Whether a tenant who moved into an unauthorized building, etc. designated as a person eligible for compensation for relocation expenses under the proviso to Article 54 (2) of the Enforcement Rule of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects constitutes a tenant who moved into an unauthorized building, etc. after voluntarily leasing the building for non-residential purposes (negative)

Article 78(5) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects; Articles 24 and 54(2) of the former Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (wholly amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 427, Jan. 2, 2012)

Plaintiff (Attorney Choi Young-young, Counsel for the plaintiff-appellant)

Korea Land and Housing Corporation (Law Firm Hun, Attorneys Yu Byung-il et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2011Nu32531 decided April 20, 2012

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

The grounds of appeal are examined.

1. According to Article 78(5) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Public Works Projects Act”) and Articles 24 and 54 of the former Enforcement Rule of the Public Works Projects Act (wholly amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 427, Jan. 2, 2012; hereinafter “former Enforcement Rule”), a project implementer shall compensate the owner of a “residential building” that is relocated due to the implementation of public works and the tenants who meet the requirements for residence for a given period of time, for the prescribed amount of housing relocation expenses. On the other hand, the building owner constructed without obtaining permission or filing a report in accordance with the related Acts and subordinate statutes, such as the Building Act (hereinafter “unauthorized building, etc.”) without obtaining permission or filing a report (hereinafter “unauthorized building, etc.”). The owner is excluded from compensation for housing relocation expenses, but requires the tenant to compensate for housing relocation expenses that meet the requirements for residence of the tenant for a given period of time.

In full view of the language, content, legislative intent, etc. of the aforementioned provisions, if a building which is not a residential purpose in the public register changes its residential purpose to a non-residential building without due process such as permission, reporting, etc., it cannot, in principle, be deemed a residential building that is subject to compensation for the cost of moving a house. This is merely an exceptional case where a tenant who moves into the building falls under the “unauthorized building, etc.” and thus, can be eligible for compensation for the cost of moving a house. Furthermore, the proviso of Article 54(2) of the Enforcement Rule of the former Act refers to a tenant who moves into an unauthorized building, etc. used for an existing residential purpose and resided for a certain period after moving into an unauthorized building, etc., which is used for a non-residential purpose in the public register, and the tenant who voluntarily changed the purpose of his/her residential purpose

2. According to the reasoning of the lower judgment and the record, the Defendant, as an implementer of an urban development project of the Incheoncheon Home Distance, made a public inspection announcement for the designation of an urban development zone on May 24, 2006, and thereafter made a public announcement of a compensation plan under the Public Works Act on August 31, 2007, and the Plaintiff, around September 25, 2002, operated a restaurant business by leasing the 101st floor of the 1st floor of the 1st floor of the 1st floor (hereinafter “the building in this case”) located in the project district of Seo-gu Incheon, Seo-gu, Incheon, which belongs to the project district, and used the warehouse outside the building in this case for residential purpose by remodeling the warehouse outside the building in this case and residing with his family until the time of the public announcement of the above compensation plan. The use of the building in this case is registered as the collective building ledger and the register as the “ neighborhood living facilities

In light of the above facts in light of the legal principles as seen earlier, the Plaintiff’s lease of the instant building that is not a residential purpose registered in the public register and then arbitrarily changed the purpose of use for residential purpose, and cannot be deemed as a tenant who moved into an unauthorized building, etc. under the proviso of Article 54(2) of the former Enforcement Rule of the Public Works Act, and thus, it shall be excluded from the person eligible

Nevertheless, the lower court accepted the Plaintiff’s claim for the cost of housing relocation solely based on the circumstances indicated in its holding. In so doing, the lower court erred by misapprehending the legal doctrine on tenants entitled to compensation for the cost of housing relocation under the Public Works Act, thereby adversely affecting the conclusion of the judgment. The ground of appeal

3. 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 Ko Young-han (Presiding Justice)