Whether the removal of a building is an inevitable building due to aging as provided by Article 2 subparagraph 3 (c) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents immediately after the completion of twenty years (negative)

The purport of Article 2(2)1 of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Areas and Dwelling Conditions for Residents”) and its Enforcement Decree provides that “a building for which 20 years have passed after its completion (where a City/Do municipal ordinance prescribes 20 or more years, referring to such training; hereinafter “20 years, etc.”) as one of “a building which is inevitable to be removed due to structural defects, etc. caused by de facto aging, etc.” is that the building has deteriorated in proportion to its completion and its structural defects are highly likely to occur accordingly. Thus, it is reasonable to consider that the building’s completion of construction of a 20-year urban improvement project, such as the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 21679, Aug. 11, 2009; hereinafter “former Enforcement Decree of the Urban Improvement Act”) should also be considered as an inevitable construction of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions within the scope of the Act after its completion.

Article 2 subparagraph 3 (c) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Article 2 (2) 1 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 21679 of August 11, 2

Supreme Court Decision 2008Du9270 Decided July 15, 2010

Plaintiff 1 and five others (Law Firm Hongju, Attorney Lee Sang-ho, Counsel for the plaintiff-appellant)

Daejeon Metropolitan City Mayor (Law Firm Newro, Attorneys Cho Yong-il et al., Counsel for the plaintiff-appellant)

Samsung Dong-dong Housing Reconstruction Project Association Establishment Promotion Committee

Daejeon High Court Decision 2010Nu519 decided July 8, 2010

The appeal is dismissed. The costs of appeal are assessed against the Defendant’s Intervenor, and the remainder are assessed against the Defendant.

1. The grounds of appeal are examined.

A. Article 1 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”) provides that “The purpose of this Act is to contribute to the improvement of urban environments and the elevation of quality of residential life by prescribing matters necessary for the planned rearrangement of areas where urban functions are required or residential environment is inferior, and for the efficient improvement of worn-out and inferior buildings.” Article 2 subparag. 3 of the Act provides that “The buildings that fall under any of the following items shall mean buildings: (c) the removal of which is inevitable due to impediments to urban aesthetic view, functional defects of buildings, defective construction, or structural defects due to deterioration, etc., as prescribed by the ordinance of a City/Do.” Accordingly, according to such delegation, Article 2(2)3 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 21679, Aug. 11, 2009; hereinafter “former Enforcement Decree”) refers to buildings which fall under any of the following subparagraphs and Article 2(1)3(c) of the Act:

As can be seen, the purport of the Urban Improvement Act and the Enforcement Decree thereof stipulating that a building for which 20 years have passed after its completion (where a City/Do municipal ordinance prescribes more than 20 years, the building shall be included in training; hereinafter “20 years, etc.”) as one of “a building that needs to be removed due to structural defects, etc. caused by aging, etc.” is that the building becomes deteriorated after the lapse of a certain period after its completion and that there is a high possibility of structural defects, etc. accordingly. Therefore, the passage of the same period as “20 years after its completion, etc.” under Article 2(2)1 of the Enforcement Decree of the Urban Improvement Act shall be deemed to be one of the various standards which form a sign of aging and dysium, and if 20 years have passed after its completion, it shall not be deemed that the removal under Article 2 subparag. 3(c) of the former Enforcement Decree constitutes an inevitable removal under Article 2(2)1 of the Urban Improvement Act and the Enforcement Decree thereof, it shall not be deemed that the removal under Article 2017(70.5).

In addition, in light of the fact that Article 12 of the Urban Improvement Act provides that the safety diagnosis of a building within a housing complex shall be conducted naturally in certain cases, and the result thereof shall be comprehensively examined, and the establishment of a rearrangement plan or the implementation of a housing reconstruction project shall be decided, it shall not be the only standard for determining whether the 20-year period has elapsed after the completion of the construction is an old or inferior building.

Furthermore, considering that the procedures for the restriction of property rights, such as the expropriation of land or buildings or the request for sale, are inevitably accompanied in the rearrangement project, the interests of land or building owners should be fully considered.

In full view of the forms, purport, etc. of these points and regulations, it is reasonable to interpret that "a building prescribed by ordinance of a City/Do as prescribed by Presidential Decree, which is inevitable to be removed due to structural defects, etc. caused by deterioration of a building" under Article 2 subparagraph 3 (c) of the Urban Improvement Act and Article 2 (2) 1 of the Enforcement Decree thereof means a building for which 20 years have passed after its completion and its removal is inevitable due to structural defects, etc.

