208Guhap7205 Revocation, etc. of Disposition of Rejecting the Special Supply of National Housing

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1. The head of Dongdaemun-gu Seoul Metropolitan Government;

2. SPS Corporation;

April 16, 2008

May 21, 2008

1. The plaintiff's action against the defendant SP Corporation shall be dismissed.

2. Special supply of national housing by the head of Dongdaemun-gu Seoul Metropolitan Government to the Plaintiff on August 3, 2007

The rejection disposition shall be revoked.

3. Of the litigation costs, the part incurred between the Plaintiff and the head of Dongdaemun-gu Seoul Metropolitan Government is the above Defendant.

The costs incurred between the Plaintiff and Defendant SP Corporation shall be borne by the Plaintiff.

Pursuant to Paragraph 2 of the Disposition and the Disposition of Refusal against the plaintiff's moving-in housing (referring to housing units and housing units) shall be revoked.

1. Details of the disposition;

The following facts may be acknowledged in each entry in Gap evidence 1 and Eul evidence 5, unless there is a dispute between the parties, or by integrating the whole purport of the pleadings:

A. The plaintiff is the owner of the building of this case located in Dongdaemun-gu Seoul Metropolitan Government, and the head of Dongdaemun-gu Seoul Special Metropolitan City Mayor (hereinafter "the head of the defendant Gu") incorporated the building site of the building into the site of urban planning facilities for "Yandong Park Construction Project" on September 29, 2001, and removed the building of this case from the plaintiff after acquiring through consultation.

B. On December 24, 2003, the Plaintiff submitted an application for special supply of the national housing to the head of the Defendant for the special supply of the national housing with 85m "Osan" and '85m'. However, the Defendant, on August 3, 2007, should be a homeless household as of the date of the application for special supply, in order to be selected as the Plaintiff as a person eligible for special supply of the national housing. However, the Plaintiff notified the Plaintiff to the effect that the special supply of the national housing is not possible on the ground that he owns the housing as of the date of application for special supply and does not constitute a homeless household (hereinafter referred to as the "disposition of this case"). As such, the Plaintiff excluded the Plaintiff from the determination of the number of housing units and units of the national housing unit (hereinafter referred to as the "Defendant Corporation") by excluding the Plaintiff (hereinafter referred to as the "Defendant Corporation") at around that time.

2. Whether the Plaintiff’s lawsuit against the Defendant Corporation is lawful

According to Article 9 (1) of the former Rules on the Special Supply of National Housing to the removed residents of the Seoul Special Metropolitan City (amended by Presidential Decree No. 3616, Apr. 10, 2008; hereinafter referred to as the "former Rules on Special Supply"), a person subject to special supply of national housing may file an application for special supply of national housing with the head of the competent Gu. In the event that a person subject to special supply is determined by such application, the President of the Urban Development Corporation pursuant to Article 12 (1) of the said Rules shall make a decision on the housing unit (house unit and unit of housing) to the extent that it can be supplied to the person subject to special supply within the extent of the available quantity. According to the purport of the above provision, a person subject to special supply of national housing has the right to apply for the special supply of national housing to the head of the competent Gu, but the defendant Corporation shall determine the housing unit by drawing lots, etc. according to the determination of the person subject to special supply, and it shall not be deemed legitimate for the plaintiff to request the Corporation as above rejection.

A. The plaintiff's assertion

According to Article 19(1) of the former Rules on Housing Supply (amended by Presidential Decree No. 577 of Aug. 24, 2007; hereinafter referred to as the "former Rules on Housing Supply"), to become a person eligible for special supply of national housing, the requirement of "non-resident as of the date of the public announcement of invitation of invitation of residents" is that Article 5(1) of the former Rules on Special Supply requires "not to own any other house than the house demolished as of the date of special supply application," and therefore, the criteria period for determining the requirements for non-resident housing is different. Since Article 5(1) of the former Rules on Special Supply does not constitute "the date of application for special supply by strengthening the criteria for determining non-resident housing than the date of public announcement of invitation of residents under Article 19(1) of the former Rules on Housing Supply, it is invalid since it violates the former Rules on Housing Supply, which is a higher law, and it is unlawful for the Plaintiff to acquire the above 20th anniversary of the date of application for the public announcement of non-resident 30.

