209Du9338 Revocation of Disposition of Disqualified for Relocation Measures

Park (O)

Seoul

Law Firm Doz.

Attorney Lee, Kim, Kim, Park, and Park

Es. Es.S.P

Seoul Gangnam-gu 14 - 5

Representative, President, Resident and Resident;

Law Firm Doz.

Attorney Park Jong-soo, Counsel for the plaintiff-appellant

Seoul High Court Decision 2008Nu27522 Decided May 12, 2009

October 29, 2009

The judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

According to Article 23 of the former Urban Development Act (amended by Act No. 8376 of Apr. 11, 2007), Article 78(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Public Works Act”), Article 40(3)2 of the Enforcement Decree of the Public Works Act, a project implementer shall establish and implement relocation measures or pay resettlement funds to a person who is deprived of his base of livelihood as a result of the implementation of an urban development project (hereinafter “person subject to relocation measures”), as prescribed by the Enforcement Decree of the Public Works Act, for a person who provides residential buildings due to the implementation of an urban development project (hereinafter “person subject to relocation measures”), but the owner of a building who has not resided in the relevant building from the date of public notification, etc. under the relevant Acts and subordinate statutes for public works to the date of conclusion or adjudication of expropriation. Comprehensively considering the language, content, legislative intent, etc. of each of the above provisions, the public works project implementer shall be deemed as a person subject to relocation measures (see Supreme Court Decision 2009Do198.

According to the reasoning of the judgment of the court of first instance, the court below cited the reasoning of the judgment of the court of first instance, etc.

11. The base date for the relocation measures of this case in the development project of Gangnam New Zealand including Pyeongdong on 20. 20

11. The fact that the defendant was determined and announced as of October 19, 2004, and thereafter as of the base date of the relocation measures of this case, the defendant continued to reside in the house concerned or to reside in the house concerned until the date of conclusion of the contract or the date of expropriation decision within the project zone prior to the base date of the relocation measures of this case before the base date of the contract or the date of expropriation, and the owner of the house on his own land who is no longer in the project zone as of the base date of the relocation measures of this case shall be subject to relocation measures, and again, after acquiring the house within the project zone after the base date of the relocation measures of this case and continuously resided in the house concerned from the base date of the compensation plan to the date of conclusion of the contract or the date of expropriation decision of the purchase of the house, and as of the base date of the relocation measures of this case, the plaintiff shall be entitled to relocation measures from the base date to the "owner of the house as of the date of the public announcement of the compensation plan" as of 10.5.

After entering into a contract with the defendant for expropriation consultation, the defendant voluntarily emigrateed and applied for the selection of the person subject to relocation measures to the defendant. However, on June 13, 2007, the defendant acknowledged that the plaintiff moved into the house of this case after the date of relocation measures, and the plaintiff's spouse acquired one bond separately on October 13, 2003, and made a notification of non-resident relocation measures to the plaintiff (the disposition of this case) on the ground that the plaintiff's spouse was disqualified

Based on the above facts, the court below, based on the criteria for the relocation measures of this case, selected the person who is obligated to establish and implement the relocation measures of this case from among the persons subject to the relocation measures of this case, and decided on the relocation measures of this case from the date of February 15, 2006, which is not the person who is not the person subject to the relocation measures of this case as of November 20, 2002, but the person who acquired the housing within the project area of this case as of February 15, 2006, which is the date of the public announcement of the indemnity plan, as the relocation measures of this case. The court below determined that the measure of this case cannot be viewed as legitimate as the relocation measures of this case since it did not meet the requirements for the relocation measures of this case under Article 40 (3) 2 of the Enforcement Decree of the Act on the Relocation Measures of Residents since it did not meet the criteria for the relocation measures of this case as of November 20, 202.

In light of the above legal principles, the court below held that the base date of the relocation measures of this case without any legal basis does not fall under the "date of public notice under the relevant laws and regulations for public works" under Article 40 (3) 2 of the Enforcement Decree of the Public Works Act, and that the person who is not the person subject to the relocation measures of this case and the person who is not the person subject to the relocation measures of this case should be determined as of February 15, 2006, which is the date of public notice of the plan for the relocation measures of this case, shall be justified. However, the court below held that the plaintiff did not fall under the person subject to the relocation measures under the laws and regulations as of the date of public notice of the plan for the relocation measures of this case because the plaintiff did not meet the requirements of the person subject to relocation measures under Article 40 (3) 2 of the Enforcement Decree of the Public Works Act as of

In other words, even according to the decision of the court below, the plaintiff moved into the house of this case on February 15, 2006, before the date of the public notice of the above compensation plan, and entered into an agreement for expropriation consultation with the defendant on July 25, 2006 and went voluntarily thereafter. Accordingly, if the public notice of the above compensation plan is deemed to be "the date of public notice, etc. under Article 40 (3) 2 of the Enforcement Decree of the Public Works Act" as "the date of the public notice, etc. under Article 40 (3) 2 of the Enforcement Decree of the Public Works Act, the plaintiff shall continue to reside from the above date of the public notice of the compensation plan until the date of conclusion of the

In addition, as of February 15, 2006, the date on which the plaintiff announced the compensation plan, the person subject to the relocation measures under the relevant laws and regulations such as Article 40(3)2 of the Enforcement Decree of the Public Works Act as of February 15, 2006 shall meet the requirements for the relocation measures, as well as the decision of the court below,

As a result, inasmuch as the Plaintiff is included in the subject of the relocation measures as a group of persons who acquired the housing within the instant project zone, the issue of whether to establish and implement the relocation measures, to pay the resettlement funds, and to supply the apartment houses in the area where the relocation measures are established and implemented, it shall be interpreted as additional requirements to determine whether the Plaintiff constitutes a person subject to the relocation measures, and thus, it shall not be again excluded the Plaintiff from the subject of the relocation measures.

Nevertheless, the court below rejected the plaintiff's claim seeking revocation on the ground that the disposition of this case, which notified the plaintiff as disqualified for relocation measures, was lawful. Thus, the court below erred by misapprehending the legal principles as to a person subject to relocation measures under the Public Works Act, which affected the conclusion of the judgment. Therefore, the plaintiff's appeal pointing this out has merit.

Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Young-chul

Justices Park Jong-hwan

Jeju High Court Justice Ahn Dai-hee

Justices Cha Han-sung