B. According to the reasoning of the judgment of the court below and the judgment of the court of first instance cited by the court below, even if 20 years have passed since the completion of construction stipulated in Article 2(2)1 of the former Enforcement Decree of the Act on the Maintenance of Urban Areas and Dwelling Conditions, the court below may examine whether the individual building is inevitable to be removed through a field investigation, etc., and then examine whether it constitutes an old or inferior building under Article 2 subparag. 3(c) of the Act on the Maintenance of Urban Areas and Dwelling Conditions for Residents. However, the court below determined that the defendant's disposition to designate the housing reconstruction project of this case was

The judgment of the court below is just in accordance with the above legal principles, and it is not erroneous in the misapprehension of legal principles as to standards for determining deteriorated and inferior buildings, as otherwise alleged in the ground of appeal.

C. Therefore, the appeal shall be dismissed, and the costs of appeal shall be borne by the Intervenor joining the Defendant, and the remainder shall be borne by the Defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench. It is so decided as per Disposition by the assent of all participating Justices Jeon Soo-ahn

2. Concurrence with Justice Jeon Soo-ahn and Justice Shin Young-chul

A. In a case where a certain requirement is prescribed in the delegation of subordinate laws and regulations with respect to the discipline of matters that meet such requirements, the delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of subordinate Acts and subordinate statutes, the determination of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of subordinate Acts and subordinate statutes is not possible. This is also the same in light of the delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation of delegation

B. Although it is necessary to determine the designation of an improvement zone based on a standardized and uniform standard, Article 2 subparag. 3 (c) of the Urban Improvement Act does not stipulate a specific method of investigation to determine whether the removal is inevitable as an old or inferior building.

However, Article 12 of the Act on the Maintenance and Improvement of Urban Areas provides that the head of a Si/Gun shall, if he/she determines whether to conduct a safety inspection for a building in a housing complex, conduct a safety inspection for the building within a housing complex (Paragraph 1 and Paragraph 2), conduct a safety inspection for the building in question through an on-site investigation, etc. (Paragraph 3). Article 20(1) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas provides that safety inspection for a housing reconstruction project shall be conducted in accordance with the standards determined and publicly notified by the Minister of Land, Transport and Maritime Affairs (Paragraph 4). The main sentence of Article 20(1) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas provides that the safety inspection for a housing reconstruction project under Article 12 of the Act on the Maintenance and Improvement of Urban Areas shall be conducted for multi-family housing, and the method of implementing a safety inspection for a housing reconstruction project for a housing reconstruction project (Article 209-814 of the Ministry of Land, Transport and Maritime Affairs).

As such, even though Article 2 subparag. 3 (c) of the Urban Improvement Act does not provide for a separate method of investigation on old and inferior buildings, in the case of multi-family housing, a specific safety diagnosis standard for housing reconstruction project is established according to delegation by the Urban Improvement Act in the case of multi-family housing. In the case of multi-family housing, the purpose of Article 2 subparag. 3 (c) of the Urban Improvement Act is to provide for objective and reasonable standards by allowing experts, such as a professional structural engineer, to examine various factors such as structural stability, residential environment suitability, and facility old and inferior buildings in light of the specific safety diagnosis standard for multi-family housing, etc. In light of such standard, it is sufficiently possible to establish objective and reasonable standards by examining whether the removal is an inevitable building after examining whether it is an old and inferior building. In addition, it cannot be said that the progress of the housing reconstruction project is difficult. If a multi-family housing reconstruction project can be implemented only on the ground that the period of 20 years has elapsed without any objective investigation in the case of owners, such as the plaintiffs of this case, multi-family housing can be implemented without any reasonable reason.

C. To the extent that a certain improvement project plans a compulsory disposal of land or a building, the interests of the owners of land or a building to be expropriated or sold against their will shall be sufficiently taken into account, and such consideration is also helpful for the smooth progress of the rearrangement project. If the removal of an individual building is deemed inevitable in light of its structure, stability, suitability of residential environment, preservation status, etc., the mere fact that the 20-year period, etc. has elapsed after the completion of the construction may lead to economic loss and waste caused by the implementation of the reckless improvement project, and in the case of a building with high preservation value, such as traditional Korean traditional Korean-style houses, it may be damaged more.

Justices Yang Sung-tae (Presiding Justice)