Plaintiff 1 and 21 others (Law Firm Han LLC, Attorneys Choi Jong-dae et al., Counsel for the plaintiff-appellant)

E. E.S. (Attorney Jeong-soo, Counsel for the defendant-appellant)

August 24, 2012

Seoul Administrative Court Decision 2011Guhap36463 decided April 6, 2012

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

On August 1, 2011, the Defendant’s decision to exclude the Plaintiffs from the subjects of the relocation measures for each ○○ Development Zone is revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasoning of this court's reasoning is that the defendant's argument in the appellate court is stated in the reasoning of the judgment of the court of first instance, except for adding the following judgments to the defendant's argument in the appellate court. Thus, this court shall accept it in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of

2. The addition;

(a) Whether legal grounds exist in the base date for relocation measures;

(1) Summary of the Defendant’s assertion

The basic date stipulated in the relocation measures of this case (hereinafter referred to as the “basic date for the relocation measures of this case”) is publicly announced on the basis of the “Urban Development Work Guidelines” amended on December 1, 2003, and the above business guidelines are recognized as effective as a legal order. Thus, the basic date for the relocation measures of this case falls within the category of week 1 on the date when the “public works under the relevant Acts and subordinate statutes” as stipulated in Article 40(3)2 of the Enforcement Decree of

Shed Judgment

도시개발업무지침 2-8-13-3의 규정 단서는 “다만, 도시개발구역 지정권자가 투기억제를 위하여 필요하다고 인정되는 때에는 이주대책기준일을 별도로 정하여 공고할 수 있다.”고 규정하고 있으나, ㈎ 도시개발업무지침 1-1-1은 “이 지침은 도시개발법 제5조 및 동법 시행령 제25조 등 도시개발법령에서 건설교통부장관이 정하도록 한 사항과 기타 도시개발사업의 시행상 필요한 세부적인 사항을 정함으로써 도시개발사업이 원활히 수행될 수 있도록 함을 목적으로 한다.”고 규정하고 있는데, 구 도시개발법(2007. 4. 11. 법률 제8376호로 개정되기 전의 것) 제5조 제5항 은 “개발계획의 작성의 기준 및 방법은 건설교통부장관이 이를 정한다.”고 규정하고, 구 도시개발법 시행령(2006. 3. 29. 대통령령 19422호로 개정되기 전의 것) 제25조 제2항 은 “동의자 수의 산정방법·절차 등에 관하여 기타 필요한 사항은 건설교통부장관이 정한다.”고 규정함으로써 ‘개발계획의 작성기준 및 방법’에 관한 사항과 ‘동의자 수의 산정방법·절차’에 관한 사항만을 건설교통부장관이 정하도록 하고 있을 뿐, 이주대책 수립·실시에 관한 사항을 건설교통부장관이 정하도록 규정하고 있지는 않은 점, ⑵ 또한 공익사업법 제78조 는 공익사업시행자로 하여금 대통령령이 정하는 바에 따라 이주대책을 수립·실시하도록 하고 있으나, 그 위임에 따른 공익사업법 시행령 제40조 , 공익사업법 시행규칙 제53조 는 이주대책대상자에서 제외할 자, 이주대책에 갈음하여 이주정착금을 지급할 경우 등만을 규정하고 있을 뿐 사업시행자 등이 이주대책기준일을 별도로 공고할 수 있다는 규정은 두고 있지 않은 점에 비추어 보면, 위 도시개발업무지침 2-8-13-3의 단서 규정이 도시개발법, 공익사업법 등 관계법령의 위임에 따라 그 규정 내용을 보충하면서 그와 결합하여 대외적 구속력이 있는 법규명령으로서의 효력을 가진다고 볼 수 없다. 피고의 주장은 이유 없다.

(b) Whether he is excluded from those subject to relocation measures based on the date of public inspection;

(1) Summary of the Defendant’s assertion

Even if the base date for the relocation measures of this case ( December 30, 2005) cannot be deemed as the legitimate base date for the relocation measures of this case, it falls under the “date of public notice, etc. under the relevant Acts and subordinate statutes” on December 29, 2006, which was made for public inspection of residents regarding the designation, etc. of urban development zones pursuant to Article 7 of the Urban Development Act. Therefore, in a preliminary case, when the public notice date is based on the public notice date for public inspection of the above residents, Plaintiffs 18, the deceased Non-Party (the spouse of Plaintiff 20), and Plaintiff 22 acquired housing after the base date, and Plaintiff 2 and Plaintiff 3 do not fall

