Whether “a building removed following the implementation of public works” that is allowed to be relocated to an area other than a village district pursuant to Article 12(1)3-2 of the Act on Special Measures for Designation and Management of Development Restriction Zones includes a building already removed before March 16, 2012, the enforcement date of the said provision (negative)

Further to the language and purport of the proviso of Article 12(1)2 and 3-2 of the Act on Special Measures for Designation and Management of Development Restriction Zones (hereinafter “Development Restriction Zones”) and the proviso of Article 1 of the Addenda (amended by Presidential Decree No. 2010, Sep. 16, 201) it conforms to the language and text to interpret that “any building removed due to the implementation of public works” in the amended provision means any building yet to be removed at the time of the enforcement of the amended provision. The amended provision was newly established as of September 16, 201 by the Development Restriction Zones Act (Act No. 11054), which means the removal of the building in the development restriction zone within the development restriction zone (No. 2) or the relocation complex is constructed after removal of the building within the development restriction zone (No. 3) and the removal of the building has already been completed within the development restriction zone, and the removal of the building is likely to infringe on the ownership of the building within the development restriction zone without the expiration of the amended provision.

Article 12(1)2, 3, and 3-2 of the Act on Special Measures for Designation and Management of Development Restriction Zones, Article 1 of the Addenda ( September 16, 201), Article 1 of the Act on Special Measures for Designation and Management of Development Restriction Zones

Supreme Court Decision 2006Du16373 Decided April 13, 2007

Plaintiff (Law Firm Cheong, Attorneys Park Young-chul et al., Counsel for the plaintiff-appellant)

[Defendant-Appellee] Defendant 1 and 3 others (Law Firm Jeong, Attorney Park Si-young et al., Counsel for defendant-appellee

Seoul High Court Decision 2014Nu50042 decided December 9, 2014

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

The grounds of appeal are examined.

1. Article 12(1) of the Act on Special Measures for Designation and Management of Development Restriction Zones (hereinafter “Development Restriction Zones Act”) provides that a development restriction zone is prohibited from constructing a building, altering the purpose of use, installing a structure, altering the form and quality of land, cutting bamboo and trees, dividing land, piling up things, or implementing an urban/Gun planning project under subparagraph 11 of Article 2 of the National Land Planning and Utilization Act: Provided, That the proviso to Article 15 of the Act on Special Measures for Designation and Management of Development Restriction Zones (hereinafter “Land Compensation Act”) provides that a person who intends to remove a building in a development restriction zone into a village district designated pursuant to Article 15 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”) or a person who intends to remove a building removed by the implementation of public works pursuant to Article 4 of the Act on Compensation for Land, Etc. from the date of designation of a development restriction zone to a housing, factory, or a religious facility other than a village district (Article 3-2 of the Act or the Special Self-Governing Province Act);

In addition to the language and purport of the relevant provision, it is consistent with the language and text of the said provision to interpret that the term “building to be removed by the execution of public works” in the instant provision means a building which has not yet been removed at the time of the enforcement of the instant provision. ② The instant provision was newly established on September 16, 201 as the Act on the Development Restriction Zones was amended by Act No. 11054 on September 16, 201. Before that, where a building is relocated within a development restriction zone into a village district (No. 2) or a building is removed by public works and a relocation complex is constructed, it can be limited to the removal of the building within the village district (No. 3). However, in light of the fact that there is a high possibility of damage to the natural environment in the case of a building other than a factory, etc. subject to the foregoing restriction prior to the instant provision, it is difficult to view the new provision as having already been completed at the time of implementation of the instant provision as an area where the new provision was completed.”

2. The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following: (a) while the Plaintiff had constructed and operated the instant factory, etc. located within the development-restricted zone from around 1973, the Plaintiff was removed the instant factory, etc. and the Plaintiff received compensation for the instant factory, etc. as it was incorporated into the Defendant’s residential environment improvement zone around April 14, 1999; (b) the Plaintiff applied for a construction permit to permit the Defendant to construct a new factory and office on the land which was not designated as a village district among the development-restricted zones on June 11, 2013, after the enforcement of the amended provisions of this case, around June 14, 2013; and (c) the Defendant against the Plaintiff on June 14, 2013, the instant factory, etc. was removed after compensation on April 15, 199, as a removal of the instant building after the enforcement of the amended provisions.

3. Examining these facts in light of the legal principles as seen earlier, the instant factory, etc., which had already been removed prior to the enforcement of the instant amendment provision, cannot be deemed to constitute “a building to be removed due to the implementation of public works” as stipulated in the instant amendment provision, and thus, the instant disposition which rejected the Plaintiff’s application for building permit should be deemed lawful.

Nevertheless, the lower court determined otherwise that the instant disposition was unlawful on the ground that the “building removed following the implementation of public works” of the instant amendment provision includes a building for which removal was completed due to the implementation of public works prior to the implementation of the instant amendment provision. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of application of the instant amendment provision, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

4. Therefore, 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 Lee Ki-taik (Presiding Justice)