Urban Improvement Act ( October 13, 2005), but that the Plaintiff moved to the outside of the instant business area around October 20, 2008, which was prior to the date of the public inspection and notification of the improvement plan under the Urban Improvement Act.

However, comprehensively taking account of the overall purport of arguments in Gap evidence Nos. 5 and Eul evidence Nos. 3, the defendant requested the relocation period from March 15, 2008 to June 14, 2008. ② The plaintiff moved to a partner around October 20, 2008 to implement the relocation obligation; ③ the removal of the building in this case and its neighboring buildings was already conducted around November 2009, before the expropriation ruling date ( October 24, 2014). It is recognized that the residential environment in the business area in this case was very poor. In addition, the relocation measure system under the Public Works Act restores the previous residential condition to ensure the living environment of the person who is deprived of the base of livelihood due to the implementation of public works to guarantee the living environment at the same time, and at the same time, the plaintiff did not take into account the residential condition of the building in this case as part of the so-called compensation for the living environment in order to guarantee the living environment by the State, and the residential condition of the building in this case No. 2013. 4.

Therefore, the defendant is obliged to pay the resettlement money to the plaintiff.

(B)the amount of resettlement funds;

According to Article 53(2) of the Enforcement Rule of the Public Works Act, the resettlement subsidy shall be the amount equivalent to 30 percent of the appraised value of a residential building subject to compensation, but if the amount is less than 6 million won, it shall be 6 million won, and if the amount exceeds 12 million won, it shall be 1.2 million won.

In applying the above provision to the facts acknowledged earlier, since the settlement money to be paid by the Plaintiff is KRW 12,00,000 (101,910,360 for the assessed value of the instant housing recognized by the entry in the evidence No. 3), 30% = 30,573,108 won exceeds 12,00,000 won, the Plaintiff’s allegation in this part is with merit.

2) Determination as to the claim for relocation expenses

A) Occurrence of a duty to pay housing relocation expenses

(1) Article 78(5) of the Public Works Act provides that residents of a residential building shall be compensated by calculating and compensating expenses incurred in moving their residence and expenses incurred in transporting movable property, such as household effects, and Article 54(1) of the Enforcement Rule of the same Act provides that the owners of a residential building to be incorporated into a zone where public works are performed shall compensate for relocation expenses for two months according to the number of household members when compensating for the building in question; however, the same shall not apply to cases where the owners of the building do not actually reside in the building in question or where the building is an unauthorized building without permission. Since the relocation expenses do not have any reason to treat differently from the resettlement expenses, the owner of the building who does not continue to reside from the date of the public announcement of the improvement plan is not entitled to receive relocation expenses, but if he does not reside due to inevitable reasons similar to medical care due to disease, etc., he/she

(2) As to the instant case, the Plaintiff owned and resided in the instant rearrangement zone before the date of public inspection and announcement. However, as seen earlier, around October 20, 2008, which was prior to the date of expropriation ruling ( October 24, 2014), the date of expropriation, the date of expropriation ruling (the date of expropriation ruling) under the proviso of Article 40(3)2 of the Enforcement Decree of the Public Works Act, the Plaintiff did not reside in the instant project area and moved the residence before the date of expropriation. Therefore, the Defendant is obligated to pay the Plaintiff the relocation cost.

B) The amount of housing relocation expenses

Article 54(1) and (3) of the Enforcement Rule of the Public Works Act provides that the owner of a residential building to be incorporated in a zone where a public project is performed shall compensate for housing relocation expenses for two-months according to the number of household members when compensating for the building in question. As such, the Plaintiff acquired the right to claim the payment of housing relocation expenses on October 24, 2014, which is the date the expropriation is decided, and the housing relocation expenses shall be calculated on the basis of the monthly average household expenditure expenses by the number of household members of the urban workers of the district under the family survey statistics conducted and announced by the statistics collection agency under Article

When comprehensively considering the purport of the entire argument in the statement of No. 4 and the purport of the argument as to the instant case, the fact that the number of the Plaintiff’s household members at the time of October 24, 2014 can be recognized. According to the household survey statistics of April 2014 and April 4/2014, in the case of a household with four household expenses for which the monthly average household expenses of urban workers per household member in the Gu are four, the facts of the cause of No. 4,093,897 are significant in this court. Thus, the Plaintiff’s residential relocation expenses to be paid (=4,093,897 x two months) are 8,187,794 won.

