Plaintiff

Large Two District Housing Redevelopment and Improvement Project Association (Law Firm L&C, Attorneys Kang Chang-ok et al., Counsel for the plaintiff-appellant)

March 17, 2010

Busan District Court Decision 2009Guhap1199 Decided October 29, 2009

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 11,963,918 won with 5% interest per annum from August 23, 2007 to March 17, 2009, and 20% interest per annum from the next day to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasoning of this Court’s explanation concerning this case is as follows: (a) of Section 2.C. (2) of the judgment of the court of first instance is as stated in the reasoning of the judgment of the court of first instance; and (b) thus, this Court cited it as it is in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

Parts of Cutd

(2) Judgment on the Defendant’s assertion that the reimbursement period has not expired

(A) The defendant's argument

The defendant asserts that even if the plaintiff is the person eligible for the cost of moving a house, the time of payment of the cost of moving a house is not the date of public announcement of the project implementation authorization, but the time of moving or removing after the approval of the management and disposal plan concerning the project of this case.

(B) Determination

According to Article 78(5) of the Act and Articles 54(2) and 55(2) of the Enforcement Rule of the Act, the housing relocation expenses and directors’ expenses paid to tenants of residential buildings that have been relocated following the implementation of public works shall have the nature of the amount of money paid from the social security perspective to tenants who will suffer special difficulties due to the policy purpose of encouraging the early relocation of tenants residing in the relevant zone where the public works are performed and the relocation of their residence to facilitate the implementation of the project. Thus, the tenant who falls under Article 54(2) of the Enforcement Rule of the Act is the tenant of residential buildings that have been relocated due to the implementation of the public works and who has resided in the zone where the public works are performed for more than three months at the time of the public works project approval or the announcement under the relevant Acts and subordinate statutes for the public works, without the need to continue his residence until the date of notification of the relocation expenses or the date of commencement of expropriation of the project (see Supreme Court Decision 2006Du45265, Apr. 26, 2006).

In addition, according to the above laws and regulations, the residential relocation expenses and the director's expenses are not incurred only when the right to claim payment is settled by the decision of the administrative agency's acceptance, but also occur immediately if the requirements of the law are met without the primary decision of the administrative agency. Thus, the claimant for the residential relocation expenses and the director's expenses can directly claim payment against the project operator in the form of a party suit.

On the other hand, the defendant is the project implementer of the project in this case under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter "the Urban Improvement Act"), and has obtained authorization for the project implementation of the project in this case on August 22, 2007. According to the Urban Improvement Act, after obtaining authorization for the establishment of the project, a maintenance and improvement project association shall prepare a project implementation plan including a land utilization plan, an infrastructure for rearrangement and common use facilities installation plan, resident relocation plan including temporary accommodation facilities, etc., and obtain authorization for the project implementation (Articles 28 and 30), a resident relocation plan shall be implemented for the owner or tenant of the house removed by the implementation of the project after obtaining authorization for the project implementation (Article 36), and a resident relocation plan shall be exercised for the owner or tenant of the house removed by the implementation of the project (Article 38), and the existing building shall be removed (Article 48-2) and shall be supplied to the owner of the land, etc. in accordance with the management and disposal plan (Article 50).

In light of the above legal principles, the plaintiff's right to claim for the cost of moving a house against the same tenant is established as of the date of project implementation authorization, and the defendant, the project implementer, is obligated to pay the cost of moving a house, etc. to the plaintiff, and there is no ground to see the due date after the date of approval of the management and disposition plan, and

2. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Jong-Un (Presiding Judge)