Whether “the owner of a building constructed without obtaining a building permit or filing a report” under Article 40(3)1 of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects includes a person who arbitrarily alters the purpose of use of a building for non-residential purpose into a residential purpose (affirmative)

Article 78(1), (5), and (7) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Amended by Act No. 8665, Oct. 17, 2007); Article 40(3)1 and 2 of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Amended by Presidential Decree No. 20722, Feb. 29, 2008); Articles 24 and 54(1) of the former Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Amended by Presidential Decree No. 427, Jan. 2, 2012)

Supreme Court Decision 2010Du26216 Decided June 10, 201 (Gong2011Ha, 1401)

Plaintiff

Korea

Seoul High Court Decision 2011Nu10388 decided September 30, 201

The part of the judgment of the court below concerning resettlement funds and housing relocation expenses shall be reversed, and that part of the case shall be remanded to the Seoul High Court. The remaining appeal shall be dismissed.

The grounds of appeal are examined.

1. According to Article 78(1) of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Act No. 8665 of Oct. 17, 2007; hereinafter “former Public Works Act”) and Article 40(3)1 of the former Enforcement Decree of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (amended by Presidential Decree No. 20722 of Feb. 29, 2008; hereinafter “former Enforcement Decree of the Public Works Act”), the owner of a building constructed without obtaining a building permit or filing a report shall be excluded from the relocation measures.

In addition, Article 78(5) and (7) of the former Public Works Act and Article 24 and the proviso of Article 54(1) of the former Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 427, Jan. 2, 2012; hereinafter “former Enforcement Rule of the Public Works Act”) provide that a project operator shall calculate and compensate expenses incurred in relocating a residence (hereinafter “resident relocation expenses”) for a resident who provided a residential building due to the implementation of a public project, but the owner of a building constructed without obtaining permission or filing a report or filing a report shall be excluded from compensation for relocation expenses.

In full view of the language and text, contents, legislative intent, etc. of the above provisions of the Act, considering the following: (a) the relocation measures system and the compensation system for relocation expenses under the former Public Works Act are systems established by the active and political consideration of the State as part of the so-called living compensation in order to ensure a living environment in which a living environment is lost by the implementation of public works; (b) at the same time, it is reasonable to interpret Article 40(3)1 of the former Enforcement Decree of the Public Works Act and Articles 24 and 54(1) proviso of the Enforcement Decree of the former Enforcement Decree of the Public Works Act as including the owner of a building without obtaining a permit or filing a report or filing a report to construct a building without obtaining a permit or filing a report.

2. According to the reasoning of the first instance judgment as cited by the lower court and the evidence duly admitted by the lower court, the head of the Seoul Regional Construction and Management Administration publicly announced the determination of the road zone on February 21, 2007 as the implementer of the construction project to build a road between reinforcements in Incheon (hereinafter “instant project”), and the Plaintiff acquired ownership of the first floor and a building with 45 square meters per annum and per 45 square meters per annum (hereinafter “the instant building”) on January 23, 1999, which was incorporated into the instant project area. The purpose of the instant building on the building ledger is registered as a factory from that time to that time, and the Plaintiff completed the move-in report on February 12, 2004, which was before the determination of the road zone was publicly notified, and can be seen as having been actually residing in the instant building.

3. Examining the above facts in light of the legal principles as seen earlier, the Plaintiff owned and used the instant building for non-residential purposes without due process, thereby constituting “the owner of a building constructed without obtaining permission or filing a report” under Article 40(3)1 of the Enforcement Decree of the former Public Works Act and Articles 24 and 54(1) proviso of the former Enforcement Rule of the Public Works Act, and thus excluded the building from the subject of relocation measures or the subject of compensation for housing relocation expenses under the former Public Works Act.

Nevertheless, the lower court determined otherwise, that the instant building constitutes “residential building” under Article 78(1) of the former Public Works Act regardless of its registered purpose, and even if the Plaintiff used the instant building for residential purpose in the factory, it cannot be deemed that the Plaintiff constitutes “owner of a building constructed without obtaining permission or filing a report” under Article 40(3)1 of the former Enforcement Decree of the Public Works Act and Articles 24 and 54(1) proviso of the former Enforcement Rule of the Public Works Act. In so doing, the lower court erred by misapprehending the legal doctrine on relocation measures and eligibility for compensation for housing relocation expenses under the former Public Works Act, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

4. Meanwhile, the defendant also stated the part concerning the director's expenses in the petition of appeal as subject to appeal. However, there is no legitimate ground of appeal in the petition of appeal or the appellate brief.

5. Therefore, the part of the judgment of the court below regarding the resettlement funds and housing relocation expenses is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)