(영문) 대법원 2016.6.10.선고 2014다70733 판결

The part of the judgment of the court below against the defendant against the plaintiff B, D, F, L, X, Z, AF, and the plaintiff succeeding intervenor AL is reversed, and that part of the case is remanded to the Seoul High Court.

All appeals by the defendant against the plaintiffs except the plaintiff B, D, F, L, X, Z, AF, and the intervenor succeeding to the plaintiff are dismissed.

The costs of appeal against the plaintiffs other than the plaintiff B, D, F, L, X, Z, AF, and the intervenor succeeding to the plaintiff are assessed against the defendant.

Reasons

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

A. In full view of the contents and purport of the relevant laws and regulations such as Article 21(2) and Article 23 of the former Urban Development Act (amended by Act No. 8376 of Apr. 11, 2007), Article 78(1) and the main text of Article 78(4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Act No. 8665 of Oct. 17, 2007; hereinafter referred to as the “former Public Works Act”), Article 40(3)2 of the former Enforcement Decree of the Public Works Act (amended by Presidential Decree No. 20722 of Feb. 29, 2008), and the policy need to prevent speculative transactions in the course of implementing public works under the Urban Development Act, the statutory basic date for relocation measures that falls under the “date of public works” should be determined by the Presidential Decree No. 201, Mar. 17, 2005>

Meanwhile, in light of the structure, purpose, content, and legislative intent of Articles 1, 2, 2, and 3(2) of the former Special Act on the Promotion of Urban Renewal (amended by Act No. 8786, Dec. 21, 2007; hereinafter “Urban Renewal Act”), Article 2 of the Addenda of the Urban Renewal Act (amended by December 30, 2005); where an urban development project, which was being implemented through the procedures under the former Act and subordinate statutes, such as resident inspection announcement and designation and announcement of an urban development zone, is deemed to have been designated and publicly announced as an urban renewal acceleration district or to have been designated and publicly announced as the urban renewal acceleration district because the urban development project was recognized as being an urban renewal district pursuant to Article 2 of the Addenda of the former Urban Renewal Act, barring any special circumstance, the legal base date of relocation measures for the area included in the previous urban development zone shall be deemed the date of public inspection announcement on the designation of the previous urban development zone (see Supreme Court Decision 2014Da72715, May 12, 2, 2016)

B. As to the Defendant’s assertion that the Plaintiff and the Intervenor’s Intervenor (hereinafter collectively referred to as “Plaintiff B, etc.”) were excluded from those subject to relocation measures under Article 78(1) of the former Public Works Act and Article 40(3)1 and 2 of the former Enforcement Decree of the Public Works Act among the Plaintiffs who filed an appeal by the Defendant, the lower court determined that: (a) the Plaintiff’s non-exclusive ownership of the building constructed before January 24, 1989 under Article 4 of the former Enforcement Decree of the Public Works Act constitutes the Plaintiff’s non-exclusive ownership of the building; and (b) the Plaintiff’s non-exclusive ownership of the building should not be deemed to fall under the Plaintiff’s non-exclusive ownership of the building under Article 40(3)1 of the former Enforcement Decree of the Public Works Act; and (c) the Plaintiff’s non-exclusive ownership of the building under Article 6(3) of the former Enforcement Decree of the Public Works Act or the Plaintiff’s non-exclusive ownership of the building under Article 80(3)1 of the former Enforcement Decree of the Urban Development Act.

C. Article 6 of the Addenda to the Enforcement Decree of the Public Works Act provides that "the owner of a building constructed without obtaining permission or filing a report as of January 24, 1989 without obtaining such permission or filing a report shall be included in the person subject to relocation measures, notwithstanding Article 40 (3) 1." In light of the language and details of the foregoing Addenda provisions and the background leading up to introduction, and the purport and structure of each subparagraph of Article 40 (3) of the Enforcement Decree of the former Public Works Act stipulating a person ineligible for relocation measures, the above Addenda provisions purport to exceptionally exclude the owner of a building constructed at the time of January 24, 1989 from among the requirements excluded from relocation measures under each subparagraph of Article 40 (3) of the former Enforcement Decree of the Public Works Act. It is reasonable to interpret that not only the time of construction but also the time of the acquisition of ownership or right to de facto disposal of the building without permission should be included in the scope of the person subject to relocation measures (see, e.g., Supreme Court Decision 2014Da6274.