Shed Judgment

Article 40(3)2 of the Enforcement Decree of the Public Works Act, which is the base date for relocation measures, “the date of the public notice, etc. under the relevant Acts and subordinate statutes for the public project,” can include not only the date of the public notice of the project approval but also the date of the public notice of the public inspection if the relevant Acts, which requires the Land Expropriation Procedure to apply mutatis mutandis, are planned to publicly announce the public inspection of residents, in addition to the public notice of the project approval (see, e.g., Supreme Court Decision 2007Du1340, Feb. 26, 2009). If the project implementer set the date of public announcement of the

However, according to Gap evidence Nos. 1-5, Eul evidence Nos. 4 and 5, the relocation measures of this case only set forth the criteria for selecting the person subject to the relocation measures and the criteria for determining the type and size of the apartment to be supplied only on December 30, 2005 and August 29, 2008, which is the date of the announcement of the compensation plan, which is the base date of the relocation measures of this case, and there is no ground to view that the person subject to the relocation measures of this case can be determined based on the date of the public inspection for residents (the defendant can also be deemed as the base date of the relocation measures for residents in this case on Aug. 25, 2009). However, the above judgments are consistent with the standards for the public inspection of residents, and thus, cannot accept the issue of the defendant's assertion in this case.

C. Whether it is a disposition within the discretionary scope of the establishment and implementation of measures for resettlement

(1) Summary of the Defendant’s assertion

A project operator has discretion to select a person who is obligated to establish and implement relocation measures among those subject to relocation measures and determine the contents and quantity of housing sites or housing to be supplied to them. Therefore, even if the base date of the relocation measures of this case is illegal, each of the dispositions of this case, which decided to specially supply housing below a certain size (a certain size of exclusive use area or a size of 85 square meters or below 60 square meters) on the basis of the above base date, shall not be deemed unlawful as it is based on the

Shed Judgment

In accordance with Article 78(1) of the Public Works Act, a project operator shall establish and implement the relocation measures or pay resettlement funds for a person subject to the relocation measures pursuant to Article 78(1) of the Public Works Act. The "date of public announcement, etc. under the relevant Acts and subordinate statutes for public projects" under Article 40(3)2 of the Enforcement Decree of the Public Works Act, which lists cases where a person subject to the relocation measures is excluded from the person subject to the relocation measures, shall be determined by a person who is not a person subject to the relocation measures, but a person who is obligated to establish and implement the relocation measures among those subject to the relocation measures, and a person who is obligated to pay the resettlement funds. Thus, the project operator may select a person subject to the relocation measures from among those subject to the relocation measures and determine the contents and quantity of the housing site or housing to be supplied to him/her, and thus, the criteria set by the project operator shall be respected unless there are any special circumstances that are objectively unreasonable or unreasonable (see Supreme Court Decision 2009Du23709, Mar. 25, 20109).

As to the instant case, the Defendant did not decide whether the Plaintiff constitutes a person subject to the relocation measures on the basis of the base date for the relocation measures of this case (i.e., the base date for the relocation measures of this case is not used as the basis for the determination of the person subject to the relocation measures of this case), but if the Plaintiffs were included in the person subject to the relocation measures, but only differentiated the type and area of the housing to be sold, it can be deemed lawful unless there are special circumstances. However, in full view of the entries in No. 4-1 to No. 22, and No. 5 of the evidence No. 4-2, as a whole, the purport of the entire pleadings, and the purport of the Defendant’s assertion as to the background and basis of each of the instant dispositions of this case (Records 7,78 of the record), each of the instant dispositions of this case are acknowledged under the premise that the Plaintiffs are excluded from the person subject to the relocation measures of this case, it cannot be deemed that there is discretion under

3. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Gangnam-gu (Presiding Judge) Lee Dong-ho

A judge is unable to sign and affix a seal due to a transfer;

(1) The first instance court and the first instance court's argument that "No grounds exist to regard December 30, 2005, which is the base date for relocation measures publicly announced by the Mayor of Seoul Special Metropolitan City, as falling under "the date of public announcement, etc. under the relevant Acts and subordinate statutes for public works" under Article 40 (3) 2 of the Enforcement Decree of the Public Works Act (No grounds to regard as "the date of public announcement, etc. under the relevant Acts and subordinate statutes

[2] Supreme Court Decision 209Du16244 Decided December 10, 2009 (Dismissal of Appeal under Articles 4 and 5 of the Act on Special Cases Concerning Procedure for Final Appeal)

3) Unlike the notification of each of the results of the examination on the Plaintiffs (Evidence A No. 4-1 to 22), the “supply classification” column stated “resettled housing” as “resettled housing.”

4) Therefore, the Defendant’s assertion to the effect that “the first instance court arbitrarily interpreted the contents of each of the dispositions in this case and thereby found the facts as a disposition excluding those subject to relocation measures is unreasonable (the reference document submitted after the closing of argument in the appellate trial in this case)” cannot be accepted.