(b) Related statutes;

As shown in the attached Form.

(c) Facts of recognition;

The following facts may be acknowledged in the absence of dispute between the parties, or by integrating the whole purport of the pleadings in each entry in Gap evidence 1, Eul evidence 1 through 5, and Eul evidence 1 through 4:

(1) On September 18, 2002, the Plaintiff was notified by the head of the Defendant to the effect that he was determined as a person eligible for the special supply of national housing pursuant to Article 5(5) of the former Rules of Special Supply, and applied for a special supply of national housing in the Ansan District under Article 9(1) of the former Rules of Special Supply (at the time of the above application, the Plaintiff distributed the principal when applying for the special supply of national housing as of the date of the application for the supply, and submitted a non-housing pledge (No certificate No. 5) to the effect that the Plaintiff is aware that all his spouse and household members do not own the housing as of the date of application for the special supply of national housing.

(2) On February 9, 2006, pursuant to Article 9(3) of the former Special Supply Rules, the Defendant Corporation asked the head of the Defendant to notify the head of the Si/Gun/Gu of the result of the computerized inquiry about the housing ownership by applicants for special supply, to determine whether they are subject to the special supply of national housing for the person notified as the housing owner. The Defendant head of the Gu sent a reply to the purport that on May 30, 2006, the Defendant Company “A, the Plaintiff’s wife, acquired a house located in Sungnam-si on August 25, 2003, and the Plaintiff does not constitute a homeless household as of the date of application for the special supply of national housing, and thus, the Plaintiff does not constitute a person eligible for the special supply of national housing.”

(3) Article 5 (1) of the former Rules on the Special Supply of National Housing to the removal citizens of Seoul Special Metropolitan City (amended by Presidential Decree No. 3305 of March 31, 2003) does not have a different date for the standard of determining the requirements for the homeless generation. However, Article 5 (1) of the former Rules on Special Supply which was amended by Rule No. 3305 of March 31, 2003 stipulates "the date of application for special supply" as the standard of determining.

(4) On the other hand, the recruitment announcement date of the National Housing in the Mountain District was February 12, 2003, and the head of the defendant did not notify the original High Court of the purport that the Special Rules on National Housing Supply to the Residents in the Seoul Special Metropolitan City was amended as above. A, the plaintiff's wife, acquired the housing located in Sungnam-si on August 25, 2003, after the said amendment.

D. Determination

(1) The "Rules on the Special Supply of National Housing to the Residents of the Seoul Special Metropolitan City (autonomous Gu)" is merely an internal standard and procedure for the special supply of national housing to the people by exercising discretionary authority granted by the Housing Act and the regulations on housing supply, and does not externally bind the people or the court (see Supreme Court Decision 2006Du8495, Nov. 29, 2007, etc.). Thus, if the special rules on the supply of national housing to the removal residents of Seoul Special Metropolitan City clearly violate the contents and purport of the regulations on housing and housing supply, the act cannot be immediately deemed lawful on the sole basis of the fact that the acts of the administrative agency were followed, and it is reasonable to deem that the discretionary power was violated in the formation of the standards and regulations on housing and housing supply, and thus, the subsequent disposition is also unlawful.

(2) As seen earlier, the Plaintiff was the head of a homeless household as of February 12, 2003, which was the date of the public announcement of the recruitment of national housing. However, the Plaintiff owned the head of a household through the wife as of December 24, 2003, which was the date of application for special supply of national housing. Accordingly, the Defendant head of the Gu determined whether the head of the household is a head of a homeless household as of the date of application for special supply as stipulated in Article 5(1) of the former Rules of Special Supply, and issued the instant refusal disposition, deeming that the Plaintiff does not constitute a head of a homeless household.

