(영문) 대법원 2015.11.26.선고 2013다12235 판결

The part of the judgment of the court below against the plaintiffs except the plaintiff CO and CP and the participant succeeding to the plaintiff is reversed, and that part of the case is remanded to the Seoul High Court.

All appeals by plaintiffs CO and CP are dismissed.

Of the costs of appeal, the costs of appeal by plaintiffs CO and CP are assessed against the above plaintiffs.

Reasons

The grounds of appeal are examined.

1. As to the grounds of appeal by the plaintiffs, other than the plaintiff CO and CP, and the intervenor succeeding to the plaintiff

A. Article 78(1) of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Act No. 11017, Aug. 4, 201; hereinafter referred to as the "former Public Works Act") provides that "a project operator shall establish and implement relocation measures or pay resettlement funds to persons who lose their base of livelihood as a result of the provision of residential buildings due to the implementation of public works (hereinafter referred to as "persons subject to relocation measures"), as prescribed by Presidential Decree," and Article 40(2) of the former Enforcement Decree of the Public Works Act (amended by Presidential Decree No. 23425, Dec. 28, 201; hereinafter referred to as the "Enforcement Decree of the Public Works Act") provides that "any building owner who fails to obtain permission for relocation measures or fails to obtain permission for relocation measures or supplies housing to persons subject to relocation measures pursuant to Article 108(1) of the former Enforcement Decree of the Housing Site Development Promotion Act shall be excluded from construction measures (hereinafter referred to as "building 16) or supply housing to persons subject to the same Act".

In light of the language and details of Article 6 of the Addenda to the Enforcement Decree of the Public Works Act, the purpose and structure of each subparagraph of Article 40(3) of the former Enforcement Decree of the Public Works Act, which provides for persons exempt from the relocation measures, and the purport and structure of each subparagraph of Article 40(3) of the former Enforcement Decree of the Public Works Act, where an unauthorized building was already constructed at the time of January 24, 1989, the aforementioned Addenda provisions purport only to exceptionally exclude the owner from the application of subparagraph 1 among the requirements for exclusion from the persons subject to the relocation measures under each subparagraph of Article 40(3) of the former Enforcement Decree of the Public Works Act, and it is reasonable to interpret that not only the time of construction but also the time of acquisition of the ownership of an unauthorized building or the right to de facto disposal may not be included in the scope of persons subject to the relocation measures (see Supreme Court Decision 2014Da14672,

B. Nevertheless, the lower court determined otherwise on the grounds indicated in its reasoning that the Plaintiffs, other than Plaintiff CO and CP, and the Plaintiff’s succeeding intervenors did not constitute a person subject to relocation measures regardless of the requirements of residence, on the grounds that there is no evidence to acknowledge that they acquired and owned an unauthorized building that they had resided before January 24, 1989. In so determining, the lower court erred by misapprehending the legal doctrine on Article 6 of the Addenda to the Enforcement Decree of the Public Works Act, thereby adversely affecting the conclusion of the judgment.

2. As to the ground of appeal by the plaintiff CO and CP

A. Article 78(1) of the former Public Works Act provides that a project operator shall establish and implement relocation measures or pay resettlement funds as prescribed by Presidential Decree for a person subject to relocation measures. Meanwhile, Article 40(3) of the former Enforcement Decree of the Public Works Act provides that “the owner of a building who does not continuously reside in the building in question from the date of public announcement, etc. under the relevant statutes for public works to the date of conclusion of the contract or the date of adjudication on expropriation (hereinafter “unresident owner”) shall be excluded from the person subject to relocation measures. However, even in this case, it is permissible for a project operator to establish and implement the criteria for expanding the scope of a person subject to relocation measures as prescribed by the said statutes (see, e.g., Supreme Court Decision 2012Da109

However, even if a project operator is included in a person subject to relocation measures beyond the scope of a person subject to relocation measures under Article 78(1) of the former Public Works Act and Article 40(3) of the former Enforcement Decree of the Public Works Act, the relocation measures provided to an unresident owner who is not a person subject to relocation measures under the relevant Act and subordinate statutes shall be deemed mutually beneficial rather than a person subject to relocation measures under the relevant Act and subordinate statutes. Therefore, the project operator shall not be deemed to be obliged to install a living-based facility even to such unresident pursuant to Article 78(4) of the former Public Works Act (see Supreme Court Decision 2012Da

B. The lower court determined that the Plaintiff CO and the CP owned each registered building within the instant project district, but the Plaintiff’s failure to reside in the said building continuously from November 28, 2008 to the date of conclusion of the contract or the date of expropriation ruling under the relevant laws and regulations for public works, and there is no steam to recognize that the Plaintiff CO had resided in the said building, and there is no evidence to recognize that the said Plaintiffs were not residing in the said building due to disease, conscription, enlistment due to conscription, official duties, school attendance, and other similar inevitable reasons, the Plaintiff CO and the CP did not constitute a person subject to relocation measures for the Defendant pursuant to Article 78(1) and (4) of the former Enforcement Decree of the Public Works Act, as a non-resident owner under Article 40(3)2 of the former Enforcement Decree of the Public Works Act.

C. In light of the above legal principles and records, although the court below's above determination was inappropriate in its reasoning, it is just in its conclusion. Contrary to the allegations in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on the issue of fairness and decision-making, the legal principles on the base date of relocation measures, and the burden of proof of inevitable reasons under Article 40 (3) 2 of the Enforcement Decree of the former Public Works Act,

3. Conclusion

Therefore, the part of the judgment of the court below against the plaintiffs and the succeeding intervenors except the plaintiff CO and CP is reversed, and that part of the case is remanded to the court below for a new trial and determination. All appeals by the plaintiff CO and CP are dismissed and the costs of appeal by the plaintiff CO and CP are assessed against the above plaintiffs. It is so decided as per Disposition by the assent of all participating Justices on the bench.