In the same purport, even if the court below acquired an unauthorized building constructed before January 24, 1989 after January 24, 1989, it is just to determine the premise that the building does not constitute a reason for exclusion from the person subject to relocation measures under Article 40 (3) 1 of the former Enforcement Decree of the Public Works Act, and there is no error of law by misapprehending the legal principles as to Article 6 of the Addenda of the Enforcement Decree, contrary

D. However, the part of the lower court’s determination as to whether the instant project constitutes a person subject to relocation measures is difficult to accept for the following reasons.

1) According to the reasoning of the lower judgment and the record, ① AM district was publicly announced for residents’ inspection to designate the said AM district as an urban development zone around January 15, 2004. On February 25, 2004, among the instant project area designated as an urban development zone by the AR publicly announced in Seoul Special Metropolitan City, the reservation site was included in BD 152,813.6m2 (hereinafter “the reservation site”). However, the specific development purpose was not determined on the land utilization plan, ② AM urban development zone was designated as a AM urban renewal acceleration district on October 19, 206 in accordance with the designation of AM urban renewal acceleration district and the determination of the specific land use plan of the instant reservation site thereafter, the alteration of the said reservation area was made by the public announced in Seoul Special Metropolitan City on October 18, 2007.

Examining these facts in light of the legal principles as seen earlier, whether a person is a person subject to relocation measures prescribed by the Act on Public Works in an urban development project to which Article 78(4) of the former Public Works Act applies should be determined based on the date of public announcement of designation of an urban development zone, which is designated and publicly announced as an urban renewal acceleration district under Article 2 of the Addenda of the Urban

w the same applies to areas included in the previous urban development zone.

Furthermore, it is difficult to see that the above BD was designated as a reservation site in the urban development zone merely because it was excluded from the project zone, and there is a policy need to prevent speculative transactions arising from the implementation of the project even in the case of a reservation site for which specific development purposes are determined later. Therefore, it is reasonable to view the relocation standard for the land reservation of this case included in the previous urban development zone as January 15, 2004 as the date of the public inspection announcement as well as the remaining project zones.

2) Therefore, we affirm the judgment of the court below which held that the plaintiffs' ownership of residential buildings prior to this date as of January 15, 2004, which was the date of the above public inspection announcement, and resided therein, constitutes a person subject to relocation measures under the former Public Works Act and subordinate statutes.

However, according to the facts acknowledged by the court below, the plaintiff B, D, F, L, X, Z, ZF, and the plaintiff succeeding intervenor AL acquired the ownership of the building or acquired the ownership of the building from such persons after January 15, 2004, or acquired the status of the buyer on the sales contract. Thus, the court below should have examined whether the above plaintiffs are included in the scope of the person subject to relocation measures subject to Article 78 (4) of the former Public Works Act or the person who acquired the status from such persons on the date of public inspection and announcement.

Nevertheless, the lower court determined that Plaintiff B, D, F, L, X, Z, AF, and Plaintiff-Succession Intervenor AL constituted a person subject to relocation measures to be subject to Article 78(4) of the former Public Works Act solely on the ground that the said Plaintiffs acquired ownership or acquired the status of a purchaser from those persons who received ownership prior to the date of public announcement of the relevant district compensation plan or acquired the status of a purchaser under the contract for sale in lots. In so determining, the lower court erred by misapprehending the legal doctrine on the criteria for classification of persons subject to relocation measures as prescribed by the former Urban Development Act and the subject to application of Article 78(4) of the former Public Works Act, and by failing to exhaust all necessary deliberations

2. As to the third ground for appeal

For reasons indicated in its holding, the lower court rejected the Defendant’s assertion that the Defendant should calculate the basic cost for living facilities on the basis of the area which deducts a square meter of 252,89 meters from the road site that the Defendant acquired without compensation from the State or

Examining the reasoning of the lower judgment in light of relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on Article 78(4) of the former Public Works Act, contrary to what is alleged in the grounds of appeal.

3. Conclusion

Therefore, the part of the judgment of the court below against the defendant against the plaintiff B, D, F, L, X, Z, AF, and the plaintiff succeeding intervenor AL is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The defendant's remaining appeals are all dismissed, and the costs of appeal against the remaining plaintiffs are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.