Article 19 (1) of the former Rules on Special Supply of Housing provides that "the time of determination as a non-resident shall be determined by the public announcement date of recruitment of occupants" while Article 5 (1) of the former Rules on Special Supply provides that "the date of application for special supply" shall be "the date of public announcement of recruitment of occupants", and thus, even if the special supplier of national housing satisfies the requirements of non-resident owners as of the date of public announcement of recruitment of occupants, he/she becomes eligible for special supply if he/she acquires a house from that time to the date of public announcement of national housing until the date of application for special supply, he/she becomes eligible for special supply if he/she acquires a house from that time to the date of application for special supply. Accordingly, Article 5 (1) of the former Rules on Special Supply of Housing, which sets the time of determination as the date of application for special supply, increases the requirements of the standard of determination under the former Rules on Special Supply of Housing, so it is unlawful in itself.

In addition, the following circumstances revealed in the above facts, i.e., the defendant, after notifying the plaintiff on September 18, 2002 of the decision of the person to be specially supplied national housing, the head of the Gu did not notify the plaintiff of this purport separately, and it appears that the plaintiff acquired the housing without knowing this purport, even if the plaintiff knew of the purport of the above amendment through the submission of a written pledge at the time of the application for special supply, so long as the head of the Gu did not notify the plaintiff before the acquisition of the above purport, the plaintiff would have acquired the housing because he believed that he would not affect the qualification as the person to be specially supplied, and the defendant head of the Gu did not unilaterally refuse the plaintiff's application for special supply by applying the judgment criteria under Article 5 (1) of the former Special Supply Rules against the upper-tier laws and regulations, and if he did not unfairly infringe the plaintiff's trust.

(3) Therefore, the instant refusal disposition, which the Plaintiff deemed to not be a homeless-household, is unlawful.

3. Conclusion

Therefore, the plaintiff's lawsuit against the defendant corporation is dismissed as it is unlawful, and the plaintiff's claim against the head of the Gu is reasonable, and it is so decided as per Disposition.

Judges Kim Yong-chul

Judges Choi Jong-chul

Judges Song Jae-chan

Related Acts and subordinate statutes

Housing Act

Article 38 (Supply of Housing) (amended by Act No. 8863 on February 29, 2008)

(1) A project operator (including a project owner who constructs and supplies facilities and housing other than housing in excess of the number of units under Article 16 (1) as the same building with a building permit granted under Article 8 of the Building Act; hereafter the same shall apply in this Chapter) shall construct and supply housing as prescribed by each subparagraph of large volume.

1. A project undertaker (excluding the State, a local government, and a local government-invested public corporation) shall obtain approval from the head of a Si/Gun/Gu (in cases of welfare facilities, the reporting shall be made; hereinafter the same shall apply) under the conditions as prescribed by the Ordinance of the Ministry of Construction and Transportation;

2. Where a project operator intends to supply housing to be built, he/she shall meet the conditions for the recruitment of occupants, methods and procedures for the recruitment of occupants, methods and procedures for paying occupancy fees (referring to the price of housing to be paid by prospective occupants to a project operator; hereinafter the same shall apply), timing and procedures for paying occupancy fees, methods of concluding a housing supply contract, etc.,

3. Where a project undertaker intends to supply housing, he/she shall separately present the price of the part excluding the studio room, lighting fixtures, etc. for the main use of the floor in remote areas under the conditions as prescribed by the Ordinance of the Ministry of Construction and Transportation, and allow occupants

(2) Any person who intends to acquire a house shall obtain a house suitable for the eligibility for residents, restriction on lottery, supply order, etc. as determined by the Ordinance of the Ministry of Construction and Transportation.

Rules on Housing Supply (amended by Ordinance No. 577 of August 24, 2007)

Article 2 (Definitions)

The definitions of terms used in these Rules shall be as follows:

4. The term "supply" means the portion of housing and welfare facilities subject to the application of Article 38 of the Housing Act (hereinafter referred to as the "Act").

- means the volume or lease.

5. The term "national housing, etc." means the national housing under subparagraph 3 of Article 2 of the Act, and the State, local governments, the Korea National Housing Corporation, or local areas;

Local public corporations established for the purpose of housing projects under Article 49 of the Public Enterprise Act (hereinafter referred to as the "local public corporations").

