Plaintiff

Korea Land and Housing Corporation (Attorney Song Dong-ho, Counsel for defendant-appellant)

December 17, 2009

Daejeon District Court Decision 2009Guhap1350 Decided September 9, 2009

1. Revocation of a judgment of the first instance;

2. The defendant shall pay 387,610 won to the plaintiff.

3. All costs of the lawsuit shall be borne by the defendant.

4. Paragraph 2 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. The Defendant is an executor of the Seo-gu Daejeon District Housing Site Development Project (hereinafter “instant project”). Daejeon District among the instant project districts, Seo-gu, Seo-gu, Seo-gu, Seo-gu, Seo-dong, Suwon-dong, Dong-dong, Dong-dong, and Seodong-dong, Daejeon-gu, Daejeon-dong, a project district for the development of housing sites (hereinafter “instant project”). On November 25, 199, the Daejeon-gu District was made public and publicly announced as a planned area for the development of housing sites on December 16, 2003, the land site (hereinafter “instant site”) of Seo-gu, Seo-dong (hereinafter “Seoul-gu”) was changed to the instant project district under Article 203-304 of the Public Notice of the Ministry of Construction and Transportation on December 16, 2003.

B. The Defendant, based on Article 54(1) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Enforcement Rule”), provided guidance on the payment of housing relocation expenses to the “persons who actually resided in a residential building within the instant project district before the date of the public announcement of the project approval and who emigrates due to the implementation of the instant project, from among those who own a residential building within the instant project district.”

C. On January 14, 2009, the Plaintiff filed an application with the Defendant for payment of housing relocation expenses under Article 54(1) of the Enforcement Rule, on the ground that Nonparty 1’s family and the Plaintiff’s wife resided in the housing on the ground of the instant site owned by Nonparty 1 (hereinafter “instant housing”). However, on January 20, 209, the Defendant rejected it on the ground that there was no objective data to deem that the Plaintiff resided in the instant housing on the ground that there was no objective data to deem that the Plaintiff resided in the instant housing.

D. Even after the Plaintiff filed an application with the Defendant for payment of housing relocation expenses by attaching additional data on two occasions, the Defendant rejected the application on February 17, 2009 and March 17, 2009.

[Reasons for Recognition]

Facts without dispute, Gap evidence 1, Eul evidence 1, Eul evidence 1, Eul 2, 3, 4, 6 (including each number, if any) and the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

(1) Plaintiff

From October 22, 1998, the Plaintiff had resided together with the Plaintiff’s wife, son and son’s family members in the instant house. Nevertheless, the Defendant paid only the cost of moving the residence to the other four family members except the Plaintiff. Therefore, the Defendant should pay to the Plaintiff the remainder of KRW 387,610,00 calculated by subtracting the cost of moving the residence from KRW 6,162,080 for the five family members to KRW 5,774,470 for the four family members.

(2) Defendant

Article 78(5) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “the Act”) and Article 54(1) of the Enforcement Rule are owners who have resided in the housing from the date of the public announcement of the project approval to the date of the compensation agreement. The plaintiff does not reside in the housing of this case for the above period, and the plaintiff is not the owner of the housing of this case. Thus, the plaintiff’s claim of this case is

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

(c) Fact of recognition;

(1) The instant housing was owned by Nonparty 1, the Plaintiff’s children, and Nonparty 1, upon the implementation of the instant project, concluded a compensation agreement with the Defendant on December 30, 2005 on the instant housing, and thereafter, received expenses and directors’ expenses from the Defendant on the ground that he resided together with three family members (the wife, children, and mother, and Nonparty 2, the Plaintiff’s wife, and Nonparty 2).

(2) On the resident registration basis, on July 11, 1998, the Plaintiff moved into the Seocheon-dong (hereinafter “the above apartment complex”) in Jungcheon-gu, Daejeon (hereinafter “the above apartment complex”). On January 4, 2002, the Plaintiff moved to the housing of this case, and on January 16, 2002, again moved to the above apartment.

(3) Around October 200, Nonparty 3 entered into a lease agreement with the Plaintiff on the apartment owned by the Plaintiff, and the above lease agreement was renewed twice. Nonparty 3 terminated the lease agreement on May 27, 2005 and completed the lease registration on September 15, 2005 on the above apartment, and filed a lawsuit against the Plaintiff for claiming the return of the lease deposit with the Daejeon District Court on September 23, 2005, and the Daejeon District Court decided to recommend recommendation to pay the lease deposit and interest to the Plaintiff on September 29, 2005.

