Plaintiff (Law Firm Rate, Attorneys Kim Tae-tae et al., Counsel for plaintiff-appellant)

The head of Gangseo-gu Seoul Metropolitan Government (Law Firm Han, Attorney Kim Jong-soo, Counsel for defendant-appellant)

May 19, 2009

Seoul Administrative Court Decision 2008Guhap23887 Decided October 10, 2008

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant revoked on November 14, 2007 the disposition to exclude the plaintiff from the person eligible for special supply of national housing.

2. Purport of appeal

The same shall apply to the order.

1. Partial citement of judgment of the first instance;

The reasoning for the court’s explanation concerning this case is as follows, except for the following changes to the part after the “2.c. fact of recognition” of the reasoning of the judgment of the court of first instance, and therefore, it is identical to each corresponding part of the reasoning of the judgment of the court of first instance. Thus, it is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article

2. The modified part;

"Ac. Facts of recognition"

(1) Around January 7, 1972, the instant building was newly constructed for a residential purpose and used for that purpose. Around March 26, 2001, the purpose of the building was changed to a neighborhood living facility (the total floor area on the building ledger includes the total floor area of 66.12 square meters or the total area of 188 square meters up to the date of authorization of the implementation plan). Around the time of the authorization of the implementation plan, there was a building of 103 square meters in a string/mentary 78 square meters in a string/mentary lux, and a residential 78 square meters in a lux/mentary luxa, and a building of 3 square meters in a lux/mentary lub/mentblux 4 square meters

(2) From March 26, 2001, the Plaintiff used the instant building as a restaurant, and around November 2005, performed large-scale internal interior interior interior interior interior interior interior interior interior interior interior interior tyrology works, such as urban gas facility construction, toilets, and kitchens, and around August 2006, the Plaintiff left the restaurant with the Nonparty, who is a relative of the operation of the restaurant, as the tyroid scradation of the tyroid, has deteriorated. Around October 2007, the Plaintiff again operated the restaurant.

(3) On July 25, 2008, the Plaintiff: (a) opened a cafeteria with the Non-Party, and opened a scam, such as cambling, piano, clothes, and glag, in which the Plaintiff was in charge of the operation of the restaurant to the Non-Party; and (b) transferred the scambling of Gangseo-gu Seoul Metropolitan Government (number and apartment name omitted); and (c) transferred the scambling of the instant building

[Ground of recognition] Each of the evidence, evidence Nos. 9, evidence Nos. 11 through 13 (including paper numbers), evidence Nos. 3, and evidence Nos. 6, and the purport of the whole pleadings

D. Determination

Article 78 of the Public Works Act, Article 40 of the Enforcement Decree of the Public Works Act provides that the operator of a public project shall establish and implement relocation measures, such as the creation and supply of housing sites, for migrants who lose their base of living due to the implementation of the project. Article 19(1)3(c) of the Housing Act provides that "the owner of a house removed from the urban planning project" may specially supply national housing, etc. to "the owner of a house removed from the urban planning project" under the delegation of the Housing Act. Article 40(2) proviso of the Enforcement Decree of the Public Works Act provides that "if a project operator supplies housing sites or houses to a person subject to relocation measures (including cases of supplying housing by intermediation of the project operator) pursuant to the relevant Acts and subordinate statutes, such special supply of national housing, etc. is considered as a substitution of relocation measures provided for in Article 78(1) of the Public Works Act (Supreme Court Decision 2006Du8495 Decided November 29, 207).

However, Article 78(1) of the Public Works Act provides that a person who provides a "residential building" shall establish and implement relocation measures, and the above relocation measures are systems prepared by the State's active and political consideration as part of ensuring a living worthy of human dignity by restoring the previous living conditions to the migrants in its original purpose (see Supreme Court Decision 2001Da57778, Jul. 25, 2003). Article 19(1)3(c) of the Rules on Housing Supply provides that a building to be specially supplied with national housing shall be a building used as a residence, and even if the whole building needs not be provided as a residence, its main purpose shall be a residence, and whether the main purpose is a residence shall be determined regardless of the use entered in the public register, such as a building, etc.

According to the above facts, considering that the area used as a restaurant is larger than the area used as a residence, and the structure, appearance, interior facilities, and the present condition of the house of this case, the main use of the building of this case is recognized as a restaurant at the time of the approval of the execution plan, and it is difficult to recognize that the main use of the building of this case is a residence of this case at the time of the approval of the execution plan, and that part of the Gap evidence No. 10 is not believed, and it is insufficient to recognize that the main use of the building of this case is a residence of this case at the time of the approval of the execution plan.

Therefore, the instant disposition rejecting the Plaintiff’s application to grant a special right to purchase the national housing is not unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is unfair with different conclusions, so the defendant's appeal is accepted, and the plaintiff's claim is dismissed, and it is so decided as per Disposition.

Judges Ahn Young-chul (Presiding Judge)