(a) Housing built by the Corporation and public constructed rental housing under subparagraph 1 (c) of Article 2 of the Enforcement Decree of the Rental Housing Act;

The term “housing” means housing of not more than 85 square meters.

8. The term "household" means the householder of a household comprised of his spouse, lineal ascendant or descendant, or his lineal ascendant or descendant under the resident registration card of the household;

(proviso). (Omission of the proviso)

9. For the purpose of this Article, the term “non-household household owner” means any tax in which all members of the household (including the householder omitted) including the householder own the house;

representative householder means the representative householder.

Article 19 (Special Supply of Housing)

(1) Where a project undertaker constructs and supplies housing for national housing, etc., he/she shall invite occupants, notwithstanding Article 4.

A head of a homeless household who falls under any of the following subparagraphs as of the date of public announcement shall be 10 percent of the construction volume:

(proviso) Special supply may be made within the extent of this Act.

3. Any of the following housing (a person holding a house omitted), who is a Special Metropolitan City Mayor, Metropolitan City Mayor, or City Mayor:

A person approved by the head of a Gun.

(a) Removal for the relevant housing construction project by the State, a local government, the Korea National Housing Corporation, or a local public corporation;

housing to be

(c) Where a project undertaker constructs housing after being supplied with a housing site created by a public project, the relevant public project;

housing demolished for the enforcement of this Act;

(c) Urban planning projects (excluding housing redevelopment projects and housing reconstruction projects under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents;

(iii) the houses removed.

(d) Housing demolished due to a disaster; and

(e) A party due to a serious defect caused by a Mayor/Do Governor, the Korea National Housing Corporation, or a local public corporation in a housing-related structure, etc.;

Housing for which relocation and removal are deemed necessary for the protection of residents of the sea.

4. Houses falling under subparagraph 3 and housing redevelopment projects under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents.

The tenant of a house shall be publicly notified for the relevant project pursuant to related Acts and subordinate statutes, or shall be affected by a disaster.

A person who has resided for not less than three months at the present. In such cases, only rental housing may be supplied.

Article 1 (Purpose) of the Special Rules on Supply of National Housing to the Residents of Seoul Metropolitan Government (amended by Rule 3616 of April 10, 2008) (Purpose)

The purpose of these Rules is to promote the residential stability of citizens by prescribing the standards and procedures necessary for the special supply of national housing, etc. and the supply of housing for temporary relocation to residents of housing subject to remodeling projects to the removed residents who are subject to the provisions of Article 19(1)3 and 4 of the Rules on Housing Supply (hereinafter referred to as the "Supply Rules")

Article 2 (Definitions)

(1) The definitions of terms used in these Rules shall be as follows:

1. The term " removed citizens" means the Si (including SH projects and autonomous Gus; hereinafter referred to as the "Si") / Seoul Special Metropolitan City (including SH projects and autonomous Gus;

Promotion of urban planning projects and civil apartment rearrangement projects (hereinafter referred to as "projects") or various disasters, etc.

owner of a house removed by reason of such removal.

2. The term “ removed tenants” means the household owners who live on a leased house which is removed by the removed tenants;

3. The term " householder" means a householder as referred to in subparagraph 8 of Article 2 of the Supply Rules; and

4. The term “household having no houses” means the householder as prescribed in subparagraph 9 of Article 2 of the Supply Rules.

7. The term “national housing, etc.” means the housing under the provisions of subparagraph 5 of Article 2 of the Supply Rules;

Article 3 (Scope of Application)

Except as otherwise expressly provided for in other Acts and subordinate statutes, this Rule shall apply to the special supply of national housing, etc. to the removed residents arising from the promotion of projects or disasters implemented by the Seoul Special Metropolitan City (including SH projects and the autonomous Gu and the Seoul Metropolitan Office of Education; hereinafter referred to as the "Si") (proviso omitted).

Article 5 (Objects of Supply)

(1) Persons eligible for special supply of national housing, etc. shall be those who fall under any of the items of subparagraph 1 and items of subparagraph 2 as removed residents or removed tenants unless they own other houses than those to be removed as of the date of application for special supply: Provided, That with respect to removed tenants falling under subparagraph 1 (b), only rental housing shall be supplied:

1. Persons to be specially supplied;

(a) Date of public announcement of authorization for project implementation (the date of public announcement of authorization for project implementation; where compensation has been made earlier, the date of public announcement of compensation

(c) the owner of a building removed from this time to the date of compensation.