(4) The Plaintiff’s address on the content-certified mail, which Nonparty 3 sent to the Plaintiff prior to filing a lawsuit claiming the return of the lease deposit, is indicated with the parcel number of the instant house, and the address of the Plaintiff and Nonparty 3, the other party, is all the above apartment. However, the service place of the Plaintiff is described respectively as the Daejeon Jungcheon-dong (hereinafter 3 omitted) (hereinafter “○○”).

(5) According to the non-party 4’s confirmation letter, an employee of the Daejeon Telecom Co., Ltd., the Plaintiff continued to have his domicile on and after March 3, 2000, on the Seo-gu Seo-dong (hereinafter referred to as the “4 omitted”) (the number prior to the correction of the instant house), Seo-gu (hereinafter referred to as the “instant house”).

(6) The cost of moving a house of the owner and his household members following the incorporation of the instant housing project implementation district is KRW 6,162,080 on the basis of five persons, and KRW 5,774,470 on the basis of four persons.

[Reasons for Recognition]

Facts without dispute, Gap evidence 2, 4, 5, 6, Eul evidence 2, 3, Eul evidence 4-1 through 5, Eul evidence 5-1, 2, and the purport of the whole pleadings.

D. Determination

(1) Whether the requirements of residence are satisfied

In accordance with Article 78(5) of the Act and Article 54 of the Enforcement Rule, the cost of moving a residential building to a resident of the said residential building is the amount of money paid on the level of social security for the residents who will suffer special difficulties due to moving a residential building to facilitate the implementation of the project by encouraging early moving of the residents of the said residential building to be incorporated into the implementation district of the relevant public project. Meanwhile, Article 54(2) of the Enforcement Rule provides that a tenant who is a tenant of a residential building that is to move to due to the implementation of the public project and who has resided in the relevant public project area for at least three months at the time of the public project announcement or the public announcement under the relevant Acts and subordinate statutes for the public project is required to continue his/her residence until the date of the notification of the cost of moving a residential building or the commencement date of expropriation, regardless of whether he/she is entitled to receive the cost of moving a residential building after the public project announcement (see Supreme Court Decision 2006Du2435, Apr. 27, 2006).

In the instant case, the above facts and the following facts revealed by them, and the period of registration of resident in the instant apartment (from October 16, 2000 to September 2005) as well as the period of registration of resident in the said apartment (from October 2000 to September 16, 2005), which is the public announcement of the public announcement of the project approval of the instant apartment, are as follows: (a) Nonparty 3, the lessee, was living in the instant apartment owned by the Plaintiff; and (b) it is difficult to deem that the Plaintiff, who had had a workplace (○○ Building) in the Seocheon-dong, Daejeon-gu, Daejeon, was living in a non-resident in the instant apartment; and (c) it is reasonable to deem that the Plaintiff had been residing in the instant apartment at the time of the public announcement of the public announcement of

(2) Whether the right to claim for the cost of moving residence is recognized for residents other than the owner

Article 78(5) and (6) of the Act provides that a resident of the building in question, other than the owner of the building in question, who is incorporated into the implementation zone of public works, may claim for the cost of moving a house under the Act. Article 78(5) and (6) of the Act provides that the resident of the building in question shall be paid the cost necessary for moving a house and the cost necessary for transporting movable property, such as household effects, and the compensation shall be based on the standards determined by Ordinance of the Ministry of Land, Transport and Maritime Affairs. However, Article 54 of the Enforcement Rule of the above delegation provides that the tenant shall be compensated for the cost of moving a house in question at the time of compensating the owner of the building in question, and Article 54(2) provides that the compensation for the cost of moving a house shall be paid for two months according to the number of his/her household members when compensating the owner of the building in question, other than the owner who is defined as the person entitled to the cost of moving a house in question. Therefore, the plaintiff shall be paid the compensation provision directly to the owner in this case.

(3) Sub-determination

Therefore, as the Plaintiff seeks, the Defendant is obligated to pay KRW 387,610, which is the difference between KRW 6,162,080 and KRW 5,774,470 of the standard residential relocation cost, as the Plaintiff seeks.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, and it is so decided as per Disposition by cancelling the judgment of the court of first instance and ordering the payment of the above amount.

[Attachment]

Judges Cho Soo-soo (Presiding Judge) Maximum index