(영문) 대법원 2016.5.12.선고 2015다70105 판결

The part of the judgment of the court below against the defendant against the plaintiff K is reversed, and that part of the case is remanded to the Seoul High Court.

All appeals against the plaintiffs except plaintiff K are dismissed.

The costs of appeal against the remaining plaintiffs are assessed against the defendant.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

A. According to Article 23 of the former Urban Development Act (amended by Act No. 8376 of Apr. 11, 2007), Article 78(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Act No. 8665 of Oct. 17, 2007; hereinafter referred to as the "former Public Works Act"), Article 40(3)2 of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Presidential Decree No. 2072 of Feb. 29, 2008; hereinafter referred to as the "Enforcement Decree of the former Public Works Act"), the owner of a building who did not take measures for resettlement from Jan. 1, 2003, and who did not take measures for resettlement under the former Act on Acquisition of and Compensation for Loss from Land, etc. for Public Works Projects shall be deemed to be a person subject to the plan for resettlement under the former Act on Acquisition of and Compensation for Residents (hereinafter referred to as the Act).

Meanwhile, Article 21(2) of the former Urban Development Act provides that the Public Works Act shall apply mutatis mutandis to the expropriation of land, etc. necessary for an urban development project, except as otherwise provided for in the above Act, and the former Public Works Act delegates specific regulations on the establishment, etc. of relocation measures to the Presidential Decree. However, the main text of Article 78(4) provides that "the details of relocation measures include basic living facilities at a normal level, such as roads, water supply facilities, drainage facilities and other public facilities (including housing complexes constructed by the implementation of relocation measures) in the resettlement area (hereinafter referred to as "basic living facilities"), and directly provides that "if a project operator establishes and implements relocation measures, he/she shall bear the expenses incurred therein."

In full view of the structure, contents, and purport of the relevant laws and regulations and the policy needs to prevent speculative transactions arising from the implementation of public works under the Urban Development Act, it is reasonable to deem that the statutory base date for relocation measures falling under the "date of public announcement, etc. under the relevant Acts and subordinate statutes for public works" in an urban development project is the date of public announcement of designation of an urban development zone under Article 7 of the former Urban Development Act and Article 9-2 of the former Enforcement Decree of the Urban Development Act (amended by Presidential Decree No. 18738, Mar. 12, 2005) as the date of public announcement of designation of an urban development zone under the main sentence of Article 40(3)2 of the former Enforcement Decree of the Public Works Act. Based on this, it is reasonable to determine whether a person is a person subject to relocation measures under the main sentence of Article 40(3)2 of the former Enforcement Decree of the Public Works Act. Article 78(4) of the former Public Works Act, which requires a project operator to install basic living facilities and bear the expenses, and its provisions cannot be applied to the person subject to relocation measures (see, etc.

Meanwhile, Article 1 of the former Special Act on the Promotion of Urban Renewal (amended by Act No. 8786 of Dec. 2, 2007; hereinafter referred to as the "Urban Renewal Act") provides that "the purpose of this Act is to promote balanced urban development and contribute to improving the quality of life of citizens by prescribing matters necessary for comprehensively planning and efficiently promoting projects for improving the residential environment, expanding infrastructure, and restoring urban functions in underdeveloped areas of urban areas, and restoring urban functions." Article 2 subparagraph 2 of the same Act provides that "an urban development project under the Urban Development Act" as one of the "urban renewal acceleration projects" and Article 3 (2) provides that "in implementing urban renewal acceleration projects, matters not provided for in this Act shall be governed by the related Acts as provided for in this Act, with regard to the relevant projects, and Article 2 of the Addenda of the Urban Renewal Act (amended by Act No. 8786 of Dec. 30, 2005) provides that "the designation and public notice of urban renewal acceleration districts or the designation and public notice of urban renewal acceleration districts pursuant to this Act shall be deemed to be made by the competent Mayor/Do governor."

As such, the Special Provision on the existing project district in the Addenda of the Urban Renewal Act is established on the premise that urban development projects as urban renewal acceleration projects under the Urban Renewal Act and urban development projects under the former Urban Development Act are not essentially different.

In case of continuing an urban development project, which has gone through procedural guarantee such as residents' public inspection, by applying the Urban Renewal Promotion Act, it seems to be more efficient to ensure the continuity of the project already being implemented and avoid the repetition of dance procedure.

