[1] In a case where an urban renewal promotion zone is designated to implement an urban environment improvement project under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents in an urban renewal acceleration district pursuant to a special Act for the promotion of urban renewal, whether the requirements for designation should be determined according to the concept and scope of old and inferior buildings under Article 2 subparag. 3 of the Act on the Maintenance

[2] Whether the removal of a building is inevitable due to aging under Article 2 subparagraph 3 (c) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents immediately after the expiration of a certain period such as 20 years after the completion of construction (negative)

[1] Articles 9(1), 12, and 13 of the former Special Act on the Promotion of Urban Renewal (Amended by Act No. 10761, May 30, 201); Article 2 subparag. 3 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 11293, Feb. 1, 2012) / [2] Article 2 subparag. 3(c) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 11293, Feb. 1, 2012); Article 2(2) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Presidential Decree No. 23718, Apr. 10, 2012)

[2] Supreme Court en banc Decision 2010Du16592 Decided June 18, 2012 (Gong2012Ha, 1296)

Plaintiff 1 and one other (Law Firm Won, Attorneys Lee Do-g et al., Counsel for the plaintiff-appellant)

Seoul Special Metropolitan City Mayor

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

Seoul High Court Decision 2011Nu38515 decided June 5, 2012

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

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

The former Special Act on the Promotion of Urban Renewal (amended by Act No. 10761, May 30, 201; hereinafter “former Urban Renewal Promotion Act”) provides that the head of a Si/Gun/Gu shall establish an urban renewal acceleration plan which includes matters concerning the designation of an urban renewal acceleration zone, such as urban renewal acceleration project, which can be implemented by individual laws, such as urban renewal acceleration projects under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”) in an urban renewal acceleration district, and shall require the Mayor/Do Governor to apply for a decision (Article 9(1)). If a Mayor/Do Governor determines and announces the urban renewal acceleration plan accordingly, the designation of an improvement zone under Article 4 of the Urban Improvement Act shall be determined in accordance with the concept of old and inferior structures and the scope of the requirements for designation under Article 2 subparag. 3 of the Urban Renewal Promotion Act (Articles 12 and 13).

Meanwhile, Article 2 subparag. 3(c) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 23718, Apr. 10, 2012; hereinafter the same) provides that “a building that may be prescribed by municipal ordinance of a City/Do” under Article 2 subparag. 3(c) of the same Act refers to a building falling under any of the following subparagraphs, and stipulates that “a building that may be prescribed by municipal ordinance of a City/Do” under Article 2 subparag. 1 of the same Act refers to a building, the removal of which is inevitable due to its functional defect, structural defect due to defective construction or deterioration, etc., as prescribed by municipal ordinance of a City/Do, as prescribed by Presidential Decree.” Article 2(2) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 23718, Feb. 1, 2012; hereinafter the same shall apply) refers to a building:

As can be seen, the purport of Article 2 subparag. 3(c) of the former Act and its Enforcement Decree provides that a building, the period of which is prescribed by municipal ordinance within 20 years after its completion (hereinafter “20 years after its completion”) as one of “a building, the removal of which is inevitable due to structural defects, etc. caused by aging shall be deemed to have been deteriorated in proportion to the building after the lapse of a certain period after its completion, and the possibility of structural defects, etc. may occur accordingly. Therefore, in determining whether the removal under Article 2 subparag. 3(c) of the former Enforcement Decree of the Act constitutes an inevitable worn-out or inferior building, it shall be deemed that it was presented as one of the various standards, which are the signs of aging and inferior, and if 20 years have passed after its completion only after its completion, it shall not immediately constitute “a building that is inevitable due to structural defects caused by aging, etc.” as provided by the former Act and the Enforcement Decree of the Act.

Ultimately, Article 2 subparag. 3(c) of the former Act and Article 2(2)1(c) of the Enforcement Decree thereof “a building that can be inevitably removed due to structural defects, etc. caused by deterioration of the building” means a building for which 20 years have passed since its completion and its removal is inevitable due to deterioration, structural defects, etc. (see Supreme Court en banc Decision 2010Du16592, Jun. 18, 2012).

According to the reasoning of the judgment of the court of first instance as cited by the court below and the records, the defendant, on April 22, 2010, determined an urban renewal acceleration plan for the second stage section of the urban renewal acceleration district, which is a new and sublime, pursuant to Article 2010-43 of the Seoul Metropolitan Government Public Notice, and issued a disposition designating the area of 23,036 square meters for the urban renewal acceleration district as a creative8 urban renewal acceleration district for the purpose of the urban renewal acceleration district. The defendant met the requirements for designation of the urban renewal acceleration district as a building for which 20 years have passed since only the number of years elapsed since the completion of the building was completed, and the term of the building, which has expired under the subparagraphs of Article 3 (1) of the Seoul Metropolitan Government Ordinance on the Urban and Residential Environment Improvement (Seoul Metropolitan City Ordinance No. 4949), constitutes an "building, which is inevitable due to structural defects, etc. caused by aging, etc." under Article 2 subparagraph 3 (c) of the former Urban Improvement Act.

Nevertheless, without examining whether removal is an inevitable building, the lower court rejected the Plaintiffs’ assertion on the ground that the instant disposition that judged only the number of years elapsed after the completion of the building cannot be deemed unlawful. In so doing, the lower court erred by misapprehending the legal doctrine on standards for determining deteriorated and inferior buildings under the Urban Improvement Act, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal pointing this out is reasonable.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)