[1] In the case of a special supply of national housing, etc. to the owners of removed houses under Article 19(1)3 of the Rules on Housing Supply, whether the project implementer has discretion in determining the quantity of the national housing to be supplied and the persons to be supplied (affirmative)

[2] Whether it is unreasonable for a project operator to select a person subject to relocation measures under Article 78(1) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, Article 40(2) of the Enforcement Decree of the same Act, and Article 19(1)3 of the "Rules on Housing Supply" to regard the selection of the person subject to relocation measures as illegal on the basis of the purpose of the building recorded in the public register (negative)

[3] In a case where an urban planning project implementer excluded a building from the object of the special supply of national housing on the ground that its use in the building register of a building to be removed in the project site is not a residential building, not a residential building, the case holding that the disposition is not unlawful

[1] Special supply of national housing, etc. for the owners of removed houses under each item of Article 19(1)3 of the "Rules on Housing Supply" enacted with the delegation of the Housing Act, has the nature of replacing relocation measures to be implemented by a project implementer under Article 78(1) of the "Act on Acquisition of and Compensation for Land, etc. for Public Works Projects" and the proviso of Article 40(2) of the Enforcement Decree of the same Act for those who lose their base of livelihood as a result of the provision of residential buildings due to the implementation of public works for the purpose of providing residential buildings. The project implementer shall either select a person who is obligated to establish and implement relocation measures among the persons subject to relocation measures, or have discretion to determine the contents, quantity, etc. of housing to be supplied to them. To this end, the criteria set by the project implementer shall be respected unless there are special circumstances that are objectively unreasonable or unreasonable.

[2] In the case of selecting a person who is obligated to establish and implement measures for relocation among those subject to measures for relocation as stipulated under Article 78(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, the proviso of Article 40(2) of the Enforcement Decree of the same Act, and Article 19(1)3 of the Regulations on Housing Supply, the project implementer’s discretion should be respected unless there are circumstances deemed to be especially unreasonable. As such, the project implementer has the discretion to determine the number of national housing to be supplied and the eligible person within a reasonable scope by comprehensively taking into account various circumstances, such as the type and nature of the pertinent public project, the nature of the project, the financial situation, etc. of the relevant person, the scale and form of the project, and whether separate compensation for losses, other than compensation for the building and its accessory thereto, are provided. However, it is difficult to view that the relocation measures system under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects has an aspect of livelihood compensation following the removal of a residential building, other than compensation for the building and its accessory thereto.

[3] In a case where an urban planning project implementer excluded a building from the object of the special supply of national housing on the ground that the purpose of the building ledger, which is a special supply requirement under Article 5 (1) 2 of the "Rules on Special Supply of National Housing to the Residents of the Seoul Special Metropolitan City", is not a "residential facility", the case holding that the disposition is not unlawful since it exercised the discretionary power within the reasonable scope as a project implementer.

[1] Article 19(1)3 of the Rules on Housing Supply / [2] Article 78(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects; Article 40(2) of the Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects; Article 19(1)3 of the Rules on Housing Supply / [3] Article 78(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects; Article 40(2) of the Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects; Article 19(1)3 of the Rules on Housing Supply

[1] Supreme Court Decision 2004Du7481 Decided February 22, 2007 (Gong2007Sang, 505) Supreme Court Decision 2006Du8495 Decided November 29, 2007 (Gong2007Ha, 2053) Supreme Court Decision 2008Du12610 Decided March 12, 2009 (Gong2009Sang, 475)

Plaintiff (Law Firm Rate, Attorneys Shin Sung-sung et al., Counsel for the plaintiff-appellant)

The head of Gangseo-gu Seoul Metropolitan Government (Law Firm Han, Attorneys Kim Jong-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2008Nu33183 decided June 2, 2009

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

The special supply of national housing, etc. for the owners of removed houses under each item of Article 19(1)3 of the Rules on Housing Supply, which was enacted with the delegation of the Housing Act, is a substitute for the relocation measures conducted by a project operator pursuant to Article 78(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Public Works Act”) and the proviso of Article 40(2) of the Enforcement Decree of the same Act for the persons who lose their base of livelihood as a result of the provision of residential buildings due to the implementation of public works (see Supreme Court Decision 2006Du8495, Nov. 29, 2007). The project operator has the discretion to select or select a person who is required to establish and implement the relocation measures among the persons subject to the relocation measures, or to determine the contents, quantity, etc. of housing to be supplied to them, and the criteria set by the project operator should be respected unless there are any special circumstances that are objectively unreasonable or unreasonable (see Supreme Court Decision 200Du84681, Feb. 29, 20007).