In light of the structure, purpose, content, legislative intent, etc. of these relevant regulations, where an urban development project that was implemented through the procedures under the former Act and subordinate statutes for urban development, such as the public inspection of residents and the designation and announcement of an urban development zone, is deemed to have been designated and publicly announced as an urban renewal acceleration district or to have been designated and publicly announced as an urban renewal acceleration district by satisfying the requirements under Article 2 of the Addenda of the above Urban Renewal Act, the statutory relocation plan base date for an area included in the previous urban development zone shall be deemed the date of public

B. The court below recognized the fact that part 152,813.6m in the EK district of Eunpyeong-gu Seoul Metropolitan Government (hereinafter "the project of this case") was incorporated into the project district of this case only on October 18, 2007 by the Seoul Special Metropolitan City public notice on October 18, 2007, and that the plaintiff K owned a building for residential use in the above BJ part before October 18, 2007 and resided there. However, the court below determined that the person who resided in the above BJ part of the project of this case is eligible for relocation measures as of October 18, 2007, and determined that the plaintiff K is eligible for relocation measures.

C. According to the reasoning of the lower judgment and evidence duly admitted by the lower court, ① a public notice on resident inspection to designate the said V district as an urban development zone was made around January 15, 2004. On February 25, 2004, in the instant project area designated as an urban development zone by U.S., the reservation site included BJ 152,813.6 square meters (hereinafter “the reservation site”). However, the specific development purpose is not determined on the land use plan; ② V urban development zone was designated as a V urban renewal acceleration district in accordance with the designation and urban renewal acceleration plan of the FW urban renewal acceleration district announced by Seoul Special Metropolitan City on October 19, 206. Since the specific land use plan of the instant reservation site became final and conclusive, it can be recognized that the aforementioned reservation area was changed to the address of the building located in the pertinent building after October 18, 2007, and the change of the land ownership transfer registration was made to the address of the Plaintiff 15,007.

According to the legal principles as seen earlier, whether a person is a person subject to relocation measures prescribed by the Act on Public Works in an urban development project to which Article 78(4) of the former Public Works Act applies should be determined on the basis of the date of public inspection and announcement as to the designation of an urban development zone. This also applies to an area included in the previous urban development zone where an urban development zone is recognized and designated and publicly announced as an urban renewal acceleration district pursuant to Article 2 of the Addenda of the Urban Renewal Act. Furthermore, just because the aforementioned BJ was designated as a reservation district in the initial urban development zone, it is difficult to view it as the case of an area excluded from the project zone. Furthermore, even in the case of a reservation district for which specific development purposes are determined later, the policy needs should be maintained to prevent speculative transactions arising from the implementation of the project. Therefore, it is reasonable to deem the base date of relocation measures as to the instant reservation district

As can be seen, Plaintiff K residing in a building for residential use, which belongs to the reservation of this case, acquired the ownership of the above building after January 15, 2004, which is the legal base date for the relocation measures, and made a move-in report to the address of the above building. As such, Plaintiff K cannot be deemed as a person subject to the relocation measures stipulated by the former Public Works Act, etc. Nevertheless, the lower court determined that Plaintiff K constitutes a person subject to the relocation measures to be subject to Article 78(4) of the former Public Works Act solely on the ground that Plaintiff K filed a move-in report before October 18, 2007, which is the date of the Seoul Special Metropolitan City public notice that reduces the reservation area. In so doing, the lower court erred by misapprehending the legal doctrine on the criteria for the classification of persons subject to the relocation measures stipulated by the former

2. Regarding ground of appeal No. 2

Examining the reasoning of the judgment below in light of the records, it is just that the court below determined that Plaintiff BC and BE constituted a person subject to relocation measures, and contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles as to

3. As to the third ground for appeal

Examining the reasoning of the judgment below in light of the records, the court below is just in rejecting the defendant's assertion that the road management authority should calculate the cost of basic living facilities on the basis of the area obtained by deducting 252,524 meters from the road site gratuitously reverted to the defendant, and there is no error of law by misapprehending the legal principles as to unjust enrichment,

4. Conclusion

Therefore, the part of the judgment of the court below against the defendant against the plaintiff K is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. All appeals against the plaintiffs except the plaintiff K are dismissed, and the costs of appeal against the plaintiffs except the plaintiff K are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.