(c) Registration of resident registration in a building which has been demolished for not less than 3 months until the date of authorization for project implementation or disaster;

Any person who has actually resided and actually resided in the household with no house owner (acquisition and acquisition of land for public works and others);

Those who receive housing relocation expenses under the provisions of Article 54 of the Enforcement Rule of the Compensation Act shall be excluded.

(c) The owners of civil apartments removed for the project who comply with the consultation compensation. In such cases, the consent rate shall be 80%.

shall not be less than

(d) Unauthorized development housing in a civil apartment (limited to housing registered and managed by the head of the competent Gu on the management card);

(C) the owner of a house generated before April 13, 1983 removed under the City rearrangement plan.

2. Requirements for special supply;

(a) A householder notified by a project implementer to file an application for special supply of national housing, etc. as of the date of notification;

any person registered as a resident in the jurisdiction of the Special Metropolitan City.

(b) Housing which a removed building is registered as a residence in the building management ledger, or in charge of the head of the competent Dong and competent Gu/Gu office;

Article 2 of the Seoul Metropolitan Government Ordinance on Urban Redevelopment Project, the main purpose of which is confirmed as residential as a result of the joint investigation by the director

In the case of an unauthorized building under subparagraph 1:

(5) The head of the Gu shall, when he decides to be specially supplied with the national housing, etc. under paragraphs (1) through (4), notify the relevant person thereof without delay.

Article 9 (Application for Supply)

(1) A person subject to special supply of national housing, etc. under Article 5 shall apply for special supply of national housing, etc. with the following documents prepared within six months from the date the head of the Gu is notified of such person:

1. Two copies of an application for special supply (attached Form 1);

2. One copy of a certificate of the personal seal impression (for subscription for national housing);

3. One copy of resident registration (the head of a household who is separated from his spouse shall add a copy of resident registration of his spouse);

(2) The head of the competent Gu shall, upon receipt of an application for special supply of national housing, etc., prepare a list of special supply applications (attached Form 3 and Form 4) and notify the urban development project, without delay, along with a list of the applications for special supply, and prepare a register of special supply applications (attached Form 2) and record and manage the changes, etc. until the special supply is completed.

(3) The Urban Development Corporation shall, after registering a list notified under paragraph (2) in an electronic form, inquire into whether a house is owned or not, and notify the head of the competent Gu of the result thereof.

(4) The head of the competent Gu may extend the time limit for application with the approval of the head of the competent Si where there is a reasonable reason for a person subject to special supply, such as national housing, to file an application.

Article 11 (Determination of Supply)

(1) The head of the competent authority shall examine the results of the computer inquiry notified under Article 9 (3), the conditions of special supply of national housing, etc., and determine the qualifications of the specially supplied persons and to be specially supplied with national housing, etc.

(2) The head of the competent Gu shall notify a person subject to special supply of national housing, etc. determined pursuant to paragraph (1) of the district, size, occupancy procedure, etc. of national housing, etc. without delay

Article 12 (Determination of Occupancy Housing)

(1) The determination of a house occupied by a person who is determined as a person eligible for special supply of national housing, etc. under Article 11 (1) (referring to the same number of houses) shall be based on its own plan within the extent of the quantity supplied by the president of the Urban Development Corporation, but in principle, it shall

(2) Where the urban development project president has determined occupancy housing under paragraph (1), he/she shall notify the head of the competent Gu/Si/Gun office of the results thereof without delay.

(3) The head of the competent authority shall record the result of determination of occupancy houses notified under paragraph (2) in the management ledger of applicants for special supply (attached Form 2), and shall guide the applicants of the conclusion of occupancy contracts, occupancy procedures, etc. in urban development works.

(4) In order to investigate whether a decision on a person to be specially supplied is lawful, the head of the competent Si/Gun/Gu shall take necessary measures, such as comparing electronic data of urban development construction works with each other.