According to the evidence duly admitted by the court below, the plaintiff, the owner of the building of this case with 6.12 square meters of the 1st, which was newly constructed and used for the original purpose as well as 6.12 square meters of the 2nd floor, was changed to neighborhood living facilities around March 26, 2001, and the alteration of urban planning facilities (cultural facilities) at March 29, 2007 at the time of using the 207-7th public notice of Gangseo-gu Seoul Metropolitan Government (Seoul Metropolitan Government public notice No. 2007-36), and the compensation procedure was initiated under the National Housing Act by being included and expropriated in the site of the cultural facility project as indicated in the judgment of the court below. The plaintiff, as a result of the plaintiff's implementation plan's new construction of the 2nd 2nd 2nd 2nd 7th 200 square meters of the above 2nd 2nd 7th mix of the above 2nd mix of the above residential building.

Based on the above facts, the lower court determined that the instant disposition was lawful on the ground that the instant building was recognized as a restaurant which is not the main purpose of its use until the date of the above implementation plan modification, in light of the content of Article 78(1) of the Public Works Act, Article 19(1)3 of the Rules on Housing Supply, and the purpose of the above relocation measures system, regardless of the entry in the public register, such as the building management ledger, and the actual purpose of its use is only a residential purpose, regardless of the entry in the public register on the building management ledger.

However, according to the aforementioned legal principles, relevant statutes, regulations, etc., the selection of a person who is obligated to establish and implement measures for relocation among those subject to measures for relocation as stipulated in Article 78(1) of the Public Works Act, the proviso of Article 40(2) of the Enforcement Decree of the same Act, and Article 19(1)3 of the Rules on Housing Supply should be respected unless there are circumstances to deem that the exercise of the project implementer’s discretion is particularly unreasonable. Thus, a project implementer shall have discretion to determine the volume of national housing to be supplied within a reasonable scope by comprehensively taking into account various circumstances such as the type and nature of the pertinent public work, business situation, and other financial conditions, the scale and form of the person subject to the project, and whether a separate compensation is provided, other than the compensation for losses to the building and its appurtenances. In light of the aforementioned legal principles, it is difficult to view that the relocation measures system under the Public Works Act has an aspect of livelihood compensation following the removal of a residential building, other than the compensation for losses to the building and its appurtenances, as a whole regulation related to the use of the building.

Therefore, unlike Article 5 (1) 2 of the above Special Supply Rule, the Defendant, a project operator, used the public register as a basis for exercising its discretionary power, and actually used it as commercial facilities as well as neighborhood living facilities, and the Defendant’s disposition of this case, which excluded the building of this case, which had been compensated for as a special supply of national housing, does not exceed the scope of exercising its discretionary power as a project operator. Although the building of this case is partially used as part of a restaurant business, it is difficult to view that this case’s building constitutes a special circumstance that can be exceptionally excluded from the application of the above criteria on the ground that it has been used as part of a restaurant business.

Although the lower court determined that the instant building is not subject to the special supply of national housing, it is justifiable to dismiss the Plaintiff’s claim, the inappropriate part in its reasoning is justified.

The judgment of the court below is not erroneous in the misapprehension of legal principles as to the selection of a person subject to relocation measures regarding the Public Works Act.

The remaining arguments in the grounds of appeal are merely disputing the fact-finding by the lower court which belongs to the full power of the fact-finding court and do not constitute legitimate grounds of appeal.

Therefore, the appeal is 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 Yang Chang-soo (Presiding Justice)