Therefore, the defendant is obligated to pay to the plaintiff KRW 8,187,790 within the scope of the above KRW 8,187,794.

3) Part on the claim for director expenses

A) Occurrence of liability to pay director expenses

In light of the purport of Article 78(5) of the Public Works Act, Article 55(2) of the Enforcement Rule of the same Act, and the director’s expense (referring to expenses necessary for the transportation of movable property, such as household appliances) to facilitate the promotion of public works, and to protect residents who move their residence, a person eligible for compensation for director’s expense is a resident of a residential building to be incorporated in a zone where public works are performed (Supreme Court Decision 2010Du5332, Nov. 11, 2010) who is relocated due to the implementation of public works as a resident of a residential building (Supreme Court Decision 2010Du5332, Nov. 11, 2010), and the fact that the Plaintiff resided in a residential building in the project area of this case and relocated due to the implementation

B) The amount of directors’ expenses

Article 55 (2) of the Enforcement Rule of the Public Works Act provides that the resident of a residential building shall compensate for the directors' expenses calculated in accordance with the standards set forth in the attached Table 4, and according to the above [Attachment Table 4], the directors' expenses shall be the total amount of wages, vehicle fares, and packing expenses. The wages shall be based on the wages of ordinary employees in the construction sector prepared and published after obtaining approval from the statistics collection agency pursuant to the Statistics Act, and the vehicle fares shall be based on the 8-hour rates of truck, the maximum loading quantity of which is five tons per day, and the packing expenses shall be calculated by multiplying 0.15 by the amount calculated by adding the wages and vehicle fares.

In light of the following: (a) the Plaintiff claimed the cost of director based on the ordinary wage of ordinary workers for each occupation for the first half of 2012; (b) Article 78(5) of the Public Works Act; (c) Article 55(2) of the Enforcement Rule of the Public Works Act provides that “the owner of a residential building and the resident of a residential building” is “the resident of a residential building without distinction of the tenant; (d) facilitating the implementation of public works; and (e) calculating the cost of director based on the authorization for project approval in the case of a tenant; and (e) calculating the cost of director based on the authorization for project approval in the case of a tenant, the cost of director to be paid to the owner of a residential building should be

With respect to the instant case, the fact that the total floor area of the instant building in which the Plaintiff resided is 190.49 square meters (571.46 x 1/3). The fact that the daily wage per person of an ordinary part in the construction sector is 57,820 in the report on the fact-finding survey of construction works that applies on the date of the public notice of the authorization for the implementation of the instant project, and the fact that the daily fare of 8 hours per day of a truck with the maximum capacity of 5 tons in the same time is 10,000 won is significant in this court or that the overall purport of the pleadings is added to each entry in the evidence No. 1 (including each number).

According to the facts found above, the amount of director's expenses that the defendant is liable to compensate the plaintiff according to the standards for director's expenses under the above [Attachment Table 4] is 91,94 won (= wage of 462,560 won per person of the ordinary part of the construction work in 2007 x 57,820 won x 8) + vehicle freight of 400,000 won (i.e., freight of 8 hours per day of the truck with the maximum discretion of 5t x 100,000 won x 4 vehicles) + 129,384 won [number 4,560 won + vehicle freight of 40,000 x 0.15].

C. Sub-committee

Therefore, the Defendant is obligated to pay to the Plaintiff the resettlement money, the cost of moving a house, and the cost of moving a house (21,179,734) (i.e., the resettlement money of KRW 12,00,000 + the cost of moving a house + KRW 8,187,790 + the cost of moving a house + KRW 991,944).

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the scope of the above recognition and the remaining claims are dismissed as without merit. Since the judgment of the court of first instance is partially unfair with the conclusion, part of the plaintiff's appeal is accepted, and the part against the plaintiff corresponding to the above cited part of the judgment of first instance is revoked, and the payment is ordered to be ordered to the defendant. The remaining appeal of the plaintiff is dismissed as it is without merit.

Judges Kim Jong-ju (Presiding Judge)